UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4907
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK ANTHONY TIMMONS, a/k/a Red,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-05-19)
Argued: March 16, 2007 Decided: May 1, 2007
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Williams and Judge King concurred.
ARGUED: Alan Hideto Yamamoto, Alexandria, Virginia, for Appellant.
Owen Matthew Kendler, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, G.
David Hackney, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Appellant Derrick Anthony Timmons (“Timmons”) was charged
together with Preston Cornelius Everett (“Everett”) in a two-count
superseding indictment for conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846, and for possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). Just prior to the beginning of Timmons’s and Everett’s
joint trial, Timmons’s counsel was dismissed because of a conflict
of interest. The trials were severed to allow Timmons an
opportunity to obtain court-appointed trial counsel. A jury
convicted Timmons of both counts, and the district court sentenced
him to 300 months’ imprisonment, 10 years’ supervised release, and
a $200 special assessment. Timmons now appeals his convictions and
his sentence. For the reasons discussed below, we affirm.
I.
According to the evidence adduced at trial,1 the charged
conspiracy began in 2003 when Timmons and Everett began purchasing
cocaine from Adrian Adkins (“Adkins”). Adkins testified that he
had supervised eight drug deliveries from “Chico,” a supplier in
1
The facts are presented in the light most favorable to the
government. See United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997) (recounting the standard governing appellate review of
a challenge to the sufficiency of the evidence to support a
conviction).
2
Texas, to Timmons and Everett in Virginia. Early in the
conspiracy, the three would hide the cocaine in Everett’s house
while Timmons and Everett arranged for its resale. Following an
altercation between Everett and his girlfriend involving the use of
firearms, Chico directed the three to begin storing the cocaine in
Timmons’s house. Adkins also testified that he witnessed Timmons
cutting the cocaine into smaller units for resale. Finally, Adkins
and another supervisor known as “Primo” would allow Timmons and
Everett to distribute the cocaine piecemeal on credit, paying for
each portion before receiving the next to sell.
The Drug Enforcement Administration (the “DEA”) infiltrated
Chico’s drug ring when a Confidential Informant (the “CI”) was
hired to transport cocaine from Chico to Adkins. In mid-October,
2004, a man calling himself “Mario” called the CI and asked him to
drive an automobile containing a shipment of cocaine from Dallas,
Texas to Virginia. The CI met Primo in a parking lot in Dallas,
where he received cash, a telephone, and an automobile. The
numbers of Mario, Primo, and Chico were stored in the telephone’s
contacts list. Before driving the vehicle to Virginia, the CI met
with DEA officials, who searched the vehicle and found eleven
kilograms of cocaine hidden inside. During the CI’s drive to
Virginia, Mario called and directed him to rent a hotel room at a
particular Best Western location in Virginia. Around that time,
Chico directed Adkins to meet the CI at the Best Western to pick up
3
the vehicle. Chico asked Adkins to deliver the cocaine to Timmons
and Everett, to collect payment they owed on a past cocaine
shipment,2 and to send the car back with the money via the CI.
Adkins was arrested by DEA agents at the Best Western after he
completed the transaction with the CI. After meeting with the
agents, Adkins agreed to cooperate. At the agents’ behest, Adkins
called both Everett and Timmons, arranging to meet the former at
the Best Western and the latter at an Econo Lodge. During the
call, Adkins and Timmons discussed Timmons’s drug debt to Chico,
with Timmons promising, “We can count it up and everything,” J.A.
182. Timmons also inquired about the arrival of the new shipment
of cocaine, “Um, everything good?”, J.A. 181. These calls were
recorded by the agents. Adkins offered to the agents physical
descriptions of Everett and Timmons and descriptions of the make,
model, and color of the automobile each would be driving. Adkins
explained that Everett and Timmons would be carrying large sums of
cash and that Everett would be armed as usual, especially because
he had recently been shot in the leg.
Timmons arrived in the described vehicle at the Econo Lodge
that evening, and was arrested by county drug task force members
upon exiting the car. The officers found approximately $1,000 on
Timmons’s person. Shortly thereafter, a county detective drove
2
Timmons owed either $5,000 or $15,000 for the past shipment,
but Adkins could not recall which number Chico specified during the
telephone conversation.
4
Timmons’s vehicle to the Best Western, a seve– to ten-minute drive.
