UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHARU BEY, a/k/a Jeffrey Lewis,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-2)
Submitted: January 26, 2011 Decided: March 4, 2011
Before NIEMEYER, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharu Bey was convicted by a jury of conspiracy to
possess with intent to distribute at least 100 kilograms of
marijuana, 21 U.S.C. § 846 (2006) (Count One); possession with
intent to distribute at least 100 kilograms of marijuana, and
aiding or abetting, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (2006)
(Count Two); and unlawful possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1) (2006) (Count Four). * Bey appeals
his conviction and sentence, alleging that (1) the district
court erred in entering judgment based on a defective verdict
form that constructively amended the indictment; (2) the court
clearly erred in determining the statutory sentencing range
because the jury’s finding on drug amounts did not comply with
Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) his
sentence was improperly enhanced based on acquitted conduct and
enhancements that amounted to impermissible double counting.
Bey also seeks leave to file two pro se supplemental briefs
arguing these issues and raising new issues. We grant leave to
file the supplemental briefs. However, we find no merit in any
*
Bey was tried jointly with co-defendants Ruben Barraza and
Ruben Garcia on charges brought in a third superseding
indictment. He was acquitted of using and carrying a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)
(2006) (Count Three).
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of the issues Bey raises, and affirm the conviction and
sentence.
Bey was arrested on March 22, 2007, after he received
fifty pounds of marijuana from co-defendant Juan Carlos Sanchez-
Solorzano in Charlotte, North Carolina, two blocks from a
warehouse where Sanchez-Solorzano and co-defendant Patrick
Schwenke had unloaded a 2100-pound delivery of marijuana from
Texas earlier the same day. In an interview immediately
following his arrest, Bey said that he, not his passenger, was
responsible for the gun that was seized from Bey’s car.
At Bey’s trial, Sanchez-Solorzano testified that,
beginning in 2003, Bey bought marijuana regularly from Schwenke
at least twenty times, in quantities ranging from fifteen to
seventy-five pounds, most often in fifty-pound quantities.
Sanchez-Solorzano said that, in 2004, Bey received between 150
and 350 pounds per month. Bey’s wife, Myra Lewis, testified
that she owned the gun seized from Bey’s car and had put it in
the car. However, she testified that she had not placed a
bullet in the chamber of the firearm, although agents found a
bullet there when the gun was seized.
At the close of the trial, the district court
instructed the jurors that if they found Bey guilty of Count
One, the conspiracy charge, they would then be asked to
determine the quantity of marijuana involved in the overall
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conspiracy. The court instructed the jury that “all members of
a conspiracy are responsible for acts committed by the other
members as long as those acts are committed to help advance the
conspiracy, and are within the reasonably foreseeable scope of
the agreement.”
The verdict forms provided to the jurors gave them the
option of finding Bey guilty of a conspiracy involving
“distribution of” 1000 kilograms of marijuana, 100 kilograms of
marijuana, or less than 100 kilograms of marijuana. For Count
Two, which charged possession with intent to distribute
marijuana, the jury had the option of finding that Bey
“possessed or aided and abetted the possession of” 100 kilograms
or less than 100 kilograms of marijuana with intent to
distribute. The jury convicted Bey of participating in a
conspiracy involving at least 100 kilograms of marijuana,
possession with intent to distribute at least 100 kilograms of
marijuana, and unlawful possession of a firearm by a convicted
felon.
At sentencing, Bey argued first that that “the default
penalty provision in § 841” (in his case, a ten-year maximum)
should apply because, for both Counts One and Two, the question
posed to the jury on the verdict form concerning the amount of
marijuana did not track the wording in the indictment or the
jury instructions. Therefore, he argued, the jury’s finding did
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not comply with Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), which requires that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” The
district court rejected Bey’s argument, found him responsible,
for sentencing purposes, for over 3000 kilograms of marijuana,
and found that he had possessed the gun in connection with drug
trafficking. The resulting guideline calculation produced an
advisory guideline range of 202-365 months. The court imposed
concurrent sentences of 324 months for Counts One and Two, and a
concurrent ten-year sentence for Count Four, the firearm
offense.
