United States v. Newton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4534

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JESSIE WILLIAM NEWTON,

Defendant - Appellant.

No. 03-4541

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KELLY GEORGE STANBACK,

Defendant - Appellant.

No. 03-4542

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
 versus

HOWARD J. BEARD,

Defendant - Appellant.

No. 03-4631

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ARNOLD LLOYD JACKSON,

Defendant - Appellant.

No. 03-4660

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CALVIN EUGENE BUCHANAN,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-02-20)

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Submitted: July 8, 2005 Decided: July 29, 2005

Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part; vacated in part; and remanded by unpublished per
curiam opinion.

Craig W. Sampson, SAMPSON LAW FIRM, PLC, Richmond, Virginia,
Gregory W. Bowman, Winchester, Virginia, John S. Hart, HART &
PARKER, PC, Harrisonburg, Virginia, B. Stephanie Commander, B.
STEPHANIE COMMANDER, PLC, Charlottesville, Virginia, Billy Lee
Ponds, THE PONDS LAW FIRM, Washington, D.C., for Appellants. John
L. Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Roanoke, Virginia, Thomas E. Booth,
Attorney, Department of Justice, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

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PER CURIAM:

The Defendants were convicted of various drug and firearm

offenses. They challenge their convictions for conspiracy to

distribute crack cocaine based on sufficiency of the evidence and

challenge their sentences, including challenges in light of United

States v. Booker, 125 S. Ct. 738 (2005).

The Defendants participated in crack cocaine trafficking

in Front Royal, Virginia. Defendants Kelly Stanback and Arnold

Jackson were cousins and supplied crack to local dealers.

Defendants Calvin Buchanan and Howard Beard worked together and

also supplied local dealers in Front Royal, some of whom also sold

drugs for Stanback and Jackson. Defendant Jessie Newton sold for

Stanback and Jackson and also had interaction with a dealer for

Buchanan and Beard. The Defendants argue that, at best, the

Government’s evidence showed three separate conspiracies and not

the single overall conspiracy charged in the indictment.

I.

The Appellants argue that three separate conspiracies

were proven and that the evidence of the separate conspiracies was

represented to the jury as evidence of a single conspiracy. They

argue that the Government’s evidence does not demonstrate an

overall agreement or joint business venture among the smaller

conspiracies, interdependence, or overlap of key actors, methods,

or goals.

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 The Government bears the burden of proving the single

conspiracy as charged in the indictment. United States v. Hines,

717 F.2d 1481, 1489 (4th Cir. 1983). The existence of a

conspiracy, “as well as an agreement to participate in the

conspiracy, is a question of fact for the jury[,] and [this court]

must affirm its finding . . . ‘unless the evidence, taken in the

light most favorable to the government, would not allow a

reasonable jury so to find.’” United States v. Harris, 39 F.3d

1262, 1267 (4th Cir. 1994) (quoting United States v. Urbanik, 801

F.2d 692, 695 (4th Cir. 1986)); see Glasser v. United States, 315

U.S. 60, 80 (1942).

In United States v. Banks, 10 F.3d 1044 (4th Cir. 1993),

several appellants challenged their conspiracy convictions,

alleging the evidence demonstrated only isolated transactions, not

an overarching conspiracy. In concluding the evidence was

sufficient to support the convictions, the court explained:

[I]t is not necessary to proof of a
conspiracy that it have a discrete,
identifiable organizational
structure; the requisite agreement
to act in concert need not result in
any such formal structure, indeed
frequently, in contemporary drug
conspiracies, [it] contemplates and
results in only a loosely-knit
association of members linked only
by their mutual interest in
sustaining the overall enterprise of
catering to the ultimate demands of
a particular drug consumption
market. . . . Furthermore, the fact
that parallel suppliers, or

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 middlemen, or street dealers serving
such a market may sometimes, or even
always, compete for supplies or
customers in serving that market
does not on that account alone
disprove either the existence of a
single conspiracy to achieve the
overall results of their several
efforts, or the participation of
particular ones of them in that
conspiracy.

