United States v. Short

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5044

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROMAINE ABDUL SHORT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:07-cr-00123-RBS-3)

Argued: May 14, 2010 Decided: July 2, 2010

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

Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Senior Judge Hamilton and Senior Judge Alarcón
joined.

ARGUED: James Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY,
Virginia Beach, Virginia, for Appellant. Howard Jacob Zlotnick,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Dana J. Boente, United States Attorney,
Alexandria, Virginia, Richard Cooke, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia; Caitlin Parker, Third Year Law Student, WILLIAM & MARY
SCHOOL OF LAW, Williamsburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
DUNCAN, Circuit Judge:

This appeal arises from a conviction and sentence for

conspiracy to possess with intent to distribute marijuana and

cocaine base, in violation of 21 U.S.C. § 846; use and carry of

a firearm in relation to drug trafficking, in violation of 18

U.S.C. § 924(c); conspiracy to obstruct, delay and affect

commerce by robbery, in violation of 18 U.S.C. § 1951(a);

possession with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2; robbery

affecting commerce, in violation of 18 U.S.C. § 1951(a); and

being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). The appellant challenges the district

court’s denial of his motion to dismiss the indictment based on

immunity and his motion to suppress evidence seized during a

house search. He also challenges the court’s decision to impose

a mandatory minimum of life imprisonment pursuant to 21 U.S.C.

§ 841(b)(1)(A). For the reasons that follow, we affirm.

I.

A.

Starting in the 1990s, Romaine Abdul Short, together with

others, belonged to a group known as “The Creek Boys.” This

group, among other things, manufactured powder into cocaine

3
base, sold crack cocaine, and robbed other drug dealers of

controlled substances. In December 2004, Detective Eric Kempf

of the Federal Violent Crimes Task Force learned of Short’s

activities, and asked Short if he would be willing to provide

him with some information. Short, who was then in custody on

pending state drug violations, agreed, and thereafter, Detective

Kempf and Short met several times from December 17, 2004 through

March 2, 2005. During those meetings, Short described his

involvement in crack cocaine and marijuana dealing, and gave

Detective Kempf several names. Short also testified before a

grand jury on drug related matters involving James Frink, Ricky

Frink, and Germell Allmond. Afterwards, Detective Kempf sent a

letter to the Newport News Commonwealth Attorney’s Office,

detailing Short’s cooperation. As a result of this letter, the

state charges against Short were reduced.

Short’s criminal activity continued after 2005. On April

15, 2006, he and Sam Wallace, another Creek Boy, arranged to

meet a drug dealer named Joseph Ocasio. Wallace had told

Ocasio’s contact, Sammy Zaharopoulos, that they wanted to buy

marijuana, but they actually planned to rob Ocasio. In

preparation, Short sought assistance from Demario Boyd, who

Short knew always carried a gun, would “straight take the weed

from [Ocasio],” and would only ask for a small amount of

4
marijuana in return. J.A. 573. That evening, Wallace picked up

Short and Boyd in his car and headed to the Bayberry Shopping

Center to meet Ocasio. While the marijuana purchase was taking

place, Boyd brandished his gun and shot Ocasio in the back of

the head, killing him. Wallace and Boyd quickly fled on foot,

while Short, carrying Ocasio’s marijuana sample, drove away in

Wallace’s car.

Responding to the murder, Detective Robert Vasquez located

and apprehended Wallace. Upon questioning him, Detective

Vasquez learned that Short had been involved in the Ocasio

murder. The next day, Detective Vasquez and his partner

Detective Richard Espinoza visited Short’s residence with ten to

twelve other police officers. 1 Detective Espinoza knocked on the

door, announced himself, and then asked everyone inside to come

out. Short came out with his wife Shenika Short (“Ms. Short”)

and two children. He was placed in handcuffs and then taken to

the police station for questioning. At the same time, Detective

Steven Smithley obtained consent to search the house from Ms.