On appeal, Bey first contends that use of the terms
“distribution” and “possession” relating to Counts One and Two
on the verdict form amounted to a constructive amendment of the
indictment. “The Fifth Amendment . . . guarantees that a
criminal defendant will be tried only on charges in a grand jury
indictment . . . [and] . . . only the grand jury may broaden or
alter the charges in the indictment.” United States v. Randall,
171 F.3d 195, 203 (4th Cir. 1999) (internal quotations omitted).
“When the government, through its presentation of evidence or
its argument, or the district court, through its instructions to
the jury, or both, broadens the bases for conviction beyond
those charged in the indictment, a constructive amendment –
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sometimes referred to as a fatal variance – occurs.” United
States v. Malloy, 568 F.3d 166, 178 (4th Cir. 2009). A fatal
variance is per se error, and must be corrected on appeal even
if the appellant has not preserved it by objection. Randall,
171 F.3d at 203 (citing United States v. Floresca, 38 F.3d 706,
712-13 (4th Cir. 1994) (en banc)). Any variance which does not
“change the elements of the offense charged, such that the
defendant is actually convicted of a crime other than that
charged in the indictment,” is not a fatal variance because it
“does not violate a defendant’s constitutional rights . . .
either by surprising him at trial and hindering the preparation
of his defense, or by exposing him to the danger of a second
prosecution for the same offense.” Malloy, 568 F.3d at 178.
Bey did not raise this issue in a timely manner below.
Objections to jury instructions must be made before the jury
begins deliberations to be preserved for appeal. Fed. R. Crim.
P. 30(d); United States v. Robinson, ___ F.3d ___, 2010 WL
4869770, at *10 (4th Cir. Dec. 1, 2010); United States v.
Cardinas Garcia, 596 F.3d 799, 798 (10th Cir.), cert. denied,
130 S. Ct. 3299 (2010). Therefore, this Court’s review of the
issue is for plain error. Garcia, 596 F.3d at 798.
“When reviewing a jury verdict form,” [the appeals
court] must determine whether it, along with the instructions
read to the jury, as a whole adequately stated the applicable
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law.” Id. at 799. Generally, a minor error will not be enough
to confuse a jury when the instructions as a whole state the law
clearly. Id. at 800; but see United States v. Mouling, 557 F.3d
658, 665 (D.C. Cir.) (Apprendi error in jury instructions cannot
be cured by including drug quantity on verdict form), cert.
denied, 130 S. Ct. 795 (2009).
Because of the divergence between the offenses charged
in Counts One and Two and the verdict form’s wording of the
questions addressing the quantity of marijuana involved in each
count, Bey argues that the questions addressed two offenses
different from the charged offenses and the district court
committed reversible error in entering judgment on the jury’s
verdict. Bey concedes that the district court properly
instructed the jury on the charged offenses and that the parties
argued the law correctly to the jury. However, with respect to
Count One, he contends that the verdict form “was, at best,
confusing and, at worst, constituted a fatal variance[.]” With
respect to Count Two, Bey argues that the verdict form created a
fatal variance by “unlawfully broaden[ing] the deliberations
such that [he] could have been convicted for an offense for
which he was not indicted.”
The record discloses that the jurors convicted Bey of
the offenses charged in Counts One and Two after they were
properly instructed by the court about the elements of
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conspiracy and possession with intent to distribute, and the
government presented evidence that supported each charge. The
wording in the verdict form questions directed jurors to the
amount of marijuana involved in each offense and did not create
a fatal variance. The jurors addressed those questions only
after they decided Bey’s guilt. Thus, Bey has not shown error,
much less plain error.
Bey next contends that the jury’s finding as to the
quantity of marijuana involved in Counts One and Two did not
comply with Apprendi. Under Apprendi, “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for the
crime beyond the prescribed statutory maximum must be submitted
to the jury and proved beyond a reasonable doubt.” Apprendi,
530 U.S. at 490. Thus the government must prove, and the jury
must find, drug quantities that trigger the higher statutory
maximum sentences set out in § 841(b)(1)(A) and (B). Because
Bey raised this legal issue at sentencing, review is de novo.