The county detective transferred control of the vehicle to a DEA
agent, who then searched it. The DEA officer found about $20,000
in cash wrapped in rubber bands. He also found a digital scale in
the center console with a white powdery substance on it.
A few hours later, Everett arrived at the Best Western in a
vehicle with two other persons. Everett was in the back seat, and
a .45-caliber pistol was in the seat pocket in front of him.
Everett was arrested and his cell phone, $600 in cash, and an ounce
of cocaine were confiscated from his person. The phone had stored
Adkins's and Timmons's numbers in the recent-calls list. A search
of the vehicle revealed the firearm and $14,000 in cash.
Timmons and his girlfriend Tamara Yvette Simmons (“Simmons”)
testified at trial as to an alternative explanation for the
physical evidence and the events surrounding his arrest. Timmons
claimed that he was starting a courier business with Simmons, and
that he was carrying such large amounts of cash upon arrest because
he and Simmons were planning on buying two vehicles for the new
business from a car lot across the street from the Econo Lodge. He
also admitted to being in business with Adkins, but insisted the
business was one to sell National Football League (“NFL”)
“throwback” jerseys.3 Timmons explained that, during his telephone
3
These are replicas of certain jerseys worn by NFL players
that display outdated designs and color schemes.
5
conversations with Adkins that day, Timmons did not arrange for a
meeting with Adkins but simply informed him as to his whereabouts
for the evening. Timmons also explained that he was referring to
throwback jerseys when he said, “We can count it up and
everything.” Timmons testified that $15,000 of his cash came from
an uncle in New York who had just received a severance check of
about $19,000. Timmons claimed that he used the digital scale to
aid in his personal consumption of cocaine. Finally, Timmons
testified that he did not know that Everett would be carrying a gun
on the night of his arrest.
To rebut Timmons’s account, the government introduced the
testimony of Wendell Tyrone Ford (“Ford”), a member of a previous
and uncharged drug-trafficking conspiracy with Timmons and Everett.
Ford testified that he sold powder and crack cocaine to Timmons and
Everett for resale over a period of several months in 2000 and
2001. Ford testified that Timmons was a “frequent and reliable
customer,” J.A. 581, who would resell the drugs in Timmons’s
apartment complex. Ford also testified that he noticed Everett in
possession of a .45-caliber firearm during one drug transaction.
While the trial was proceeding, one juror wrote a letter to
the district court judge asking her to forward to Timmons a letter
dealing “strictly [with] personal matters outside of this case”
along with a Bible. J.A. 780. The letter to Timmons contained
quotations from the Bible and a summary of the central tenets of
6
Christianity, including the sinfulness of all persons, J.A. 782
(“All of us are guilty before God”), the attendant unworthiness of
man, id. (“The sin needs to be punished”), and the atoning
interposition of Jesus, id. (“[God] bridged the gap that our sin
created by sending . . . Jesus”). The letter indicated that its
“sole purpose” was “to tell [Timmons] that God loves [him],” and
that its author wrote it “with an open mind of the outcome” of the
case. J.A. 781.
After the close of evidence but before the jury’s
deliberations, Timmons moved to reopen his case to introduce a
faxed copy of his uncle’s cancelled severance check for $19,000
that was the alleged source of $15,000 of the cash in Timmons’s
possession upon his arrest. The district court declined to reopen
the case because there was insufficient justification for the delay
in procuring the evidence.
The jury returned a guilty verdict on both counts.
Immediately after the verdict was read, the district court
conducted a voir dire of the juror who had written the letter to
determine whether her religious views improperly biased her or any
other juror. The juror stated that she had asked her fellow church
members to pray for Timmons, though not by name, and that her
religious beliefs did not influence her decisions in the case. She
insisted that the “sin [that] needs to be punished” mentioned in
her letter was original sin, not a characterization of Timmons’s
7
particular actions revealed during the trial. She also stated that
she showed the letter to another juror on the last day of trial.
The district court then conducted a separate voir dire of the juror
who had read the letter, who told the court that neither the letter
nor the conversation influenced her decisions. The district court
finally conducted a voir dire with the entire jury, questioning the
Foreperson and the jury en masse as to whether any juror’s
religious views were discussed during deliberations and whether any
other juror was made aware of the letter. Because the Foreperson
answered in the negative, and because the district court found no
bias or prejudice, the court entered the verdicts and denied
Timmons’s later motion for a new trial based on juror misconduct.
