United States v. Savoy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4074

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CALVIN IGNATIOUS SAVOY,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05-
cr-00415-AMD-4)

Argued: January 30, 2009 Decided: March 6, 2009

Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.

Affirmed in part and vacated and dismissed in part by
unpublished per curiam opinion.

ARGUED: Ansley Claire Tillman, KING & SPALDING, L.L.P.,
Washington, D.C., for Appellant. Andrea L. Smith, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Bradley H. Cohen, Gary G. Grindler, KING & SPALDING,
L.L.P., Washington, D.C., for Appellant. Rod J. Rosenstein,
United States Attorney, Matthew Jeweler, Law Clerk, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Calvin Savoy was arrested, indicted, and convicted on

charges of conspiring to distribute 50 grams or more of cocaine

base, in violation of 21 U.S.C. § 846, and using a firearm

during and in relation to a drug-trafficking crime, in violation

of 18 U.S.C. § 924(c). Savoy was sentenced on the conspiracy

charge to a mandatory minimum life sentence under 21 U.S.C. §

841(b)(1)(A) and sentenced on the firearm charge to a mandatory

minimum, consecutive sentence of 10 years under 18 U.S.C. §

924(c)(1)(A)(iii). Savoy appeals, arguing the Government’s

evidence at trial was insufficient as a matter of law to prove

that he knowingly joined a conspiracy or that his firearm use

occurred during and in relation to a drug-trafficking crime.

Savoy also contends the district court erred in instructing the

jury, improperly admitted evidence of another crime, and

incorrectly imposed the statutory mandatory minimum life

sentence.

For the reasons set forth below, we affirm the conspiracy

conviction and sentence on that charge. However, because we

hold that the Government failed to prove that Savoy’s firearm

use occurred during and in relation to a drug-trafficking crime,

we vacate his conviction and sentence on that charge.

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 I.

In September 2005, Savoy was indicted with 6 co-defendants

on a charge of conspiring to distribute and possess with intent

to distribute 50 grams or more of cocaine base (i.e., crack

cocaine), in violation of 21 U.S.C. § 846 (“Count One”). In

addition, Savoy was indicted individually on a count of

possessing and discharging a firearm during and in relation to a

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

(“Count Four”). Savoy pled not guilty and was tried

individually.

To establish the existence of the conspiracy alleged in

Count One, three indicted co-conspirators testified at trial

that Pioneer City, a housing complex in Anne Arundel County,

Maryland, was an open-air drug market in which the members of

the conspiracy cooperated to sell crack cocaine and prevent non-

members from selling it. These witnesses testified that the

members of the conspiracy had a code of silence against speaking

to the police and drove out drug dealers from other areas who

attempted to enter the Pioneer City drug market. In addition,

when one co-conspirator ran out of crack cocaine, he would refer

customers to another co-conspirator or other co-conspirators

would share their supply with him.

To establish that Savoy was a member of the conspiracy, an

unindicted co-conspirator, Fabian Gray, testified that Savoy had

4
been present when Gray sold crack cocaine. Gray also gave Savoy

sufficient crack cocaine to restart his drug dealing business

after Savoy was released from prison in 2004. Evidence also

indicated that Savoy participated in the November 2004 beating

of Kevin Johnson in Pioneer City. Johnson was unable to

identify his assailants but Savoy’s fingerprints were recovered

from his Cadillac, which was stolen during the attack. The

Government argued that Johnson’s beating was an example of the

conspiracy’s efforts to exclude outsiders from Pioneer City.

To establish the firearm offense alleged in Count Four,

witnesses testified that members of the conspiracy were present

at a September 2004 birthday party held at a nightclub near

Pioneer City. Savoy was seen and photographed brandishing a

handgun during the party. Individuals from Annapolis, where a

rival drug gang operated, were also present at the party. A

fight broke out and spread outside, where Officer William Hicks

observed “pockets of people fighting” in the parking lot. While

attempting to break up the various fistfights, Hicks heard and

saw an unidentified black male firing shots into the air. While

pursuing that suspect, Hicks was shot in the right arm.