Short. In the house, police officers found, among other things,

1
Detective Espinoza explained that they took such a large
contingent because Boyd, potentially armed and dangerous,
remained at large and could have been with Short, and because
they had “not recover[ed] the murder weapon from the scene.”
J.A. 56.

5
marijuana, a digital scale, and a sealed plastic bag containing

$1,000.

B.

Based on the Ocasio murder, the subsequent search, and

evidence that from 1996 through 2007, Short purchased and sold

firearms, marijuana, crack cocaine, and powder cocaine; robbed

several drug dealers; and was armed with a weapon while drug

trafficking, a federal grand jury in the Eastern District of

Virginia indicted Short on September 12, 2007, for conspiracy to

possess with intent to distribute marijuana and cocaine base in

violation of 21 U.S.C. § 846; conspiracy to obstruct, delay, and

affect commerce by robbery in violation of 18 U.S.C. § 1951(a);

possession with intent to distribute marijuana in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2; robbery

affecting commerce in violation of 18 U.S.C. § 1951(a); and

possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A). The government

later filed a superseding indictment that added charges for

possession with intent to distribute cocaine base in violation

of 21 U.S.C. § 841(a)(1), (b)(1)A)(iii) and 18 U.S.C. § 2, and

possession of a firearm by a felon in violation of 18 U.S.C.

§ 922(g)(1).

6
 In January 2008, Short moved to suppress the evidence

seized during the warrantless search of his home on the ground

that police conducted the search without valid consent. During

a hearing on the motion, Detective Smithley testified that,

following Short’s departure, Detective Smithley approached

Ms. Short, “explained to her what was going on, and then

ultimately just asked for a consent search for the residence.”

J.A. 113. He further testified that, after Ms. Short agreed to

cooperate, he obtained a consent form, “explained [it] to her,”

and watched her sign it. J.A. 113. According to Detective

Smithley, police officers began the search only after obtaining

consent. Ms. Short also testified and provided a different

account. Although she admitted giving consent, Ms. Short said

that police officers entered her home before she had consented,

and that she finally gave consent only because an officer said

that she and her children would “have to stand outside until

they got a search warrant.” J.A. 180. Ms. Short explained, “I

didn’t want me and my kids to stand outside. It was kind of

cold, so I didn’t think I had nothing to hide in my house, so I

signed it.” J.A. 182. Ultimately, the district court found her

testimony not credible and, concluding that “Ms. Short did give

consent,” denied Short’s motion to suppress the evidence seized

from his house. J.A. 274.

7
 Several months later, Short moved to dismiss the

superseding indictment on the ground that he had received

immunity by cooperating with law enforcement regarding his March

2005 grand jury testimony. During a hearing on the motion,

Detective Kempf explained that, although he gave Short a limited

promise in exchange for his cooperation, there was an important

caveat: “[S]ince Mr. Short was in custody, . . . I advised him

that any cooperation he gave would be related to the

Commonwealth Attorney since he had pending charges. By law no

promises could be made by me. I don’t have the authority to

make any promises.” J.A. 312.

Short also testified and provided a different account. He

said that Detective Kempf told him that “the only way that [he]

w[ould] be safe from ever getting prosecuted for any [of these

crimes] was for [him] to tell [Detective Kempf] everything from

the first time [he] ever picked up a blunt weed.” J.A. 343.

Accordingly, Short testified that he had provided Detective

Kempf with his entire criminal background, believing that he

would therefore be “protect[ed].” J.A. 350.

During the hearing, Short also submitted his grand jury

testimony as proof of immunity. During the grand jury

proceeding, Short admitted to “hustling” and then asked the

prosecutor whether he would get in trouble for this admission.

8
J.A. 1477. The prosecutor responded, “No, you are fine.” Id.

After confirming that Short was telling the truth and did not

shoot anyone, the prosecutor said, “You’re fine. Go ahead.”

Id. According to Short, the prosecutor was “verifying”

Detective Kempf’s promise of immunity in exchange for Short’s

grand jury testimony. J.A. 351-52.

