United States v. King

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4683

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM KING,

Defendant - Appellant.

No. 06-4724

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO MURRAY,

Defendant - Appellant.

Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:05-cr-00203-JFM)

Submitted: February 28, 2008 Decided: March 19, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

G Arthur Robbins, CHESAPEAKE MERIDIAN, Annapolis, Maryland; Donald
E. Kaplan, LAW OFFICE OF DONALD KAPLAN, Baltimore, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Charles J.
Peters, A. David Copperthite, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

William King (Appeal No. 06-4683) and Antonio Murray

(Appeal No. 06-4724) appeal their convictions by a jury and

sentences on charges of conspiracy to distribute narcotics,

conspiracy to interfere with commerce by robbery and extortion, in

violation of 18 U.S.C. § 1951 (2000) (Count 1); conspiracy to

distribute cocaine base, cocaine, heroin, and marijuana, in

violation of 21 U.S.C. § 1951 (2000) (Count 2); and conspiracy to

possess firearms in furtherance of a drug trafficking conspiracy,

in violation of 18 U.S.C. § 924(o) (2000) (Count 3). In addition

to Counts 1, 2, and 3, as set forth above, King was charged in a

Superseding Indictment with nine counts of possession with intent

to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1)

(2000) (Counts 4, 5, 7, 8, 14, 18, 22, 26, and 30); seven

additional counts of interference with commerce by robbery and

extortion, in violation of 18 U.S.C. § 1951 (2000) (Counts 10, 12,

16, 20, 24, 28, and 32); and fourteen additional counts of

possession of a firearm in furtherance of a crime of violence or a

drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2000)

(Counts 6, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33). In

addition to Counts 1-3 above, Murray was named as a defendant in

Counts 7, 10-15, and 20-27. The jury found King guilty of all drug

and Hobbs Act counts and thirteen counts of possession of a firearm

in furtherance of a crime of violence or drug trafficking crime.

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Murray was found guilty of all drug and Hobbs Act counts and six

counts of possession of a firearm in furtherance of a crime of

violence or drug trafficking crime.

The district court sentenced King on June 16, 2006, to

concurrent 121-month terms of imprisonment on the drug and Hobbs

Act counts (Counts 1-5, 7, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26,

28, 30, and 32); to a 60-month term of imprisonment on one of the

firearm counts (Count 6), to run consecutively to the 121-month

sentence; and to twenty-five years’ confinement on the remaining

twelve counts (Counts 9, 11, 13, 17, 19, 21, 23, 25, 27, 29, 31,

and 33), to run consecutively to the other sentences and to each

other, for a total sentence of 3660 months’ (305 years)

imprisonment. King was further sentenced to a total term of

supervised release of four years, and ordered to pay a statutory

assessment of $3200. An amended judgment was filed on June 26,

2006.

The district court sentenced Murray to concurrent 108-

month terms of imprisonment on the drug and Hobbs Act counts

(Counts 1-3, 7, 10, 12, 14, 20, 22, 24, and 26); to a 60-month term

of imprisonment on one of the firearm counts (Count 11), to run

consecutively to the 108-month sentence; and to twenty-five years’

confinement on the remaining five counts (Counts 13, 21, 23, 25,

and 27), to run consecutively to the other sentences and to each

other, for a total sentence of 1668 months’ (139 years)

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imprisonment. Murray was further sentenced to a total term of

supervised release of five years, and ordered to pay a statutory

assessment of $1700.

On appeal, King and Murray challenge the charges in the

Superseding Indictment, asserting that they constitute undue

multipliciousness of charges; claiming the evidence was

insufficient to support the jury’s conclusion that their service

weapons were carried in furtherance of the offenses alleged;

contending that the jury instructions failed accurately to identify

the elements of the offenses as alleged; and asserting that the

district judge erred in determining that he had no discretion to

ameliorate the alleged irrational sentence structure created by the

Government’s charging choices in this case. We affirm.

At trial, the following evidence was introduced. From

2004 until their arrest on May 16, 2005, King and Murray were

employed as detectives by the Baltimore City Police Department and

worked primarily in the Public Housing Drug Enforcement Unit,

concentrating on drug enforcement in public housing and surrounding

areas in Baltimore City. While working as police detectives, King

and Murray conspired with Antonio Mosby (“Mosby”), and others not

named in the indictment, to rob drug traffickers on the streets of

Baltimore City. Mosby and others would identify persons on the

street who were in possession of narcotics and proceeds from the

sale of narcotics. Mosby would then contact King and Murray, who

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would detain these persons under guise of police activity. During

the course of the detention, and while armed with their service

weapons, King and Murray threatened arrest and prosecution, took

control of controlled substances, including cocaine base, heroin,

and marijuana, and the proceeds from the sale of such controlled

substances, from these persons. After the robberies, King and

Murray distributed the seized narcotics to Mosby and others to sell

on the street. The evidence demonstrated that King and Murray

would split the profits from the sale of narcotics, as well as any

proceeds recovered from the person they had detained. At trial,

King and Murray maintained that their activities were all in

furtherance of legitimate police activity in an effort to develop

sources to lead to arrests of drug distributors above the street

level individuals with whom they were interacting and that the

proceeds of the activities were paid out to informants, principally

Mosby.