Id. at 1054; see also United States v. Burgos, 94 F.3d 849, 858

(4th Cir. 1996) (en banc).

Appellants argue that there is no evidence that Stanback

and Jackson directly knew Beard and Buchanan. However, each co-

conspirator need not know each other in order for all of them to be

engaged in a single conspiracy. See United States v. Crockett, 813

F.2d 1310, 1317 (4th Cir. 1987); see also United States v. Gray, 47

F.3d 1359, 1368 (4th Cir. 1995). Rather, the touchstone analysis

is whether there is an “overlap of key actors, methods, and goals.”

United States v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001)

(internal quotation marks and citation omitted). Several co-

conspirators tied the five men together in their venture to

distribute narcotics. Tresvant, Fitzhugh, Lopez, Newton, and

Thompson all bought their drugs from the Stanback/Jackson team and

the Beard/Buchanan team.1

1
The Appellants’ brief makes many references to the
unreliability of the evidence because it was either not
corroborated or testimony from a drug dealer or user. However,
the uncorroborated testimony of one witness or an accomplice may
(continued...)

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 The Appellants also argue that the Government did not

prove an overarching goal among the Appellants. However, “members

linked only by their mutual interest in sustaining the overall

enterprise of catering to the ultimate demands of a particular drug

consumption market” is sufficient to show a common goal. Banks, 10

F.3d at 1054. Viewing the evidence in the light most favorable to

the Government, each Appellant acted as part of the same conspiracy

with its goal being the distribution of narcotics to users in the

Front Royal area. The four main suppliers were Stanback, Jackson,

Beard, and Buchanan. These four men shared dealers, including

Newton, whom they sold to in order to serve the demand for drugs in

Front Royal.

However, even assuming, without deciding, that there was

a variance, the Appellants are not entitled to relief from their

convictions. Under United States v. Howard, 115 F.3d 1151, 1157

(4th Cir. 1997), a variance demonstrating multiple conspiracies

does not constitute reversible error unless the defendant

demonstrates that he has been prejudiced by the variance between

the single conspiracy charged in the indictment and the multiple

conspiracies proven at trial. See also United States v. Miller,

471 U.S. 130, 136 (1985); United States v. Bollin, 264 F.3d 391,

406 (4th Cir. 2001). When the indictment alleges a single drug

1
(...continued)
be sufficient to sustain a conviction. United States v. Wilson,
115 F.3d 1185, 1190 (4th Cir. 1997).

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conspiracy but the proof demonstrates multiple conspiracies,

prejudice only occurs if: (1) the defendant is surprised by the

evidence and was unable to present a defense or (2) the number of

conspirators and conspiracies was so large that there was a

substantial likelihood that the jury transferred proof against one

conspirator and conspiracy to another charged conspirator in an

unrelated conspiracy. See Bollin, 264 F.3d at 406, United

States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).

The likelihood of spillover evidence is minimized when

the evidence against each defendant is established by direct

evidence, such as controlled buys from the defendant, see United

States v. Ford, 88 F.3d 1350, 1360 (4th Cir. 1996); when the

district court instructs the jury to consider each defendant’s

guilt independently or cautions against transferring evidence to

other defendants, see Bollin, 264 F.3d at 406; or when the number

of defendants and conspiracies is relatively small. See, e.g.,

Berger v. United States, 295 U.S. 78, 83 (1935) (two conspiracies);

Bollin, 264 U.S. at 406 (four defendants and three conspiracies);

United States v. Alred, 144 F.3d 1405 (11th Cir. 1998) (five

defendants); Kennedy, 32 F.3d at 883 (eight defendants and three

conspiracies).

Here, there was direct testimony regarding the dealings

of each Appellant. Further, Stanback, Buchanan, and Beard were

taped during controlled buys. The Appellants were not surprised by

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the evidence and do not claim that they may face a second

prosecution for the same offense. Finally, the district court

clearly cautioned the jury against transferring evidence from one

defendant or offense to another defendant or offense. We therefore

conclude that there is no reversible infirmity in the convictions

for the single conspiracy charged.

II.

