UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NORWOOD WALLACE BARBER, JR., a/k/a Pee Wee
Barber,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:05-cr-00015-sgw)
Argued: November 28, 2006 Decided: April 2, 2007
Before NIEMEYER and MICHAEL, Circuit Judges, and Joseph R.
GOODWIN, United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Janipher Winkfield Robinson, ROBINSON & GREENE, Richmond,
Virginia, for Appellant. William Frederick Gould, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norwood “Pee Wee” Barber was convicted of conspiracy to
distribute and possess with intent to distribute 50 grams or more
of cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 846,
841(a)(1). Because he had twice previously been convicted of drug
felonies, he was sentenced to a mandatory minimum of life
imprisonment.
On appeal, he contends that (1) the evidence was insufficient
to convict him of drug conspiracy; (2) the district court erred in
imposing the mandatory life sentence, rather than considering the
statutory sentencing factors under 18 U.S.C. § 3553(a); and (3)
his life sentence was cruel and unusual, in violation of the
Eighth Amendment. Finding these arguments without merit, we
affirm.
I
Tobasco Haliburton was a regional distributor for a drug ring
headed by Norberto “Eddie” Reveria, working in the area of
Harrisonburg, Virginia. Haliburton was responsible for bringing
more than 11 kilograms of crack cocaine into the Harrisonburg
area.
Barber first met Haliburton in September 2002, when
Haliburton agreed to front Barber 500 grams of crack cocaine -- an
arrangement that permitted Barber to pay Haliburton back from the
proceeds of drug sales. According to Haliburton, he thereafter
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supplied Barber with, conservatively, 200 grams of crack cocaine
per week between October 2002 and June 2003. On multiple
occasions during that period, Barber accepted the new package of
crack even though he had not finished selling his previous
allotment of crack.
On occasion during the conspiracy, Barber sent Jackie Raines
to pick up crack from Haliburton, and Haliburton sent his cousin,
Oran Wood, to pick up money from Barber. Haliburton’s girlfriend,
Shawnee Crawford, testified that she also received drug money from
Barber via Jackie Raines. Haliburton maintained Barber’s
telephone number in his cell phone and a paper ledger reflecting
his transactions with Barber. He was the principal witness
testifying against Barber at trial.
Another conspirator, Shannon Bearfield, testified at trial
that he supplied Barber with cocaine and crack cocaine on credit
in amounts greater than 50 grams. On one occasion he sold Barber
nine ounces (approximately 255 grams) of crack cocaine and
cocaine.
Finally, two other individuals, Todd Campbell and Ernest
Darcus, testified that Barber sold or fronted them crack.
Campbell testified that Barber not only fronted him crack cocaine
but also told him what price to charge.
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Evidence was presented at trial that Barber’s cell phone
contained the phone numbers of both Campbell and Darcus, as well
as those of Haliburton, Wood, and Bearfield.
II
Barber first challenges the sufficiency of the evidence to
support the conspiracy conviction. We review the verdict
deferentially, affirming if a rational jury, viewing the evidence
in the light most favorable to the government, could have returned
a guilty verdict. See United States v. Burgos, 94 F.3d 849, 854,
857 (4th Cir. 1996). The evidence must support each element of
the offense, and in drug conspiracies, the evidence must support
findings “(1) [that] an agreement to possess cocaine with intent
to distribute existed between two or more persons; (2) [that] the
defendant knew of the conspiracy; and (3) [that] the defendant
knowingly and voluntarily became a part of this conspiracy.” Id.
at 857.
The government mounted a case that included the testimony of
two of Barber’s drug suppliers, two go-betweens who ferried drugs
and money between Barber’s suppliers and Barber, and two of
Barber’s customers. Moreover, the testimony of each witness
corroborated the testimony of the others, demonstrating that
Barber was part of a hierarchical conspiracy to distribute crack
cocaine. The fronting arrangements between Barber and Haliburton,
Bearfield, Campbell, and Darcus, respectively, readily support the
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government’s conspiracy case. Fronting, an arrangement where one
party gives the other drugs on credit, to be paid back once the
drugs are sold, constitutes the heart of conspiratorial conduct,
as the parties necessarily agree to distribute drugs. The
financial arrangement cannot work until the drugs are sold. The
fronting transaction also requires that each party be aware that
drugs will be sold. Finally, the contractual character of the
transaction proves that each party enters voluntarily. In this
case, the quantities involved in the various fronting transactions
were consistently over 50 grams each. In short, the evidence
supporting the jury’s verdict was strong.