Ultimately, the district court denied Short’s motion to

dismiss the superseding indictment. It found that, at most,

“[Short] had an informal use immunity agreement related to his

grand jury testimony” and also that “none of the charges in the

superseding indictment are related to [Short’s] brief grand jury

testimony at issue here.” J.A. 1202-03.

The case then proceeded to trial and Short was found guilty

on all but two counts. 2 After calculating Short’s applicable

guideline range under the federal sentencing guidelines, the

district court imposed the mandatory minimum penalty of life

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) based upon two

prior felony drug convictions. This appeal followed.

2
Short was not found guilty of possessing a firearm in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A), and knowingly and intentionally possessing with
(Continued)
9
 II.

On appeal, Short challenges the district court’s orders

denying his motion to dismiss the superseding indictment and his

motion to suppress. He also challenges the court’s application

of 21 U.S.C. § 841(b)(1)(A). We consider each matter in turn.

A.

We consider first the district court’s denial of Short’s

motion to dismiss the indictment based on a grant of immunity.

We review the district court’s factual determinations concerning

the existence and scope of an alleged immunity agreement for

clear error, see United States v. Martin, 25 F.3d 211, 217 (4th

Cir. 1994) (applying standard of review to plea agreement), and

its application of the law de novo, see United States v. Smith,

976 F.2d 861, 863 (4th Cir. 1992).

In this context, immunity may be either “transactional

immunity” or “use and derivative use immunity.” Kastigar v.

United States, 406 U.S. 441, 443 (1972). Transactional immunity

“accords full immunity from prosecution for the offense to which

the . . . testimony relates.” Id. at 453. Use and derivative

use immunity prohibits the use of testimony or any evidence

intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)A)(iii) and 18 U.S.C. § 2.

10
derived from that testimony against the witness in a criminal

prosecution. See id. at 452-53. Under this latter type of

immunity, the witness still may be prosecuted for crimes about

which he testifies if the government proves that it has other

evidence that is derived from a source wholly independent of the

testimony. United States v. Jarvis, 7 F.3d 404, 414 (4th Cir.

1993) (finding that “the government [is] free to use any other

evidence to prosecute”).

While an immunity agreement is typically “made when the

parties verbally express their mutual assent to its essential

terms, it may also be implied when the parties’ conduct

manifests their agreement.” United States v. McHan, 101 F.3d

1027, 1034 (4th Cir. 1996). Under the doctrine of “equitable

immunity,” immunity exists where: “(1) an agreement was made;

(2) the defendant has performed on his side; and (3) the

subsequent prosecution is directly related to offenses in which

the defendant, pursuant to the agreement, either assisted with

the investigation or testified for the government.” Id.

Ultimately, however, the defendant bears the burden of proving

the existence of an equitable immunity agreement. Id.

Applying this standard, the district court determined that

Short failed to meet his burden of proving the existence of

transactional immunity. At most, the district court noted,

11
“based on a review of [Short’s] grand jury testimony . . .

[Short] had an informal use immunity agreement related to his

grand jury testimony.” J.A. 1202. However, because Short

“testified at the grand jury regarding matters and individuals

which form no part of the current charges against [Short] in the

superseding indictment,” J.A. 1202, the district court found

that “even if [Short] did have [use] immunity as to his grand

jury testimony, there has clearly been no violation by the

United States,” J.A. 1203. Short now challenges these findings.

As proof that he received immunity, Short cites the statements

made by the prosecutor before the grand jury as well as

Detective Kempf’s statement that if Short told the truth and had

not shot anyone, he would “be alright and not be prosecuted.”

Appellant’s Br. at 19.

