UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL PATTERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-99-165-10-V)
Submitted: July 8, 2005 Decided: August 9, 2005
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Jennifer Marie
Hoefling, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darryl Patterson appeals from his conviction for
conspiracy to possess with intent to distribute crack cocaine and
the 360-month sentence imposed. He challenges the sufficiency of
the evidence of a single, rather than multiple, conspiracies, and
the sufficiency of the evidence that he remained a member of the
conspiracy despite his incarceration for part of the time.
Patterson also contends that the district court committed plain
error by not instructing the jury about the five-year limitations
period and abused its discretion in denying his motion for a new
trial. Patterson also challenges the application of the murder
cross-reference in determining his sentence and asserts that the
district court erred in determining the extent of the downward
departure awarded. For the reasons that follow, we affirm
Patterson’s conviction but vacate his sentence and remand for
resentencing.
Viewing the evidence in the light most favorable to the
government, we find that the evidence was sufficient for the jury
to find that Patterson was a member of a single conspiracy and that
he remained a member of the conspiracy after his incarceration.
See Glasser v. United States, 315 U.S. 60, 80 (1942) (providing
standard); United States v. Crockett, 813 F.2d 1310, 1317 (4th cir.
1987). Resolving all reasonable inferences in favor of the
government, see United States v. Reavis, 48 F.3d 763, 771 (4th Cir.
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1995), we also find that Patterson failed to make a sufficient
showing that he “acted to defeat or disavow the purposes of the
conspiracy.” United States v. Barsanti, 943 F.2d 428, 437 (4th
Cir. 1991). Thus, he is presumed to have continued his membership
in the conspiracy. See United States v. West, 877 F.2d 281, 289-90
& n.4 (4th Cir. 1989).
Patterson next contends that the district court erred in
denying his motion for a new trial based on: (1) the admission of
evidence of unrelated drug deals and murders; (2) a newspaper
article mentioning Patterson’s prior convictions that was published
during the trial; and (3) the weight of the evidence of multiple,
rather than a single, conspiracy. We find no abuse of discretion
in the district court’s ruling. See United States v. Arrington,
757 F.2d 1484, 1486 (4th Cir. 1995) (providing standard); United
States v. Francisco, 35 F.3d 116, 119 (4th Cir. 1994) (discussing
presumption that jury follows instructions given); Crockett, 813
F.2d at 1317 (discussing factors to consider in finding single or
multiple conspiracies).
Patterson also asserts that the district court plainly
erred by not instructing the jury on the five-year limitations
period. See 18 U.S.C.A. § 3282 (West Supp. 2005); United States v.
Matzkin, 14 F.3d 1014, 1017-18 (4th Cir. 1994) (reviewing for plain
error the omission of jury instruction on statute of limitations
raised for first time on appeal). We find that Patterson waived
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this defense by not asserting it at trial. See Matzkin, 14 F.3d at
1017 (“The statute of limitations [] is not jurisdictional. It is
an affirmative defense that may be waived.”). Additionally,
because there was sufficient evidence that Patterson engaged in
conduct in furtherance of the conspiracy within five years prior to
the date of the indictment, we find no plain error in the court’s
failure to sua sponte instruct the jury on the statute of
limitations. See Glasser, 315 U.S. at 80; West, 877 F.2d at 289-90
& n.4; Barsanti, 943 F.2d at 437.
Citing United States v. Booker, 125 S. Ct. 738 (2005),
Smith argues his sentence is unconstitutional because it was based
on facts that were neither charged in the indictment nor found by
the jury beyond a reasonable doubt. The jury found Patterson
guilty of the drug conspiracy charge and also found that Patterson
was accountable for “50 grams or more of cocaine base.” Based on
these findings alone, Patterson’s offense level was 32 and his
guideline sentencing range was 168 to 210 months imprisonment. See
U.S. Sentencing Guidelines Manual, Ch. 5, Pt. A (Sentencing Table)
(2000).
However, the court applied the cross-reference in USSG
§ 2D1.1(d)(1) to USSG § 2A1.1 (First Degree Murder), upon its
finding that Andre “Cadillac” Nelson was killed during an act in
furtherance of the conspiracy. This finding increased Patterson’s
offense level to 43 and the Sentencing Guidelines prescribed a
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sentence of life imprisonment. The district court then departed
downward two levels, finding that Nelson was not killed
intentionally and Patterson was not the one who shot Nelson. See
USSG § 2A1.1, comment. (n.1). Patterson’s sentencing range was 360
months to life imprisonment. The court sentenced Patterson to 360
months.
In Booker, the Supreme Court held that the federal
sentencing guidelines’ mandatory scheme—which provides for
sentencing enhancements based on facts found by the court—violated
the Sixth Amendment. 125 S. Ct. at 746. The Court remedied the
constitutional violation by making the guidelines advisory. Id. at
746, 756-57. In United States v. Hughes, 401 F.3d 540 (4th Cir.
2005), this court held that a sentence enhanced based on facts
found by the court, rather than upon facts found by the jury or
admitted by the defendant, constitutes plain error that affects the
defendant’s substantial rights and warrants reversal. Id. at 547-
48.
In light of Booker and Hughes, we find that the district
court erred in imposing a sentence under the federal sentencing
guidelines as they existed prior to Booker.1 Accordingly, we
1
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 Patterson’s 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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vacate Patterson’s sentence and remand for resentencing consistent
with Booker and its progeny.2 See id. at 546 (citing Booker 125 S.
Ct. at 764-65, 767 (Breyer, J., opinion of the Court)).
On remand, the district court may again find that the
murder cross-reference applies and again be asked to depart
downward from offense level 43. Therefore, we will now address
Patterson’s challenge to the district court’s determination of the
extent of the departure. Application Note 1 to USSG § 2A1.1
provides: “If the defendant did not cause the death intentionally
or knowingly, a downward departure may be warranted.” USSG
§ 2A1.1, comment. (n.1). In determining the extent of the
departure, the Guidelines instruct that the court should consider
“the defendant’s state of mind (e.g., recklessness or negligence),
the degree of risk inherent in the conduct, and the nature of the
underlying offense conduct.” Id. The Note limits the extent of
the departure to not below the offense level for second degree
murder (level 33) or below the level determined without application
2
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)
(West 2000 & Supp. 2005), 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.
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of the cross-reference. Id. Here, the district court
appropriately considered the relevant factors and departed downward
by two levels. Although the court referenced the departure allowed
for a minor role in an offense, the court clearly did not confuse
the applicable standards, as Patterson contends it did.
In conclusion, although we affirm Patterson’s conviction,
we vacate his sentence and remand for resentencing. 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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