UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4839
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY ANTONIO BATES FELTON, a/k/a Capone,
Defendant - Appellant.
No. 05-4216
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TADASHI DEMETRIUS KEYES,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-03-8)
Submitted: December 14, 2005 Decided: February 7, 2006
Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.
No. 04-4839 affirmed; No. 05-4216 affirmed in part, vacated in
part, and remanded by unpublished per curiam opinion.
Robert A. Ratliff, SHIELDS, RATLIFF, GREEN & KERN, Mobile, Alabama;
Darryl A. Parker, Richmond, Virginia, for Appellants. John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia; Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Gregory Antonio Bates Felton and Tadashi Demetrius Keyes
were convicted of conspiracy to possess with intent to distribute
50 or more grams of cocaine base, in violation of 18 U.S.C. § 841
(a)(1) (2000) (Count One) and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1) (2000) (Count Four). Felton was also separately
convicted of possession of a firearm in furtherance of a drug
trafficking crime for which the death of a person was caused, which
killing was a murder as defined in 18 U.S.C. § 1111 (2000) (Count
Five). Felton was sentenced to two life terms, one on each of
Counts One and Five, and a consecutive 120-month term of
imprisonment on Count Four. Keyes was sentenced to life
imprisonment on Count One and a consecutive 120-month term of
imprisonment on Count Four. Felton and Keyes appeal their
convictions and sentences.
I. Challenges to Convictions
Felton first argues that his right to a jury trial was
denied, based on United States v. Booker, 125 S. Ct. 738 (2005),
because his conviction was based on a constitutionally defective
indictment. We find there was no violation of Felton’s right to a
jury trial because the indictment charged Felton with the use of a
firearm during and in relation to a drug trafficking offense in the
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course of which a killing that would constitute murder occurred,
the district court instructed the jury on each of the elements of
murder, and the jury found Felton guilty beyond a reasonable doubt.
We therefore affirm Felton’s convictions.
Keyes argues on appeal that there was insufficient
evidence to support his convictions, because the evidence did not
connect him to the drug trafficking organization. In reviewing a
claim of insufficient evidence, the verdict 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). Substantial evidence is defined as “that evidence
which ‘a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt.’” United States v. Newsome, 322 F.3d 328, 333
(4th Cir. 2003) (quoting United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (en banc)). The court reviews both direct
and circumstantial evidence and permits “the government the benefit
of all reasonable inferences from the facts proven to those sought
to be established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). In resolving issues of substantial evidence, this
court does not weigh evidence or reassess the factfinder’s
assessment of witness credibility. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989); United States v. Arrington, 719 F.2d
701, 704 (4th Cir. 1983); see also United States v. Sun, 278 F.3d
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302, 313 (4th Cir. 2002). Moreover, the uncorroborated testimony
of one witness or an accomplice may be sufficient to sustain a
conviction. United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir.
1997).
To prove conspiracy under 21 U.S.C. § 841 (2000), the
government must prove an agreement to violate a federal drug law,
the defendant’s knowledge of the conspiracy, and the defendant’s
willing participation. United States v. Strickland, 245 F.3d 368,
384-85 (4th Cir. 2001). A defendant may be convicted of conspiracy
without knowing all the conspiracy’s details, as long as he joins
the conspiracy understanding its unlawful nature and willfully
joins in the plan on at least one occasion. United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). Once the
existence of a conspiracy is established, only a slight link
between a defendant and the conspiracy is needed to support a
conviction. United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.
1992). The knowledge and participation elements of conspiracy may
be shown by circumstantial evidence. Strickland, 245 F.3d at 385.
Viewing the evidence in the light most favorable to the
government, we conclude there was sufficient evidence from which a
jury could reasonably infer there was a drug trafficking
conspiracy, Keyes was a willing participant in that conspiracy, and
Keyes possessed a firearm in furtherance of the conspiracy.
Accordingly, we affirm Keyes’ convictions.
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II. Challenges to Sentences
Keyes argues that the district court’s application of the
murder cross-reference, pursuant to the U.S. Sentencing Guidelines
Manual (“USSG”) § 2D1.1(d)(1) (2003), and the enhancement for
obstruction of justice violate his Sixth Amendment rights contrary
to Booker because they were based on judicial fact-finding.
Because Keyes objected below based on Blakely v. Washington, 542
U.S. 296 (2004), this claim is reviewed under harmless error
analysis. United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003). The government bears the burden in harmless error review of
showing beyond a reasonable doubt that the error did not affect the
defendant’s substantial rights. Id. at 405. Affecting substantial
rights means that the error affected the outcome of the
proceedings. United States v. Stokes, 261 F.3d 496, 499 (4th Cir.
2001).
In Booker, the Supreme Court held that Blakely applied to the
federal sentencing guidelines and 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. 125 S.
Ct. at 746, 750. We find the district court erred in applying the
murder cross-reference to Keyes’ sentence, because the murder was
not charged in the indictment or found by a jury beyond a
reasonable doubt as to Keyes. We further find that the application
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of the enhancement for obstruction of justice was in error because
it was based on judicial fact-finding. Moreover, we find the
errors affected Keyes’ substantial rights because the sentence
imposed was longer than the term of imprisonment that the district
court could have imposed based solely on the jury’s findings. See
United States v. Hughes, 401 F.3d 540, 548 (4th Cir. 2005). We
therefore vacate Keyes’ sentence and remand for resentencing.
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. See 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) (2000), 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) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Felton similarly challenges the application of the murder
cross-reference, pursuant to USSG § 2D1.1(d)(1), and the
enhancement for obstruction of justice, arguing they violate Booker
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because they were based on judicial fact-finding. We find that
because the jury found the elements of murder beyond a reasonable
doubt as to Felton, there was no Sixth Amendment error in the
application of the murder cross-reference to Felton’s sentence. We
find the enhancement for obstruction of justice to Felton’s
sentence was in error because the enhancement was based on judicial
fact-finding. However, because the application of the enhancement
to Felton’s sentence would not have lessened his guideline range of
life imprisonment on Counts One and Five, or his mandatory minimum
sentence of 10 years on Count Four, the error did not affect his
substantial rights and was thus harmless. See Hughes, 401 F.3d at
548.
Finally, Felton argues that the drug amount attributed to
him was erroneous because the amount was based on unreliable
evidence and the district court erred in attributing the full 1.5
kilograms to Felton without determining whether the drug amount was
reasonably foreseeable and within Felton’s specific agreement in
the offense. We find that because the murder cross-reference
applies without regard to drug quantity, the amount of drugs
attributed to Felton had no effect on his total offense level and
resultant sentence. Accordingly, we affirm Felton’s sentence.
In sum, we affirm Felton’s convictions and sentences,
affirm Keyes’ convictions, and vacate and remand Keyes’ sentence
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for resentencing consistent with Booker.* 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.
No. 04-4839 AFFIRMED
No. 05-4216 AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
*
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 Keyes’ sentencing.
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United States v. Felton
Court: Court of Appeals for the Fourth Circuit
Date filed: 2006-02-07
Citations: 166 F. App'x 64
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