Newton and Jackson also challenge the sufficiency of the

evidence that each engaged in any conspiracy to distribute crack

cocaine. A defendant challenging the sufficiency of the evidence

faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a

conviction on grounds of insufficiency of evidence should be

‘confined to cases where the prosecution’s failure is clear.’”

United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting

Burks v. United States, 437 U.S. 1, 17 (1978)). In reviewing a

sufficiency challenge, “[t]he verdict of a jury must be sustained

if there is substantial evidence, taking the view most favorable to

the Government, to support it.” Glasser v. United States, 315 U.S.

60, 80 (1942).

In evaluating the sufficiency of the evidence, this court

does not “weigh the evidence or review the credibility of the

witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997). Where the evidence supports differing reasonable

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interpretations, the jury will decide which interpretation to

believe. Id.

In order to establish that a defendant participated in a

drug conspiracy, the Government must prove: (1) an agreement with

another person to violate the law; (2) knowledge of the essential

objectives of the conspiracy; (3) knowing and voluntary

involvement; and (4) interdependence among the alleged

conspirators. United States v. Stewart, 256 F.3d 231, 250 (4th

Cir. 2001). Construing the evidence in the light most favorable to

the Government, we conclude that the evidence was sufficient to

support Newton and Jackson’s convictions.

III.

The Appellants claim that the sentencing enhancements

they received violated the decision announced by the Supreme Court

in Booker. Because Newton, Beard, and Buchanan did not raise this

issue at sentencing, their sentences are reviewed for plain error.

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing

United States v. Olano, 507 U.S. 725, 731-32 (1993)). Stanback and

Jackson challenged their enhancements at their sentencing hearings,

which were held prior to the decision in Blakely v. Washington, 124

S. Ct. 2531 (2004), based upon Apprendi v. New Jersey, 530 U.S. 466

(2000) and therefore their sentences are reviewed for harmless

error. The harmless error standard permits an error at sentencing

to be disregarded if the reviewing court is certain that any such

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error “did not affect the district court’s selection of the

sentence imposed.” Williams v. United States, 503 U.S. 193, 203

(1992).

The Supreme Court held in Booker, 125 S. Ct. at 746, 750,

that the mandatory manner in which the federal sentencing

guidelines required courts to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence

violated the Sixth Amendment. The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a sentence

within the applicable guideline range), and 18 U.S.C. § 3742(e)

(2000) (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 756-57).

Newton challenges the drug quantity and career offender

status attributed to him on Sixth Amendment grounds and argues that

the district court erred in denying his motion for a downward

departure for overstating the seriousness of his criminal history.

The district court found that the career offender enhancement, U.S.

Sentencing Guidelines Manual § 4B1.1(b)(A) (2002), applied to

Newton. The district court did not specifically rule on the

objection as to drug quantity because the career offender status

determined the applicable criminal history and offense level. In

order for Newton to be designated a career offender, the Government

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had to establish (1) that Newton was at least 18 at the time of the

instant offense, (2) that the instant offense is a felony that is

either a “crime of violence” or a “controlled substance offense,”

and (3) that Newton had at least two prior felony convictions for

either a “crime of violence” or a “controlled substance offense.”

USSG § 4B1.1(a) (2002); United States v. Harp, 406 F.3d 242, 245

(4th Cir. 2005).

Newton argues that the finding that he is a career

offender constituted impermissible judicial fact-finding, but

Booker specifically excepted prior convictions from its requirement

that facts be admitted or proven to a jury beyond a reasonable

doubt. Booker, 125 S. Ct. at 756. Newton’s prior convictions

qualified as crimes of violence as a matter of law; no further

judicial fact-finding was required to reach this conclusion. See

United States v. Ward, 171 F.3d 188, 192 (4th Cir. 1999) (court’s

inquiry into career offender status generally limited to “the fact

of conviction and the statutory elements of the prior offense”).

Thus, the district court did not err in its ruling that Newton

qualified for the career offender sentence enhancement.