Finally, prior to sentencing, the government filed an
information pursuant to 21 U.S.C. § 851(a) indicating that Timmons
previously had been convicted of a narcotics offense. Timmons
filed a written response to the information, contending that it
would be constitutional error to enhance his mandatory minimum
sentence based on the prior conviction because there was
insufficient proof that Timmons had counsel during the prior
proceedings.4 The district court rejected Timmons’s argument and
imposed the mandatory minimum sentence of 300 months’ imprisonment
for the two counts.
4
This argument was abandoned on appeal.
8
Timmons timely appealed, raising several arguments. We
discuss each in turn.
II.
Timmons first argues that there was insufficient evidence to
support his conviction on either count. A jury verdict must be
sustained against such a challenge if “there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Beidler, 110 F.3d at 1067 (internal quotations
omitted). We first discuss the evidence supporting the conspiracy
count, then that supporting the firearm possession count.
A.
To prove conspiracy to possess cocaine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, the
government “must establish that: (1) an agreement to possess
cocaine with intent to distribute existed between two or more
persons; (2) the defendant knew of the conspiracy; and (3) the
defendant knowingly and voluntarily became a part of this
conspiracy.” United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996).
Timmons contends that the evidence showed only that he and
Adkins shared a buyer-seller relationship, not “an agreement to
possess cocaine with intent to distribute,” id. Viewing the
evidence in the light most favorable to the government, we find
9
substantial evidence to support a finding that Timmons’s
involvement went beyond that of a buyer. Adkins specifically
testified as to his and Timmons’s involvement with Chico, including
Chico’s orchestrating the details of the distribution of the
cocaine in Virginia and choosing the house in which the drugs
should be stored pending resale. Adkins’s testimony that Timmons
was slated to purchase and resell several kilograms of cocaine, as
he had done several times before, is also inconsistent with
personal use. See United States v. Brown, 332 F.3d 363, 373 (6th
Cir. 2003) (“[E]vidence of repeat purchases provides evidence of
more than a mere buyer-seller relationship.”); United States v.
Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986) (“A large volume of
narcotics creates an inference of a conspiracy.”).
Timmons also argues that even if an agreement to distribute
cocaine existed, no legal conspiracy arose because Adkins was
acting as a government agent on the night of Timmons’s arrest.
This argument misunderstands the nature of the charged conspiracy.
The conspiracy was not, as Timmons suggests, a one-time agreement
to distribute the eleven kilograms of cocaine in the instant
shipment. It was, rather, a long-term association among Adkins,
Chico, Everett and Timmons to distribute cocaine, in furtherance of
which this shipment was the eighth such delivery. The conspiracy,
then, clearly predated Adkins’s capture by law enforcement.
Furthermore, even if Adkins was a government agent during the
10
conspiracy, Chico and Everett were not. Thus, the agreement
“existed between two or more persons,” Burgos, 94 F.3d at 857, and
is an adequate predicate for a conspiracy charge.5
B.
Timmons also challenges the sufficiency of the evidence to
support his firearm conviction under 18 U.S.C. § 924(c). Indeed,
no evidence was presented to show that Timmons personally possessed
a firearm in furtherance of the conspiracy. The government
nevertheless argues that Timmons bears responsibility for Everett’s
possession of a firearm on the night of the arrests under the rule
articulated in Pinkerton v. United States, 328 U.S. 640, 645
(1946).
A conspirator “may be convicted of substantive offenses
committed by co-conspirators in the course of and in furtherance of
the conspiracy.” United States v. Chorman, 910 F.2d 102, 111 (4th
Cir. 1990) (describing so-called Pinkerton liability). In
particular, “[a] defendant may be convicted of a § 924(c) charge on
the basis of a coconspirator’s use of a gun if the use was in
furtherance of the conspiracy and was reasonably foreseeable to the
defendant.” United States v. Wilson, 135 F.3d 291, 305 (4th Cir.
5
Timmons also attacks on appeal the credibility of Adkins and
Ford. However, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” United States v. Murphy, 35 F.3d 143, 148
(4th Cir. 1994). We find no reason to disturb the jury’s
credibility determinations here.
11
1998). Timmons contends that Pinkerton liability may not attach
here because Everett’s use of the firearm was not in furtherance of
the conspiracy and was not foreseeable to Timmons.
