UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LINDOYLE BRYANT, a/k/a Cubby,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-02-647)
Submitted: August 22, 2005 Decided: November 1, 2005
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Lee E. Berlinsky, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lindoyle Bryant was convicted by a jury of conspiracy to
possess with intent to distribute five kilograms or more of cocaine
(Count 1) and attempting to possess with intent to distribute five
kilograms or more of cocaine (Count 2). Bryant was sentenced to
151 months of imprisonment. He timely appeals alleging that:
(1) the district court erred by admitting into evidence the
recordings of certain telephone conversations; (2) the court erred
by admitting evidence of Bryant’s prior drug dealing; (3) the court
erred by holding him responsible for drug amounts in excess of ten
kilograms of cocaine; and (4) his sentence is invalid in light of
the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004). Since Bryant’s appeal, the Supreme Court has extended the
reasoning of its Blakely opinion to the federal sentencing
guidelines. See United States v. Booker, 543 U.S. __, 125 S. Ct.
738 (2005). For the reasons that follow, we affirm.
First, we find that the district court did not abuse its
discretion by admitting into evidence the recorded telephone
conversations between Carl Cooper and Cecil King. See United
States v. Squillacote, 221 F.3d 542, 563 (4th Cir. 2000) (stating
standard of review). The recordings were admitted into evidence as
statements of a coconspirator in furtherance of a conspiracy under
Fed. R. Evid. 801(d)(2)(E). The Government established that a
conspiracy existed, that the declarants Cooper and Bryant were
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members of the conspiracy, and that the statements were made in
furtherance of the conspiracy. United States v. Pratt, 239 F.3d
640, 643 (4th Cir. 2001).
Second, we find that the district court did not abuse its
discretion by allowing Cooper’s testimony regarding his and
Bryant’s prior purchases of approximately nineteen kilograms of
cocaine from Floyd Hicks from late 1998 to early 2002 under Fed. R.
Evid. 404(b). See United States v. Mark, 943 F.2d 444, 447 (4th
Cir. 1991) (stating review standard); United States v. Tanner, 61
F.3d 231, 237 (4th Cir. 1995) (noting that a trial court’s decision
to admit prior acts evidence will not be overturned unless
arbitrary or irrational). We find that the evidence was relevant
to an issue other than character, was necessary to prove an element
of the crimes charged, and was reliable; moreover, its probative
value was not substantially outweighed by its prejudicial nature.
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).
Next, Bryant alleges that the district court erred by
finding him responsible at sentencing for more than the ten
kilograms of cocaine sustained by the jury’s verdict. We find that
the district court did not clearly err in relying on the testimony
of Cooper regarding the prior drug purchases from Hicks to find
that Bryant was responsible for an additional nineteen kilograms of
cocaine. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.
1996) (noting that a sentencing court’s approximation of the amount
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of drugs for sentencing is not clearly erroneous if it is supported
by competent record evidence).
Finally, Bryant alleges, for the first time on appeal,
that his sentence violates the Sixth Amendment because he was held
responsible at sentencing for cocaine amounts beyond those
supported by the jury’s verdict, i.e., quantities in excess of ten
kilograms. Because Bryant failed to raise this issue in the
district court, we review this claim for plain error. United
States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005). To establish
plain error, Bryant must show that an error occurred, that the
error was plain, and that the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To establish
that a Sixth Amendment error occurred in his sentencing, Bryant
must show that the district court imposed a sentence exceeding the
maximum allowed based only on the facts that he admitted or that
were established by the jury’s verdict. See Booker, 125 S. Ct. at
756 (holding that “[a]ny fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a
reasonable doubt”); United States v. Hughes, 401 F.3d 540, 546-47
(4th Cir. 2005).
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Bryant seeks resentencing based only on the ten kilograms
of cocaine, which would give him a base offense level of 32 under
U.S. Sentencing Guidelines Manual § 2D1.1(c) (2003) and, with his
criminal history category of I, would give him a sentencing range
of 121 to 151 months of imprisonment. Because, however, his
instant 151-month sentence falls within this range, his claim
fails. See United States v. Evans, 416 F.3d 298 (4th Cir. 2005)
(holding there is no Sixth Amendment error when a sentence is
imposed within the range allowed by facts admitted by the defendant
or supported by a jury’s verdict).
Accordingly, we affirm Bryant’s sentence and convictions.
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
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