Mickey Harvey testified at trial that he was arrested by

King in 2003 after King pulled out his gun, put it to Harvey’s

head, and detained Harvey in King’s police vehicle. Harvey

testified that he was released without charges and thereafter began

to work with both King and Murray. Harvey would spot drug dealers

and notify King and Murray of the dealers’ locations. King and

Murray would then detain these individuals, rob them of their drugs

and drug proceeds, give the stolen drugs to Harvey to sell, and

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split the stolen proceeds among them as King and Murray deemed

appropriate.

Davon Mayer testified that King arrested him in 2003 and

released him without charges. Mayer agreed to work for King by

locating drug stashes on the street which King could steal. King

would then either sell the drugs to Mayer, or Mayer would take the

drugs and sell them, splitting the proceeds with King. Mayer

ultimately went to the Federal Bureau of Investigation (“FBI”) with

information about King, and agreed to cooperate with the FBI.

Mosby attested that he also was arrested in 2003 by King

and Murray. He testified that both King and Murray were armed when

they placed him into their police car. Mosby was released without

charges and began working with King and Murray by identifying drug

dealers for King and Murray to rob and locating drug stashes for

them to steal. Mosby would call King and Murray with a description

of the dealers, and they would drive up in their police vehicle,

physically detain the dealers on the street or in the car, search

them, and take their money and drugs. After the robberies, King

and Murray would meet with Mosby and usually sell the stolen drugs

to Mosby for one-half the street value of the drugs. Mosby would,

in turn, sell the drugs, making a 100 percent profit.

During trial, and during their own testimony, neither

King nor Murray disputed that they were armed with loaded service

revolvers during these street encounters. The Government

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introduced evidence that, on April 7, 2005, King and Murray picked

up Mosby in anticipation of robbing drug dealers. When King

realized that he did not have his service revolver, he and Murray

drove back to the police station to pick up the weapon. After

retrieving the weapon, they met with Mosby and resumed their

activities.

Appellants’ first and fourth challenges relate to the

multiple § 924(c) offenses as set forth in the Superseding

Indictment, and the resultant 25-year mandatory minimum consecutive

sentences imposed by the district court on the related convictions

of those charges. They first claim that the § 924(c) charges for

each incident based on the firearms that they were required to

possess as a function of their status as police officers violated

their Due Process rights and the Fifth Amendment’s prohibition

against Double Jeopardy. Appellants contend that, while they made

no pretrial objection to the multiple counts, they were prejudiced

by the district court’s treatment of each § 924(c) count as a

“subsequent conviction” for purposes of sentencing, which resulted

in multiple, consecutive sentences. They argue that the manner in

which they were sentenced illustrates an infirmity in the analyses

of Deal v. United States, 508 U.S. 129 (1993), and United States v.

Camps, 32 F.3d 102 (4th Cir. 1994), and that such analyses should

be “revisited” in the context of an ongoing conspiracy. Secondly,

Appellants assert that the multiple § 924(c) counts on which they

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were convicted and sentenced violate the Eighth Amendment’s

prohibition against cruel and unusual punishment, and that the

district court erred in finding that it had no discretion but to

impose consecutive 25-year sentences for each § 924(c) conviction.

This court reviews de novo a claim of multiplicity.1

United States v. Mancuso, 42 F.3d 836, 847 n.11 (4th Cir. 1994).

Appellants admit that their failure to raise this issue prior to

trial renders the objection waived, absent demonstration of cause

for the failure to object and actual prejudice resulting from the

defect. See Fed. R. Crim. P. 12(f); United States v. Colton, 231

F.3d 890, 909 (4th Cir. 2000).