Timmons argues that Everett carried his firearm on the night
of the arrests for personal protection, not to further the
conspiracy. To support his contention, Timmons points to the fact
that Everett had been shot shortly before the arrests. There was
evidence before the jury, however, that Everett was carrying over
$14,000 in cash and intended to leave the Best Western with large
quantities of cocaine for resale. The jury reasonably could have
inferred that Everett carried the firearm to protect the cash and
cocaine. “[I]f the evidence supports different, reasonable
interpretations, the jury decides which interpretation to believe.”
Murphy, 35 F.3d at 148. We decline to intrude upon the province of
the jury and conclude that the jury reasonably found that Everett
carried the firearm in furtherance of the conspiracy.
Timmons also argues that he could not reasonably have foreseen
that Everett would carry a firearm in furtherance of the
conspiracy. Adkins and Ford, however, both testified that they
knew that Everett had carried a firearm during past drug
transactions. Adkins and Timmons also testified that they knew
that Everett had recently been shot. Finally, Adkins and a DEA
agent both testified to the prevalence of firearm-use in the drug
trade. We find this aggregated evidence to be more than sufficient
12
to support the jury’s finding that Timmons could reasonably have
foreseen that Everett would use a firearm in furtherance of the
conspiracy.
In sum, because “[r]eversal for insufficient evidence is
reserved for the rare case where the prosecution’s failure is
clear,” Beidler, 110 F.3d at 1067 (internal quotations omitted),
and the government presented “substantial evidence . . . to
support” the jury verdict here, id., we reject Timmons’s challenge
to the sufficiency of the evidence to support his convictions.
III.
Timmons next argues that the search of his automobile after
his arrest violated his Fourth Amendment right to be free from
unreasonable searches and seizures, and that the district court
therefore erred in denying his motion to suppress the evidence
obtained from the search. “In considering a ruling on a motion to
suppress, we review conclusions of law de novo and underlying
factual findings for clear error.” United States v. Buckner, 473
F.3d 551, 553 (4th Cir. 2007) (emphasis omitted).
“The Fourth Amendment generally requires police to secure a
warrant before conducting a search.” Maryland v. Dyson, 527 U.S.
465, 466 (1999). Any evidence obtained in violation of the Fourth
Amendment may be suppressed under the exclusionary rule. United
States v. Perez, 393 F.3d 457, 460 (4th Cir. 2004). A warrantless
13
search is nevertheless valid, and the evidence obtained from the
search admissible, if the search “‘falls within one of the narrow
and well-delineated exceptions’ to the Fourth Amendment’s warrant
requirement.” United States v. Currence, 446 F.3d 554, 556 (4th
Cir. 2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13
(1999)).
One such exception is that allowing a warrantless automobile
search incident to arrest. See New York v. Belton, 453 U.S. 454,
460 (1981). Timmons argues at length that the circumstances of the
instant search do not fit the confines of the Belton exception. We
need not consider the applicability of Belton to these facts,
however, because we find that a separate exception--allowing a
warrantless search of an automobile with probable cause--remedies
the absence of a warrant.
Under the so-called “automobile exception” to the warrant
requirement, a finding of probable cause that a vehicle contains
contraband alone allows a warrantless search of the vehicle.
Dyson, 527 U.S. at 467. This court recently applied this exception
to facts not meaningfully distinguishable from those surrounding
Timmons’s arrest. See United States v. Dickey-Bey, 393 F.3d 449,
456-57 (4th Cir. 2004).
In Dickey-Bey, the defendant was arrested as he picked up a
package containing cocaine from a local Mailboxes, Etc. store. Id.
at 450. The arresting officer confirmed that the defendant’s
14
physical description matched that of the person who regularly
picked up packages from the mailbox in question. Id. at 452.
Because the package was known to contain drugs, the defendant had
acted suspiciously in the parking lot before picking up the
package, and the defendant had been seen picking up similar
packages in the past, the court held that the arresting officers
had probable cause to believe that the automobile “was an
instrumentality of the crime.” Id. at 456-57. As such, the
warrantless search was held to be permissible under the automobile
exception. Id. at 457. The court noted that it “need not . . .
decide whether the search of [the] automobile was properly incident
to his arrest” because it instead found that the automobile
exception applied. Id. at 456.