III
Barber next contends that his life sentence was entered
illegally because the district court imposed the sentence without
considering and applying the factors listed in 18 U.S.C. §
3553(a). This argument fails to account for the fact that the
life sentence was mandated by statute.
Under 21 U.S.C. § 841(b)(1)(A), “[i]f any person commits a
violation of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment
without release.” Because Barber had three prior convictions for
drug felonies, the district court followed the command of these
statutes in imposing a life sentence.
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Barber’s argument that the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), required the district judge
to consult the sentencing guidelines and sentencing factors under
18 U.S.C. § 3553(a) is specious. First, the Sentencing Guidelines
are irrelevant when the statutory minimum sentence is life. The
Guidelines specify that when the statutory minimum is greater than
or equal to the guidelines maximum, the sentence imposed must be
the statutory sentence. See U.S.S.G. § 5G1.1(b) (2004).
Moreover, nothing in Booker authorizes a judge to give a
discretionary sentence below the statutory minimum. See United
States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“Booker did
nothing to alter the rule that judges cannot depart below a
statutorily provided minimum sentence . . . a district court has
no discretion to impose a sentence outside of the statutory range
established by Congress”).
Barber’s argument is without merit.
IV
Finally, Barber contends that his life sentence is so
disproportionate to his crimes as to constitute "cruel and
unusual" punishment under the Eighth Amendment.
Barber waived this argument by failing to present it to the
district judge. See Fed. R. Crim. P. 51(b), 52(b). But even if
it had been preserved, it would fare no better. Considering the
three-factor test articulated in Solem v. Helm, 463 U.S. 277, 290-
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91 (1983) (“[1] the gravity of the offense and the harshness of
the penalty; [2] the sentences imposed on other criminals in the
same jurisdiction, and [3] the sentences imposed for commission of
the same crime in other jurisdictions”), the life sentence is
unquestionably legal.
The gravity of the offense in this case was severe, as Barber
was conservatively responsible for distributing at least 1.5
kilograms of crack cocaine during the course of the conspiracy,
amounting to 3,000 and 15,000 doses for use. U.S. Sentencing
Comm’n, Cocaine and Federal Sentencing Policy 17 (2002). And the
social damage caused by crack cocaine has been amply documented.
See United States v. D’Anjou, 16 F.3d 604, 613 (4th Cir. 1994)
(“Drug use, and the use of crack in particular, has become a
pervasive, destructive force in American society”).
Addressing the other Solem factors, we need merely follow
predecessor courts to consider comparable sentences for comparable
crimes. This court and courts around the country have upheld the
federal “three strikes” rule for drug offenders. See United
States v. Kratsas, 45 F.3d 63, 69 (4th Cir. 1995) (upholding life
sentence for third offense of distributing 18 kilograms of powder
cocaine); United States v. Hill, 30 F.3d 48 (6th Cir. 1994)
(upholding life sentence for third offense of possession with
intent to distribute 178 grams of crack cocaine); United States v.
Angulo-Lopez, 7 F.3d 1506 (10th Cir. 1993) (same, 48 kilograms of
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crack cocaine); United States v. Johnson, 944 F.2d 396 (8th Cir.
1991) (same, at least 87 grams of crack cocaine). The Supreme
Court has upheld lengthy sentences under a state drug statute,
see Harmelin v. Michigan, 501 U.S. 957 (1991) (life imprisonment
for possession of 672 grams of cocaine), and under a state anti-
recidivism statute, see Ewing v. California, 538 U.S. 11 (2003)
(life imprisonment under California “three strikes” law, where
third strike was the theft of $1200 in golf clubs). In upholding
these sentences, the courts have concluded that harsh sentences
may be applied to both drug offenders and recidivists. Barber’s
case appears unexceptional in light of the sentences that have
already been upheld against Eighth Amendment challenges.
Finally, we note that Barber earned no wages in 17 of the 21
years he has been of working age, and during the remaining 4
years, he earned roughly $6000 in the aggregate. As one who
subsisted nearly exclusively through drug dealing, Barber is among
those on whom the government can place the “onus of one who is
simply unable to bring his conduct within the social norms
prescribed by the criminal law. . . .” Rummell v. Estelle, 445
U.S. 263, 284 (1980).
The judgment of the district court is
AFFIRMED.
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