We find Appellants’ challenges to the imposition of

consecutive 25-year sentences on each § 924(c) conviction,2 to the

extent their challenges were not waived by their failure to object,

are unavailing, as such sentences were mandated by law, were not

unconstitutional, and were properly imposed. See Deal, 508 U.S. at

1
Appellants do not actually advance a true “multiplicity”
claim, i.e., that the indictment charged a single offense in
several counts, and, indeed, review of the indictments in this case
reveals that each count charged a different offense. See United
States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000). Rather, the
foundation for Appellants’ challenges is that the imposition of
consecutive sentences for multiple § 924(c) convictions was illegal
or improper.
2
To the extent Appellants seek to raise proportionality review
under the Eighth Amendment, such review is not available for any
sentence less than life imprisonment without the possibility of
parole. United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th
Cir. 2001).

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137; Camps, 32 F.3d at 107. See also United States v. Robinson,

404 F.3d 850, 862 (4th Cir. 2005) (vacating concurrent sentences

imposed by district court on eight separate § 924(c) violations,

holding that the sentences for each § 924(c) conviction must be

consecutive to the others, resulting in a minimum sentence for

Robinson of 2184 months’ imprisonment, and noting that a district

court has no discretion to impose a sentence outside the statutory

range established by Congress for the offense of conviction);3

United States v. Khan, 461 F.3d 477, 495 (4th Cir. 2006)

(consecutive sentences mandated by § 924(c), even where unusually

lengthy and exceeding a defendant’s reasonable life expectancy, do

not offend the Eighth Amendment).4

There is no question in this case that Appellants

committed different robberies on separate occasions, distributed or

possessed with the intent to distribute drugs on separate

3
See Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (“Severe,
mandatory penalties may be cruel, but they are not unusual in the
constitutional sense . . ..”).
4
To the extent Appellants’ cursory reference, without specific
argument, of a challenge to the Due Process and Double Jeopardy
Clauses of the Constitution is sufficient to warrant review by this
court on appeal of those challenges, they likewise are without
merit. Section 924(c) violates the Due Process Clause only if
Appellants can demonstrate that the statute “lacks a rational
basis,” which it does not. See Khan, 461 F.3d at 495. Moreover,
as long as the underlying crimes on which the consecutive § 924(c)
sentences are based are not duplicative, i.e., they do not relate
to identical criminal acts, they do not violate the Double Jeopardy
Clause. Id. at 494. Given that each § 924(c) count on which
Appellants here were sentenced related to a different criminal act,
any Double Jeopardy challenge would fail.

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occasions, and possessed firearms in furtherance of a crime of

violence or a drug trafficking crime on each of those occasions.

As such, the imposition of consecutive sentences for each § 924(c)

count is mandated by Congress, consistent with the plain language

of § 924(c), and does not offend constitutional rights and

principles set forth in the Fifth or Eighth Amendments.

Appellants next claim that the evidence was insufficient

to support their § 924(c) convictions. Specifically, they

challenge the jury’s determination that they possessed a firearm

“in furtherance” of the 21 U.S.C. § 841(a) and 18 U.S.C. § 1951

crimes alleged. They do not challenge their convictions for the

predicate crimes of violence and drug trafficking crimes that

underlie each § 924(c) conviction, nor do they dispute that they

possessed firearms during the commission of the predicate offenses.

It is further undisputed that the predicate crimes occurred in

high-crime areas marked by drug-trafficking and violence.

Appellants also agree that their “guns were accessible, fully

loaded, always on their person, available for self-defense, and

near drugs.” During trial, Appellants testified that they always

were in possession of their firearms, and that they possessed them

for protection.

In evaluating the sufficiency of the evidence supporting

a criminal conviction on direct review, “[t]he verdict of the jury

must be sustained if there is substantial evidence, taking the view

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most favorable to the Government, to support it.” Glasser v.

United States, 315 U.S. 60, 80 (1942). Substantial evidence is

evidence “that 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. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc). This court considers circumstantial

and direct evidence, and allows the government the benefit of all

reasonable inferences from the facts proven to those sought to be

established. Id. at 858; 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 review witness credibility.

United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

Rather, it is the role of the jury to judge the credibility of

witnesses, resolve conflicts in testimony, and weigh the evidence.

United States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Thus,

a defendant challenging his conviction based upon the sufficiency

of the evidence “bears a heavy burden,” United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

omitted), as “a decision [to reverse for insufficient evidence]

will be confined to cases where the prosecution’s failure is

clear.” Burks v. United States, 437 U.S. 1, 17 (1978).

Section 924(c) requires evidence indicating that the

possession of a firearm “furthered, advanced, or helped forward”

the predicate crime. United States v. Lomax, 293 F.3d 701, 705

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(4th Cir. 2002). It is sufficient to establish that the purpose of

the firearm was to “protect or embolden” the defendant. United

States v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006). Even

without evidence of brandishing or firing of a weapon, the carrying

of a firearm during a drug trafficking crime supports the jury’s

finding that a defendant carried it for his personal protection,

thus satisfying the applicable standard. Id.