As in Dickey-Bey, the searching officer here had probable
cause to believe that Timmons’s automobile “was an instrumentality
of the crime” of conspiracy to possess cocaine with intent to
distribute. See id. at 457. Adkins had offered a physical
description of Timmons and of the automobile he would be driving on
the night of his arrest. He had also indicated that Timmons would
be carrying a large sum of cash to repay his debt to Chico for a
prior shipment. Finally, Adkins explained that Timmons planned to
leave the hotel with a quantity of cocaine for resale. This
information, known to the arresting and searching officers,
constituted probable cause to believe that Timmons’s automobile was
15
“an instrumentality of the crime” of conspiracy. Therefore, we
find that the warrantless search of Timmons’s automobile was valid
under the automobile exception to the warrant requirement.
IV.
Next, Timmons contends that the district court abused its
discretion in two respects: first, in allowing the jury verdict to
stand even though a juror expressed strongly held religious beliefs
about sin and punishment, and second, in declining to allow him to
reopen his case to introduce further evidence. We discuss each
argument in turn.
A.
Timmons argues that the district court erred by not granting
his motion for a mistrial based on the conduct of the authoring
juror. We review for abuse of discretion the denial of a motion
for a mistrial based on allegations of juror misconduct. United
States v. O’Neal, 180 F.3d 115, 118 (4th Cir. 1999).
Timmons’s counsel conceded at oral argument that the district
court did not err in its response to receiving the letter from the
juror--that is, in separately conducting a voir dire of her, the
juror to whom the letter was shown, and then the entire jury.
Instead, Timmons insists that the proffered letter revealed on its
face that the authoring juror was impermissibly biased against
16
Timmons and that no amount of process could be sufficient to rebut
the clear implication of the letter’s text.
Timmons does not cite any authority for his suggested rule
that would find per se bias in the juror’s conduct. On the
contrary, the letter itself contains statements that tend to
disprove any bias. See, e.g., J.A. 781 (indicating that the “sole
purpose” of the letter was “to tell [Timmons] that God loves
[him],” and that its author wrote it “with an open mind of the
outcome” of the case); id. (stating that “God loves you.
Regardless if you are found innocent or guilty in this courtroom”).
Even if the letter could be read to reflect a possible bias against
Timmons, the existence or nonexistence of bias was appropriately
probed by the procedures employed by the district court--procedures
Timmons himself conceded were proper. We therefore cannot say that
the district court abused its discretion in denying Timmons’s
motion for a mistrial based on juror misconduct.
B.
Timmons also contends that the district court erred by
declining to allow Timmons to reopen his case to introduce into
evidence a faxed copy of his uncle’s cancelled severance check. We
review for abuse of discretion a district court’s refusal to reopen
a case to allow new evidence. United States v. Abbas, 74 F.3d 506,
510-11 (4th Cir. 1996). In conducting such a review,
we examine (1) whether the party moving to reopen
provided a reasonable explanation for failing to present
17
the evidence in its case-in-chief; (2) whether the
evidence was relevant, admissible, or helpful to the
jury; and (3) whether reopening the case would have
infused the evidence with distorted importance,
prejudiced the opposing party's case, or precluded the
opposing party from meeting the evidence.
Id. at 511. The party that sought to introduce new evidence must
establish all three factors to prevail on appeal. Id.
Focusing on the first factor, Timmons’s counsel explained to
the district court that he had been appointed only a month before
the trial after Timmons’s first attorney was removed because of the
discovery of a conflict of interest. Due to the late change in
representation, Timmons argued, he did not have sufficient time to
recover a copy of the cancelled check. The district court rejected
this explanation, finding that there should have been “no
surprises” about the primary issues in the trial, especially
considering that the check’s pertinence “came from [Timmons’s] side
of the podium, not the government’s.” See J.A. 634, 36. Indeed,
the copy of the check was relevant, if at all, in connection with
Timmons’s primary defense--that he borrowed the large sums of cash
(as opposed to receiving them from drug deals) and was planning on
purchasing automobiles (as opposed to more drugs for resale). See
J.A. 634. The court concluded that “there’s really no reason why
there would not have been documentation that could have been timely
provided.” J.A. 635.6
6
We also question whether Timmons could satisfy the second
Abbas factor, considering the number of inferential steps required
18
As the district court aptly noted, “This case could go on
forever. The same way overnight, the government could come in with
[further supporting evidence]. . . . [T]here’s a point of finality
here.” J.A. 634. Because Timmons did not proffer a satisfactory
explanation for the delay in producing the evidence, we find that
the district court did not abuse its discretion in declining to
allow Timmons to reopen his case.