Witnesses identified Savoy as the shooter. Though there was no

evidence that drugs were distributed or even present during the

party, the Government argued that Savoy shot Hicks to impress

5
the conspiracy’s rivals from Annapolis and deter them, and

police, from interfering with the Pioneer City drug market.

At the conclusion of the evidence, Savoy entered a motion

for judgment of acquittal under Rule 29 challenging the

sufficiency of the evidence on both counts. The district court

denied the motion and the case was submitted to the jury. On

the final day of its deliberations, the jury sent a question to

the court: “Clarify how the drugs charges should relate to the

defendant’s association with the conspiracy? During the trial

there was a statement by the judge about this. This would be

the charges which occurred during the timeframe of 2002-2005.”

(J.A. 300.) The court, without consulting counsel, responded

with its own note: “Dear Jury: Your question is unclear.

Please attempt to clarify your question.” (J.A. 301.) The jury

did not reply but found Savoy guilty on both counts and entered

special verdicts that the amount of crack cocaine involved in

the conspiracy relating to Count One was 50 grams or more and

that the firearm relating to Count Four had been discharged.

The court informed counsel of the jury’s question when

counsel were recalled to receive the jury’s verdict. The court

summarized the event, offered to show the notes, and asked

counsel, “[A]nybody have any concerns or questions?” Neither

party objected. (J.A. 301-02.)

6
 The Probation Office subsequently prepared Savoy’s pre-

sentencing report, which included 5 prior state criminal

convictions. Savoy objected to the inclusion of two drug

convictions: one from 1994 (K950039), because he was under 18

at the time of the offense, and one from 1997 (K9700895),

because it was classified a misdemeanor under state law. Savoy

did not challenge the inclusion of a third drug conviction.

Finding that Savoy had at least two prior felony drug

convictions and relying on the jury’s special verdict that the

conspiracy involved 50 grams or more of cocaine base, the

district court imposed the mandatory minimum life sentence

required by 21 U.S.C. § 841(b)(1)(A) on Count One. Relying on

the jury’s special verdict that Savoy discharged a firearm

during and in relation to a drug-trafficking offense, the

district court also imposed the mandatory minimum, consecutive

sentence of 10 years required by 18 U.S.C. § 924(c)(1)(A)(iii)

on Count Four. Savoy filed a timely notice of appeal and we

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

II.

Savoy contends the Government’s evidence is insufficient to

prove that he knowingly and voluntarily joined any conspiracy to

distribute crack cocaine or to prove that he shot Officer Hicks

7
during and in relation to a drug-trafficking offense. Savoy

also argues that the district court should not have admitted

evidence of Kevin Johnson’s beating under Rule 404(b) of the

Federal Rules of Evidence and that it erred in failing to

clarify its jury instructions in response to the jury’s note on

the last day of deliberations. Finally, Savoy argues that the

district court improperly imposed the mandatory minimum life

sentence required by 21 U.S.C. § 841(b)(1)(A) because the 50

grams of crack cocaine found by the jury to be involved in the

conspiracy should not have been attributed to Savoy and because

the district court improperly considered his 1994 and 1997 state

drug convictions.

A.

We first consider Savoy’s argument that the evidence was

insufficient to support his convictions. When a criminal

conviction is appealed on the ground that the underlying

evidence is insufficient, we review the evidence in the light

most favorable to the Government to determine whether “any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v.

Abuelhawa, 523 F.3d 415, 422 (4th Cir. 2008) (citing United

States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en

banc)).

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 1.

In order to prove conspiracy to distribute and
possess cocaine base with intent to distribute, the
government [must] establish beyond a reasonable doubt
that: “(1) an agreement” to distribute and “possess .
. . 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. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008)

(quoting Burgos, 94 F.3d at 857). Savoy argues that the

evidence does not establish that he knew of any conspiracy or

knowingly entered into any agreement to distribute crack

cocaine. We disagree.