In Harp, this court, applying the plain error standard,

found that even if the district court committed plain error when it

determined that the defendant was a career offender without the

elements of that designation having been charged in an indictment,

this court would not exercise its discretion to correct that error.

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Harp, 406 F.3d at 247. In Almendarez-Torres v. United States, 523

U.S. 224 (1998), the Supreme Court held that “the government need

not allege in its indictment and need not prove beyond reasonable

doubt that a defendant had prior convictions for a district court

to use those convictions for purposes of enhancing a sentence.”

Although the opinion in Apprendi v. New Jersey, 530 U.S. 466

(2000), expressed some uncertainty regarding the future vitality of

Almendarez-Torres, this court has subsequently clarified that

Almendarez-Torres was not overruled by Apprendi, and remains the

law. See United States v. Sterling, 283 F.3d 216, 220 (4th Cir.

2002); see generally Shepard v. United States, 125 S. Ct. 1254

(2005) (discussing documents that a sentencing court may consider

in determining whether a prior conviction is considered a violent

felony). We therefore conclude that the district court did not err

in designating Newton as a career offender and Newton’s sentence

did not violate the Sixth Amendment.

Newton argued at sentencing and on appeal that the career

offender status and his criminal history score overstated the

seriousness of his criminal record and therefore warranted a

downward departure. The Sentencing Guidelines Commission has

acknowledged that there may be cases where “a defendant’s criminal

history category significantly over-represents the seriousness of

the defendant’s criminal history or the likelihood that the

defendant will commit further crimes.” USSG § 4A1.3 (2002).

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Although Newton’s felony convictions were committed when he was

sixteen and seventeen years of age, his criminal history

demonstrates a continued pattern of illegal activity, with a

conviction nearly every year from age sixteen to twenty-five, with

the exception of the years that he was incarcerated. If a downward

departure was given on this basis, it would effectively nullify the

career offender enhancement by awarding a downward departure on the

grounds that the seriousness of Newton’s criminal history was

overstated. In United States v. Weddle, 30 F.3d 532, 536 (4th Cir.

1994), the court disapproved of “the notion that criminal history

points accrued under [Chapter Four of the Sentencing Guidelines]

may be offset by way of a downward departure under U.S.S.G.

§ 4A1.3.” On the facts of Newton’s case, we conclude that no

departure was justified on the grounds that Newton’s criminal

history was overstated.

The remaining Appellants also contend that their Sixth

Amendment right to a jury trial was violated because they were

sentenced on facts found by the court and not by the jury. The

Government agrees that the cases should be remanded for

resentencing in light of Booker. Because Stanback, Beard, Jackson,

and Buchanan received higher sentences than would have been

permissible based only on the jury’s findings, we vacate and remand

their sentences for resentencing under an advisory guidelines

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system.2 See Hughes, 401 F.3d at 547-49, 555-56 (finding that

Hughes had satisfied all three prongs of the plain error test set

forth in United States v. Olano, 507 U.S. 725, 732 (1993), when he

was sentenced to a sentence substantially longer than the sentence

permitted based purely on the facts found by a jury, and that the

court should exercise its discretion to recognize the error).

Although the 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. Sentencing courts should first determine the appropriate

sentencing range under the Guidelines, making all factual findings

appropriate for that determination. See Hughes, 401 F.3d at 546.

The court should consider the Guideline range, along with the other

factors described in 18 U.S.C. § 3553(a) (2000), and then impose a

sentence. Id. If that sentence falls outside the Guideline range,

the court should explain its reasons for departure as required by

18 U.S.C.A. § 3553(c)(2) (West Supp. 2004). Id. The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Appellants’ sentencing.
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”).

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 We therefore affirm all the Appellants’ convictions and

affirm Newton’s sentence and vacate Stanback, Beard, Jackson, and

Buchanan’s sentences and remand for further proceedings consistent

with Booker and Hughes. We grant Buchanan’s motion to file a pro

se supplemental brief and Jackson’s motion to file a supplemental

brief. We deny the Government’s motion to place the cases in

abeyance pending the Court’s disposition of the petition for

rehearing filed in Hughes as moot. 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

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