Nothing in the record persuades us that the district court

clearly erred in finding that the government did not agree to

give Short immunity based on his interactions with Detective

Kempf. Short testified that Detective Kempf told him that “the

only way that [he would] be safe from ever getting prosecuted

for any of [his previous crimes] was for [him] to tell

[Detective Kempf] everything from the first time [he] ever

picked up a blunt weed.” J.A. 343. By contrast, Detective

Kempf explained that prior to their interview, he “advised him

12
that any cooperation . . . would be related to the Commonwealth

Attorney since he had pending charges,” but that “[b]y law no

promises could be made by [him]” because he did not have the

authority. J.A. 312. Ultimately, the district court found

Detective Kempf credible and Short unworthy of belief. We are

given no reason to challenge that credibility finding,

particularly since during his testimony, Short admitted to lying

to a probation officer about his drug use “to help [him]self.”

J.A. 359. See United States v. Thompson, 554 F.3d 450, 452 (4th

Cir. 2009) (“[W]hen a district court’s factual finding is based

upon assessments of witness credibility, such finding is

deserving of the highest degree of appellate deference.”

(internal quotations omitted)). The record indicates, at most,

that Detective Kempf promised Short that he would write a letter

on his behalf to the Commonwealth Attorney. Detective Kempf

kept his promise, and as a result of this letter, Short was able

to plead guilty to a reduced charge on a pending state matter.

The only other evidence offered in support of Short’s

motion was the grand jury testimony, but Short’s colloquy with

the prosecutor does not evidence “a meeting of the minds that

the government would refrain from further prosecuting him in

exchange for his cooperation,” and thus, Short cannot establish

transactional immunity. McHan, 101 F.3d at 1034. All this

13
colloquy shows is Short asking the prosecutor whether he would

get in trouble for “hustling,” and the prosecutor reassuring him

that he would be fine. J.A. 1477. Even assuming that this

colloquy can be construed as a grant of use immunity, the

district court found, as a matter of fact, that the charges

contained in the superseding indictment were based on

independent sources of information, and not based on any matters

disclosed by Short during his grand jury testimony. Short

offers no evidence to rebut this finding, 3 and thus, we conclude

3
At oral argument, Short argued that if we find that he was
entitled to use immunity, we must find that the district court
erred in failing to conduct a Kastigar hearing. United States
v. Harris, 973 F.2d 333, 336 (4th Cir. 1992) (noting that in a
Kastigar hearing, the government must “demonstrate that all its
evidence came from sources independent of the compelled
testimony”). We disagree. “Whether the oral use-immunity
agreement at issue in this case is subject to the full Kastigar
protections is doubtful because [Short] voluntarily cooperated
with the government.” McHan, 101 F.3d at 1036; see also United
States v. Roberson, 872 F.2d 597, 611-12 (5th Cir.) (holding
that where cooperation was not compelled but was voluntarily
provided pursuant to a state immunity agreement, that agreement
cannot bind federal prosecutors), cert. denied, 493 U.S. 861
(1989); United States v. Eliason, 3 F.3d 1149, 1152-53 (7th Cir.
1993) (same); United States v. Camp, 72 F.3d 759, 761 (9th Cir.
1995) (same), cert. denied, 517 U.S. 1162 (1996). Further, to
the extent that a full Kastigar hearing is ever appropriate in
non-compulsion cases, it was not required in this case because,
at most, the government provided Short with use immunity, not
derivative use immunity, and there is no evidence in the record
showing that the government directly used the immunized
testimony. See United States v. Smith, 452 F.3d 323, 337 (4th
Cir. 2006) (finding no Kastigar hearing is required where the
agreement conferred use immunity only, and the government did
not use the immunized testimony).

14
that the district court did not clearly err in finding that if

Short was granted use immunity, the government did not violate

that agreement. See United States v. Jones, 542 F.2d 186, 199

(4th Cir. 1976) (findings of fact related to independence of

evidence from immunized testimony will be overturned only if

clearly erroneous), cert. denied, 426 U.S. 922 (1976).

Because Short never had transactional immunity and the

government did not violate any purported agreement for use

immunity, we find no error in the district court’s denial of

Short’s motion to dismiss.

B.