Because “a conspiracy is clandestine and covert,” it

“generally is proved by circumstantial evidence and the context

in which the circumstantial evidence is adduced.” Burgos, 94

F.3d at 857. “A conspiracy, therefore, may be inferred from a

development and collocation of circumstances.” Id. at 858

(internal quotation marks omitted). Once a conspiracy has been

shown to exist, “the evidence need only establish a slight

connection between the defendant and the conspiracy to support

conviction.” Id. at 861 (internal quotation marks omitted).

“[F]requently . . . contemporary drug conspiracies . . .

result[] in only a loosely-knit association of members linked

only by their mutual interest in sustaining the overall

enterprise of catering to the ultimate demands of a particular

9
drug consumption market . . . .” United States v. Banks, 10

F.3d 1044, 1054 (4th Cir. 1993). Witnesses, including several

of the alleged co-conspirators, testified at Savoy’s trial that

at the time of his arrest the Pioneer City housing complex was

an open-air drug market in which drug dealers conspired to sell

crack cocaine, protect each other from police investigation,

maintain the market for crack cocaine sales by sharing supplies

or referring customers, and excluding non-members. While Savoy

argues that he had no knowledge of the conspiracy and never

agreed to join it, Gray testified that Savoy knew he sold drugs

and that Savoy later accepted drugs from Gray given for the

express purpose of re-establishing Savoy in the business of

selling crack cocaine in Pioneer City following his release from

prison.

Other evidence showed that, in a drug market where members

of the conspiracy excluded non-members, Savoy was permitted to

sell drugs and had amicable relations with co-conspirators. For

example, three co-conspirators testified that Savoy sold drugs

in Pioneer City and Savoy was arrested in September 2004 for an

open alcohol container violation when officers caught him

drinking beer with two co-conspirators. A search subsequent to

that arrest led to the discovery of eight bags of crack cocaine

in Savoy’s pocket. Savoy also had crack cocaine in his

possession in Pioneer City at the time of his arrest on the

10
charges in the case at bar. Finally, the evidence of Savoy’s

participation in the beating of Kevin Johnson indicates not only

that Savoy was accepted by the conspiracy as one of its members-

-because the conspiracy allowed him to sell crack cocaine in

Pioneer City--but that Savoy actively furthered its goal of

excluding non-members even to the point of physical violence.

We conclude this evidence is sufficient to support a

rational jury’s finding beyond reasonable doubt that a

conspiracy to distribute and possess with intent to distribute

existed among the crack cocaine dealers in Pioneer City, and

that Savoy was a knowing and voluntary member of that

conspiracy. Accordingly, we affirm his conviction on Count One.

2.

To establish a violation of 18 U.S.C. § 924(c)(1), “the

Government [must] prove: (1) [the defendant] used or carried a

firearm (2) during and in relation to (3) a drug trafficking

offense.” United States v. Lipford, 203 F.3d 259, 265-66 (4th

Cir. 2000). “To meet the ‘in relation to’ requirement, the

Government must prove that the firearm has some purpose or

effect with respect to the drug trafficking crime[.] . . .

[T]he gun at least must facilitate or have the potential of

facilitating, the drug trafficking offense.” Id. at 266

(internal quotation marks omitted) (ellipsis and alteration in

11
original). Savoy argues that there is no evidence establishing

that the shooting of Officer Hicks occurred in relation to the

drug conspiracy. We agree.

There is no evidence in the record that any drugs were

present at the nightclub, that any drug transactions took place

there, or that any activity relating to the conspiracy occurred.

The Government argues that Savoy shot Officer Hicks to send a

message to the police and rival drug dealers from Annapolis not

to interfere in the Pioneer City drug market. However, while

witnesses testified that individuals from other areas were at

the party and that the fight began with an altercation between

someone from Pioneer City and someone from Annapolis, there is

no evidence that any rival drug dealers were present. In short,

the record fails to establish that Savoy had the audience the

Government contends he sought to impress. Similarly, there is

nothing but pure speculation that Savoy was in some theoretical

way furthering the conspiracy when he shot a police officer

during a nightclub brawl.