Appellants’ argument is that the testimonial evidence

introduced by the Government established merely that King and

Murray possessed their service firearms during the commission of

the predicate offenses, but that it did not demonstrate, beyond a

reasonable doubt, that they possessed the firearms in furtherance

of their crimes. They base the distinction on their allegation

that their possession of their firearms was legal because they were

police officers, rather than illegal. They further assert that

their possession of their firearms was “merely incidental” to their

status as police officers, and that there was no evidence that the

weapons played any role in the offenses proved.

We find that the distinction Appellants attempt to make

is both disingenuous and without a difference. While they may

legally have possessed their service weapons for protection,

intimidation, and to embolden them during the commission of

legitimate police activities, the possession of those same firearms

did not suddenly cease to be protection, intimidation, or

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emboldening devises during their commission of illegal activities.

Moreover, the Government introduced testimonial and tape-recorded

evidence that demonstrated clearly that, on April 7, 2005, King and

Murray interrupted their illegal activities to recover King’s

firearm before continuing with such activities. This evidence,

together with the plethora of evidence that Appellants possessed

their weapons in plain view of those from whom they stole drugs and

drug proceeds, fully supports the jury’s finding that Appellants

possessed their firearms in furtherance of their crimes. See

Burgos, 94 F.3d at 857, 858.

Appellants’ final issue on appeal is whether the jury

instructions constructively amended or created a variance in the

§§ 924(o), (c) counts of the indictment, causing prejudice to them.

Specifically, they claim there was constructive amendment of Count

3, which charged knowing, intentional, and unlawful possession of

firearms during a conspiracy in furtherance of a crime of violence,

in violation of 18 U.S.C. § 924(o), and Counts 6, 9, 11, 13, 15,

17, 19, 21, 23, 25, 27, 29, 31, 33, the counts which charged

knowing, intentional, and unlawful possession of a firearm in

furtherance of a crime of violence or a drug trafficking crime, in

violation of 18 U.S.C. § 924(c), because the jury instruction

failed to include the element of “unlawful” possession that was

charged in the indictment. As Appellants correctly note,

“unlawfully” is not an element in either § 924(c) or (o), yet the

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Government included the term in its Superseding Indictment. The

instruction given in this case relative to this issue allowed the

jury to convict Appellants on evidence of “‘possessing’ a firearm

in furtherance of a crime,” not “unlawfully” possessing a firearm,

as was charged in the indictment. In the alternative, Appellants

contend that the inclusion of the term “unlawfully” in the

indictment was a “variance,” which resulted in unfair surprise and

prejudice, requiring reversal of their convictions. They claim

that the elimination of the word “unlawfully” from the jury

instruction was error because the jury was instructed that it could

convict on a “different, easier to prove version of the offense

charged.”

Constructive amendments are error per se and “must be

corrected on appeal even when not preserved by objection.” United

States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994).5 A

constructive amendment occurs when the bases for conviction are

broadened beyond those charged in the indictment. United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999). A constructive

amendment is where “the indictment is altered ‘to change the

elements of the offense charged, such that the defendant is

actually convicted of a crime other than that charged in the

5
Appellants here failed to raise this issue in the district
court.

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indictment.’” Id., quoting United States v. Schnabel, 939 F.2d

197, 203 (4th Cir. 1991).

Here, the term “unlawfully” in the charging document was

not a separate element. Rather, it was a descriptive term

characterizing the actions of King and Murray as “unlawful” in

possessing firearms in furtherance of the (unlawful) crimes charged

in the indictment. Stated differently, the use of the term

“unlawfully” conveyed to King and Murray that the Government

believed their conduct to be against the law cited in the

indictment. We therefore find that the use of the term

“unlawfully” in the Superseding Indictment was mere surplusage, did

not add an element or in any way change the nature of the charges,

and did not prejudice King or Murray, who vigorously defended their

case and at no time raised the issue below. See, e.g., United

States v. Miller, 471 U.S. 130, 136-37 (1985). Given that the

inclusion of the term “unlawfully” in the indictment, and the

subsequent failure to instruct the jury about this term, did not

impermissibly broaden the charges such that Appellants were

convicted of a crime other than that charged, Randall, 171 F.3d at

203, their claim of error is without merit.6

6
Nor was there a variance because the characterization of the
charged conduct as unlawful had no impact on the “circumstances
alleged in the indictment.” See, e.g., Floresca, 38 F.3d at 709.

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 Accordingly, we affirm the convictions and sentences of

King and Murray. 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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