We next consider the district court’s denial of the motion

to suppress. In ruling on a motion to suppress, we review the

district court’s legal conclusions de novo and its underlying

factual findings for clear error. United States v. Buckner, 473

F.3d 551, 553 (4th Cir. 2007).

Short argues that the district court erred in finding that

his wife consented to the search of his home. He maintains that

his wife’s consent was an involuntary acquiescence to a claim of

lawful authority, given only after the official conducting the

search asserted he would obtain a warrant, if necessary. Thus,

15
he contends the district court should have suppressed the

evidence obtained through the search of his home.

In determining whether consent to search was freely and

voluntarily given, we examine the totality of the circumstances

surrounding the consent. United States v. Lattimore, 87 F.3d

647, 650 (4th Cir. 1996) (en banc). In viewing the totality of

the circumstances, it is appropriate to consider “the

characteristics of the [person giving consent] (such as age,

maturity, education, intelligence, and experience) as well as

the conditions under which the consent to search was given (such

as the officer’s conduct; the number of officers present; and

the duration, location, and time of the encounter).” Id.

Whether the person giving consent knew that she possessed a

right to refuse consent also is relevant in determining the

voluntariness of consent, although the government need not

demonstrate that the person giving consent knew of her right to

refuse consent to prove that the consent was voluntary. Id.

The district court determined that Ms. Short voluntarily

consented to the search. The district court found:

Ms. Short did give consent. She said it was okay to
search. She voluntarily and knowingly signed the
consent to search form.

The witness who testified -- Detective Smithley,
I believe is his name -- was a very credible witness.
He didn’t appear at all rude or forceful or
intimidating, and I specifically asked Ms. Short if

16
 the officer was courteous to her, and she said, oh,
yes, he was courteous. There was nothing that was
overpowering about this situation, and I would find as
a fact that Ms. Short did okay the search, that she
was an appropriate individual to consent to the
search, she lived there, she was his wife, and that
the search was appropriate without a warrant as a
consent search.

J.A. 274-75.

Based on our review of the totality of the surrounding

circumstances, we cannot say that the factual finding of the

district court that Ms. Short’s consent was voluntary was

clearly erroneous. On the date of the search, Ms. Short was 26

years old, the mother of two children, and held employment with

North End Cab Company. Testimony also established that she had

dealt with police officers before and been arrested on a number

of occasions. Further, Ms. Short admitted to signing the

consent form and not revoking that consent at any time during

the search. It is true that Ms. Short testified, on several

occasions, that she agreed to sign the document because

otherwise, she “and [her] kids [would have] to stand outside” in

the cold while the police obtained a warrant. 4 J.A. 182. She

also admitted, however, that she signed the consent form because

4
Strangely enough, after giving consent, Ms. Short
testified that she and her step-daughter stayed outside on the
porch while the officers searched the home. When asked why she
stayed outside when her stated reason for signing the form was
(Continued)
17
she “didn’t think at the time . . . there was anything to get in

[her] house.” J.A. 184-85. Moreover, she explained that she

found the police officer that asked for the consent “courteous.”

J.A. 191. Based on this record, the conclusion that Ms. Short’s

oral consent was given voluntarily is amply supported; indeed,

we may safely say that no other opinion is supportable.

Nevertheless, Short argues that the police officer’s

statement that he could apply for a warrant if Ms. Short denied

consent invalidated the consent. We disagree. “The fact that a

search warrant was mentioned does not necessarily constitute a

coercive factor negating consent.” United States v. Hummer, 916

F.2d 186, 190 (4th Cir. 1990) (internal quotations and citation

omitted), abrogated on other grounds by United States v.

Hairston, 96 F.3d 102, 106 (4th Cir. 1996). On the contrary,

this is but one factor to consider in determining whether

voluntary consent was given, and can be negated if the person

giving consent “is advised several times orally and in writing

of [her] right to refuse the search.” Id.; see also United

States v. Dennis, 625 F.2d 782, 793 (8th Cir. 1980) (finding

voluntary consent, although consent was given after officers

informed defendant that they would seek a warrant if consent was

so she would not be forced to stand outside, she answered, “I
don’t know. But I just did.” J.A. 193.