The Government had the burden to prove beyond reasonable

doubt that Savoy used a firearm in relation to the drug

conspiracy, i.e., that the firearm facilitated or had the

potential to facilitate the conspiracy. The Government did not

meet its burden and the district court erred in denying the

motion for judgment of acquittal on that charge. Accordingly,

12
we vacate Savoy’s conviction and sentence on Count Four and

dismiss that count of the indictment.

B.

We next turn to Savoy’s argument that the district court

erred when it failed to supplement the jury’s instructions in

response to its note and when it admitted the evidence of Kevin

Johnson’s beating. Savoy did not preserve either issue with a

timely objection at trial, so we review for plain error. E.g.,

Taylor v. Virginia Union University, 193 F.3d 219, 239 (4th Cir.

1999) (failure to object to district court’s response to jury

question); United States v. Chin, 83 F.3d 83, 87 (4th Cir.

1996) (failure to object to admission of evidence under Rule

404). To prevail on plain error review, the defendant

must demonstrate (1) that an error occurred, (2) that
the error was plain, and (3) that it affected his
substantial rights. If the defendant satisfies these
threshold requirements, correction of the error is
within our discretion, which is appropriately
exercised only when failure to do so would result in a
miscarriage of justice, such as when the defendant is
actually innocent or the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.

United States v. Farrior, 535 F.3d 210, 222 n.4 (4th Cir. 2008)

(internal quotation marks omitted) (alteration in original).

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 1.

Savoy does not argue that the district court’s response to

the jury’s note was an improper ex parte communication with the

jury. Rather, he argues only that the response was insufficient

to answer the question the jury’s note posed. Any response, or

lack of response, to a question from a deliberating jury is

within the sound discretion of the trial court. United States

v. Ellis, 121 F.3d 908, 925 (4th Cir. 1997).

The district court responded to the jury’s note by asking

for clarification of its question. Savoy concedes that “[i]t is

difficult even now to unpack what the jury’s particular question

was.” (Reply Br. 14.) Savoy argues that the note could

indicate that the jury wanted to know more about his state

convictions, about his prior arrests, or whether the Government

had to prove he sold drugs. Therefore, by all accounts, the

jury’s note was unclear and we cannot fault the district court’s

exercise of its discretion to attempt to ascertain the precise

issue on which the jury sought clarification before issuing any

supplemental instructions. Savoy therefore fails to satisfy the

first prong of plain error review because he has not

demonstrated that an error occurred. Moreover, because the jury

continued its deliberations and returned a verdict without

further instruction, Savoy has not demonstrated how the district

14
court’s response affected his substantial rights. Savoy simply

has not shown plain error on this issue.

2.

Savoy argues that the district court erred in admitting

evidence of the assault on Kevin Johnson because “[t]he only

purpose of this testimony was to portray Mr. Savoy’s character

in a negative light,” in violation of Federal Rule of Evidence

404(b). 1 (Br. Appellant 37.) Admission or exclusion of evidence

under Rule 404(b) is within the discretion of the trial court.

United States v. Jackson, 327 F.3d 273, 298 (4th Cir. 2003).

The Government contends “the beating . . . was an act

committed in furtherance of the Pioneer City drug conspiracy”

because “[t]he intimidation and physical assault of outsiders

was, as alleged in the indictment, a specific method of

operation utilized by the conspirators to protect the

conspiracy. . . . [T]he Pioneer City conspiracy depended on its

ability to exclude others--if necessary through physical force.”

(Br. Appellee 38.)

1
Savoy also argues for the first time in his reply brief
that the evidence should not have been admitted because its
prejudicial effect outweighed its probative value in violation
of Rule 403. We do not consider arguments raised for the first
time in a reply brief. See United States v. Brooks, 524 F.3d
549, 556 n.11 (4th Cir. 2008).