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
Bey first claims that it was error under Apprendi for
the jury to find, on the conspiracy count, that Bey was involved
with 100 kilograms of marijuana because it did not match the
1000 kilograms charged in Count One. The jurors were instructed
to find the amount of marijuana involved in the conspiracy as a
whole and the amount attributable to Bey personally. They did
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both. No Apprendi error is discernible in this regard. See
Collins, 415 F.3d at 312 (jury must determine the quantity of
drugs attributable to the defendant individually, not just the
quantity involved in the entire conspiracy).
Bey also argues that, because the indictment charged a
conspiracy to possess with intent to distribute in Count One and
possession with intent to distribute in Count Two, the jury’s
determination as to the “distribution” and “possession” of a
quantity of marijuana in connection with Count One and Count
Two, respectively, was not a determination related to the
offenses charged in the indictment. Therefore, he argues, the
jury made no determination of marijuana quantity for Counts One
and Two, and the district court should have applied the default
provision in § 841(b), that is, subsection (b)(1)(D), which
applies when the offense involves less than fifty kilograms of
marijuana and provides a statutory maximum (with a prior drug
conviction) of ten years.
We conclude that the jury was correctly instructed
about the elements of the charged offenses and that the
imprecise language on the verdict form was not so confusing or
misleading as to call the jury’s finding into question. The
verdict form gave the jury the option of finding, for each
offense, that Bey was involved with less than 100 kilograms of
marijuana, an option that was added at the request of Bey’s
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attorney. The jury instead found that Bey was involved with at
least 100 kilograms for each count. Thus, the jury made the
required finding in compliance with Apprendi.
Bey challenges the two-level sentencing enhancement he
received under USSG § 2D1.1(b)(1) for possession of a firearm
during the offense. The increase is authorized if the defendant
possessed a dangerous weapon during the offense. Application
Note 3 to § 2D1.1 explains that the enhancement “should be
applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” The
district court’s factual finding that Bey possessed a dangerous
weapon during the offense is reviewed for clear error. United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). The
government “need only show that the weapon was present during
the relevant illegal drug activity.” Id.
Bey maintains that there was no evidence that he
constructively possessed the gun seized from his car in light of
his acquittal on the § 924(c) charge and his wife’s testimony
that she purchased the gun and inadvertently left it in the car.
However, immediately following his arrest, Bey told the agents
he was responsible for the gun’s presence in his car. Bey’s
wife, Myra Lewis, testified at trial that she had not placed a
bullet in the chamber. The case agent testified that, along
with the gun, two magazines of hollow-point bullets were seized,
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and that the gun had a bullet in the chamber. Therefore, in
making its finding, the district court could infer that Bey had
placed the bullet in the gun. The district court did not
clearly err when it decided that Bey possessed the firearm
during the drug offense.
Last, Bey argues that the court erred when it made a
two-level enhancement under § 2D1.1(b)(1) for possession of a
firearm and a four-level enhancement for using or possessing a
firearm in connection with another felony offense under
§ 2K2.1(b)(6), with both enhancements being based on the same
gun. Bey contends that the enhancement under § 2K2.1(b)(6) was
unreasonable and was reversible error in light of his acquittal
on the § 924(c) charge.
The district court correctly adopted the probation
officer’s calculation of Bey’s offense level, which started with
separate offense level calculations for Counts One and Two
(grouped together in one group under USSG § 3D1.2(c)) and Count
Four (placed in a separate group). See USSG § 3D1.1(a)(2)
(Procedure for Determining Offense Level on Multiple Counts). A
firearm enhancement was correctly made in the calculation for
both Counts One/Two and Count Four. The combined offense level
was then determined as directed in § 3D1.1(a)(3). No double
counting error occurred.
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We therefore affirm the sentence imposed by the
district court. We grant Bey’s motions to file two separate pro
se supplemental briefs and have considered the additional issues
raised there, but find no merit in them. 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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