18
not given); United States v. Drennen, No. 96-4301, 1997 WL

543379, at *4 (4th Cir. Sept. 5, 1997) (same). Here, Ms. Short

was given a form that delineated her rights, and she was told

orally by a police officer that she didn’t need to consent. In

light of these circumstances, we find that the district court

did not clearly err in finding that Ms. Smith gave informed,

voluntary consent to search her home. This is particularly so

in light of the rule that when the lower court bases its ruling

on oral testimony heard at a suppression hearing, such as is the

case here, the ruling may not be disturbed “unless it can be

said that the view of the evidence taken by the district court

is implausible in light of the entire record.” 5 Lattimore, 87

F.3d at 651.

5
Short also argues that the evidence should have been
suppressed because the search resulted from his unlawful arrest.
See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (finding
that generally “evidence which derives . . . immediately from an
unlawful entry and an unauthorized arrest . . . is . . . the
‘fruit’ of official illegality,” and should be suppressed). We
disagree. Not all evidence “is [the] ‘fruit of the poisonous
tree’ simply because it would not have come to light but for the
illegal actions of the police.” Id. at 487-88. “Rather, the
more apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.’” Id. at 488 (quoting
Maguire, Evidence of Guilt, 221 (1959)). Here, Short has
proposed no explanation, and we see none, for how the search
resulted from the purported unlawful arrest. Thus, we find
Short’s argument without merit.

19
 C.

Finally, we consider the district court’s determination

that Short was subject to a mandatory minimum sentence of life

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). “We review

de novo the district court’s interpretation of the statute and

conclusion that [Short’s] prior convictions were predicate

offenses under the statute.” United States v. Hawkins, 548 F.3d

1143, 1149 (8th Cir. 2008).

Section 841(b)(1)(A) provides that if any person commits a

federal drug offense involving 50 grams or more of cocaine base

“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.” 21 U.S.C.

§ 841(b)(1)(A). Because the jury convicted Short of conspiracy

to possess with intent to distribute cocaine base in excess of

50 grams, and because Short was convicted in state court in

March 2004 and December 2005 of two felony drug offenses, the

district court found that an enhancement under § 841(b)(1)(A)

was appropriate.

Short argues that the district court erroneously relied on

these two state convictions to enhance his sentence because the

government had failed to establish that they were not part of

the same conspiracy charged in Count 1 of the superseding

20
indictment. He reasons that these two convictions cannot be

“prior felony drug offense[s]” for purposes of § 841(b)(1)(A)

because they occurred while the charged conspiracy was taking

place. We disagree.

We have squarely held that, for purposes of § 841(b)(1)(A),

“[w]hen a defendant is convicted of a drug conspiracy under 21

U.S.C. § 846, prior felony drug convictions that fall within the

conspiracy period may be used to enhance the defendant’s

sentence if the conspiracy continued after his earlier

convictions were final.” United States v. Smith, 451 F.3d 209,

225-26 (4th Cir. 2006); see also United States v. Moore, 305 F.

App’x 130, 134 (4th Cir. 2008) (finding that 2000 and 2003

convictions could be considered prior convictions for sentencing

enhancement purposes where conspiracy began in 1987 and

continued through 2005). Here, the charged conspiracy continued

through 2007, and thus, we find no error in the district court’s

use of Short’s 2004 and 2005 convictions for § 841(b)(1)(A)

enhancement purposes. 6

6
Short also argues that the court erroneously applied the
base offense level from section 2A1.1 in the U.S. Sentencing
Guidelines. Because he faced a statutory mandatory minimum
sentence of life imprisonment, however, his guideline sentence
was necessarily life imprisonment pursuant to section 5G1.1.
See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable guideline
(Continued)
21
 III.

For the foregoing reasons, we

AFFIRM.

range, the statutorily required minimum sentence shall be the
guideline sentence.”). The issue is thus moot.

22