V.
Finally, Timmons argues that by failing to afford him a so-
called § 851(b) colloquy, the district court erred and his sentence
must be vacated. Timmons failed to raise this issue before the
district court, and we therefore review for plain error. United
States v. Ellis, 326 F.3d 593, 598 (4th Cir. 2003).
Whenever the government seeks to enhance a defendant’s
sentence by virtue of a prior conviction, it is required to “file[]
an information with the court . . . stating in writing the previous
convictions to be relied upon.” 21 U.S.C. § 851(a)(1). Section
§ 851(b) operates in tandem with § 851(a), providing that once a
§ 851(a) information has been filed,
the court shall after conviction but before pronouncement
of sentence inquire of the person with respect to whom
the information was filed whether he affirms or denies
to connect a copy of the uncle’s cancelled check from New York to
wads of twenty-dollar bills in the back of Timmons’s vehicle in
Virginia.
19
that he has been previously convicted as alleged in the
information, and shall inform him that any challenge to
a prior conviction which is not made before sentence is
imposed may not thereafter be raised to attack the
sentence.
§ 851(b). In addition, if the defendant “denies any allegation of
the information . . . , or claims that any conviction alleged is
invalid, he shall file a written response to the information.”
§ 851(c)(1).
Here, the government filed a § 851(a) information forecasting
that it would seek an enhanced sentence based on Timmons’s prior
felony conviction for possession of cocaine with intent to
distribute. The government concedes, however, that the district
court neither “inquire[d] of [Timmons] whether he affirm[ed] or
denie[d]” the prior conviction nor “inform[ed] him that any
challenge to [the] prior conviction which [wa]s not made before
sentence [wa]s imposed may not thereafter be raised to attack the
sentence.” See § 851(b). Nevertheless, the government argues that
“the substantive protections underlying that subsection were
provided to [Timmons] in this case,” United States v. Campbell, 980
F.2d 245, 252 (4th Cir. 1992).
In Campbell, as here, the government filed a § 851(a)
information, but the district court never conducted a § 851(b)
“colloquy in which [it] specifically addressed each of the issues”
listed. 980 F.2d at 252. The court identified the purpose of
§ 851(b) as “provid[ing] the defendant with a full and fair
20
opportunity to establish that he is not the previously convicted
individual or that the conviction is an inappropriate basis for
enhancement under section 841.” Id. Because the defendant filed
a § 851(c) motion “argu[ing] that the conviction did not qualify
for sentencing enhancement purposes,” he must have “appreciated his
right to challenge the state conviction.” Id. The district
court’s subsequent “lengthy hearing on th[e] issue” raised by the
defendant, the Campbell court held, effectively afforded him the
procedural protections of § 851(b). Id.
Similarly, here, Timmons filed a § 851(c) motion in which he
“argued that the conviction did not qualify for sentencing
enhancement purposes,” id., because there was insufficient evidence
that he was represented by counsel at the time of the conviction.
As in Campbell, the district court here held a “lengthy hearing on
this issue,” id., ultimately ruling against Timmons’s challenge.
Because Timmons’s argument is thus similar in all relevant respects
to that rejected in Campbell, we likewise find that Timmons
“appreciated his right to challenge the state conviction” and
“conclude that the substantive protections underlying that
subsection were provided to [Timmons] in this case,” Id.7
7
In his pro se brief, Timmons also contends that he was denied
effective assistance of counsel in violation of the Sixth
Amendment. He argues that his trial counsel was constitutionally
deficient in failing to insist that the questions of the amount and
type of drugs possessed be submitted to the jury. See United
States v. Milam, 443 F.3d 382, 387 (4th Cir. 2006). Both questions
were in fact, however, submitted to the jury and answered on the
21
VI.
For the foregoing reasons, Timmons’s convictions and sentence
are
AFFIRMED.
verdict form. Timmons also argues that his sentence should not
have been enhanced for obstruction of justice when such a charge
was neither included in his indictment nor submitted to the jury.
Such judicial fact-finding cannot be error, however, because the
district court imposed the statutory minimum sentence for each
conviction. See United States v. Burgess, 478 F.3d 658, 661 n.2
(4th Cir. 2007).
22