15
 The Government established through the testimony of Savoy’s

co-conspirators that the conspiracy did in fact endeavor to

exclude outsiders from the Pioneer City area. The Government

then introduced the evidence of Kevin Johnson’s beating, and

Savoy’s role in the beating, to link Savoy to the conspiracy and

its effort to protect its turf. We see no abuse of discretion

in the district court’s decision to admit the evidence for that

purpose and Savoy has failed to meet his burden of proving an

error occurred. We find no reversible error on this issue.

C.

Finally, Savoy argues the district court erred by imposing

the mandatory minimum life sentence required by 21 U.S.C. §

841(b)(1)(A). The district court imposed the sentence based on

Savoy’s three prior state drug convictions and the jury’s

special verdict that 50 grams or more of crack cocaine were

involved in the conspiracy. At sentencing, Savoy challenged the

inclusion of a 1994 conviction (K950039) on the ground that he

was a minor at the time of the offense and a 1997 conviction

(K9700895) on the ground that it was classified as a misdemeanor

under state law. On appeal, Savoy concedes that the Supreme

Court’s decision in Burgess v. United States, 128 S. Ct. 1572

(2008), forecloses his challenge to the 1997 conviction.

Together with an unchallenged 1995 conviction (K9501975), Savoy

16
clearly has at least two prior qualifying convictions, and we

need not reach his challenge to the inclusion of the 1994

conviction.

Savoy now argues, however, that the district court erred in

attributing to him all 50 grams or more of crack cocaine found

by the jury to have been involved in the conspiracy. 2 This issue

was not raised below and is therefore subject to plain error

review. E.g., United States v. Pendergraph, 388 F.3d 109, 113

(4th Cir. 2004) (failure to raise objection at sentencing

hearing).

In United States v. Collins, 415 F.3d 304 (4th Cir. 2005),

we held that the Supreme Court’s decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000), required a jury to find beyond

reasonable doubt the amount of crack cocaine attributable to

each specific defendant involved in a drug conspiracy. 415 F.3d

at 314. The jury’s finding may be based on evidence (1) that

the individual defendant himself distributed an amount of crack

cocaine or (2) that other members of the conspiracy did so, and

their actions were reasonably foreseeable to the individual

2
Savoy does not argue that the evidence is insufficient to
establish that 50 grams or more of crack was involved in the
conspiracy. He concedes that the Government introduced evidence
that members of the conspiracy collectively possessed 97.44
grams. (Br. Appellant 43.) Rather, he argues that the district
court improperly attributed 50 grams or more of this total to
him for sentencing purposes.

17
defendant. Id. at 311. A district court must not impose a

sentence under § 841(b) based on a jury’s finding of the amount

attributable to the conspiracy generally. Id. at 314. In

United States v. Foster, 507 F.3d 233 (4th Cir. 2007), we held

that a district court’s failure to comply with Collins by

instructing the jury to make individualized findings constitutes

reversible plain error. 3 Id. at 251-52.

There is no evidence in the record that Savoy personally

distributed 50 grams or more of crack cocaine. Consequently,

“for the statutory maximums and mandatory minimums of § 841(b)

to apply . . . the jury must determine that the threshold drug

amount was reasonably foreseeable to the individual defendant.”

Brooks, 524 F.3d at 558 (quoting Foster, 507 F.3d at 250-51)

(internal quotation marks omitted).

In Collins, the district court instructed the jury that

“[t]he amount of drugs applies to the entire group of

conspirators. In other words, it’s a conspiracy to distribute

3
Foster was tried jointly with two co-defendants and all of
them received life sentences under § 841(b). Foster’s co-
defendants also received life sentences arising from 18 U.S.C. §
924(j). We determined that the district court’s § 841(b)
sentencing error had no effect on the co-defendants and declined
to reverse their sentences. However, because Foster had not
been sentenced to life imprisonment under any other charge, the
life sentence improperly imposed under § 841(b) was necessarily
prejudicial and required reversal under the plain error standard
of review. Id. at 251-52.

18
50 grams or more of crack cocaine. That's what the charge is.

