UNPUBLISHED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Affirmed in part; vacated in part; and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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