So the amount applies to the conspiracy, to the group.” 415

F.3d at 311. In Foster, “the district court instructed the jury

to determine . . . the amount of crack cocaine ‘involved in the

conspiracy.’” 507 F.3d at 249. In Brooks, the district court

instructed the jury “that ‘the amount of controlled substances

you will need to determine . . . is not the amount a single

defendant may have been involved with, but rather the amount of

controlled substances involved in the conspiracy as a whole.’”

524 F.3d at 557 (ellipsis in original). These cases are clearly

distinguishable from the one before us.

The district court in this case specifically instructed the

jury to find an amount of crack cocaine individually

attributable to Savoy, whether he personally distributed it or

possessed it with intent to distribute or whether the

distribution or possession with intent to distribute by his co-

conspirators was reasonably foreseeable to him:

A special verdict form, which you will see in a
moment, ladies and gentlemen, will be given to you on
which if you find the government has proven the
defendant’s membership in the charged conspiracy
beyond a reasonable doubt you must use to determine
the quantity of drugs attributable to Mr. Savoy.
. . . .
In determining what quantity of controlled
substance is attributable to the defendant, if any,
you should consider the following factors:
First, the defendant is accountable for the
quantity of drugs which he personally distributed or
possessed with intent to distribute[;]

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 Second, the defendant is also accountable for any
quantity of drugs which he attempted to or planned to
distribute or possess with intent to distribute.
Specifically, the defendant is accountable for those
drugs even if those drugs were never actually obtained
or distributed, so long as an objective of the
conspiracy was for the defendant to distribute or
possess with intent to distribute such a quantity of
drugs;
Third, the defendant is also accountable for any
quantity of drugs which another member of the
conspiracy distributed or possessed with intent to
distribute as part of the conspiracy, so long as it
was reasonably foreseeable to the defendant, Mr.
Savoy, that such a quantity of drugs would be involved
in the conspiracy which he joined;
Fourth and finally, the defendant is also
accountable for any quantity of drugs which another
member of the conspiracy attempted to or planned to
distribute or possess with intent to distribute, so
long as it was reasonably foreseeable to the
defendant, Mr. Savoy, that such a quantity of drugs
would be involved in the conspiracy which he joined.
The defendant is accountable for those drugs even if
those drugs were never actually obtained or
distributed by other members of the conspiracy, so
long as an objective of the conspiracy was for the
other members of the conspiracy to distribute or
possess with intent to distribute such a quantity of
drugs.
Now, these last two rules apply even if the
defendant did not personally participate in the acts
or plans of his co-conspirators or even if the
defendant did not have actual knowledge of those acts
or plans, so long as those acts or plans were
reasonably foreseeable to the defendant. The reason
for this is simply that a co-conspirator is deemed to
be the agent of all other members of the conspiracy.
Therefore, all of the co-conspirators bear criminal
responsibility for acts or plans that are undertaken
to further the goals of the conspiracy.
As I said a moment ago, your findings about the
quantity of controlled substances attributable to the
defendant will be noted on the verdict form, and I
will send you that form shortly.

(J.A. 288-90.)

20
 These instructions, unlike those given in Collins, Foster,

and Brooks, clearly direct the jury to make an individualized

finding of the amount of crack cocaine involved in the

conspiracy attributable to Savoy, either because he personally

distributed it or possessed it with intent to distribute or

because it was reasonably foreseeable to Savoy that his co-

conspirators distributed it or possessed it with intent to

distribute. Accordingly, there is no Collins error here. The

jury’s special verdict that 50 grams or more of crack cocaine

were involved in the conspiracy is an individualized finding

specific to Savoy and the district court properly relied on it

to impose the mandatory minimum life sentence required by §

841(b)(1)(A).

III.

For the foregoing reasons, we affirm the judgment of the

district court as to Count One, and vacate the judgment as to

Count Four and dismiss that count of the indictment.

AFFIRMED IN PART AND
VACATED AND DISMISSED IN PART

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