United States v. Tremayne Blackwell

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4193

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TREMAYNE KENDRICK BLACKWELL, a/k/a Little Kenny, a/k/a
Tremayne Oakley Kendrick, a/k/a Kenny, a/k/a Kendrick
Jermaine Oakley, a/k/a Kendrick Tremayne Oakley,

Defendant – Appellant.

No. 09-4202

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DERRICK RAYSHAWN PARKS, a/k/a Bam, a/k/a Bam Parks, a/k/a
Rayshawn Parks,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00257-RLV-DCK-1; 5:05-cr-
00257-RLV-DCK-2)

Argued: May 13, 2011 Decided: June 29, 2011
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina; Scott Hadden Gsell,
Charlotte, North Carolina, for Appellants. Richard Lee Edwards,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director,
Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant Derrick Rayshawn
Parks. Edward R. Ryan, United States Attorney, Adam Morris,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Based on evidence showing their involvement in a drug

distribution organization operating near Statesville, North

Carolina, from 1999 to 2005, Appellants Tremayne Kendrick

Blackwell and Derrick Rayshawn Parks were charged in a one-count

indictment with conspiring to possess with intent to distribute

50 grams or more of crack cocaine and five kilograms or more of

cocaine powder. See 21 U.S.C. § 841(a)(2), (b)(1)(A)(ii),

(iii); 21 U.S.C. § 846. The government also filed a notice that

it intended to seek enhanced penalties under 21 U.S.C. § 851

based on Blackwell’s and Parks’ prior drug-related convictions.

Appellants were convicted after a jury trial. The district

court imposed a life sentence for Blackwell and a 360-month

sentence for Parks. Appellants raise several challenges to

their convictions, and Parks challenges his sentence. We

affirm.

I.

Briefly, the evidence at trial showed the following.

Beginning in 1998-1999, Richard Eckles oversaw the operation of

a cocaine distribution ring near Statesville. Eckles obtained

kilogram-sized quantities of cocaine for distribution by lower-

level dealers and stored the drugs in the homes of various

relatives, including his sister Marlene and his niece Shonika.

3
Eckles used his sister’s home to cook cocaine powder into crack.

Milton Gaines, Shonika’s boyfriend, helped Eckles prepare crack

for distribution.

Eckles used numerous distributors, including Shonika,

Gaines, and Appellant Parks, whom Eckles had known since

childhood. Parks initially bought drugs from Shonika and Gaines

and later made at least four purchases directly from Eckles in

quantities of 4.5 ounces for a total of half of a kilogram.

Parks also purchased 9- to 18-ounce quantities from Robert

Geter, who was also connected to the organization.

Appellant Blackwell was a friend of Parks and spent time

with Parks on a regular basis at Vin Booe’s house, where Parks

and Blackwell sold crack, and at Geter’s house. Blackwell was

also one of Shonika’s customers; he purchased crack from Shonika

in 4.5-ounce quantities. Blackwell also purchased crack

directly from Gaines.

Blackwell and Parks both purchased drugs from and sold

drugs to numerous members of Eckles’ organization. Toney Young,

for example, was one of Eckles’ suppliers. Young also made

trips to Greensboro to buy drugs for Eckles in kilogram and

half-kilogram quantities from Robert Dean. Before making these

trips, Young would pool his money together with Eckles, Parks

and others. Blackwell also added money on one occasion. Young

also sold crack directly to Parks and Blackwell, and he

4
purchased from them on occasion as well. Likewise, Blackwell

and Parks had a similar buyer-seller relationship with various

participants in Eckles’ operation—Oderia Chipley, Deleon Dalton,

Okiera Myers, and Lashon Gaither. Gaither testified that for a

period of time in 2000 and 2001, he purchased crack from

Blackwell through an intermediary on a weekly basis.

Blackwell was not gainfully employed, but he owned several

vehicles equipped with expensive stereo components and other

special features. Officers also seized $5,600 from Blackwell’s

bedroom, as well as $15,000 in cash from Parks’ bedroom.

Moreover, scales with cocaine residue were also seized from the

house where Parks and Blackwell were staying.

At the close of the evidence, the jury found Parks and

Blackwell both guilty on the sole count in the indictment.

Using a special verdict form, the jury also found beyond a

reasonable doubt that 50 grams or more of crack cocaine and 5

kilograms or more of cocaine powder was attributable to

Blackwell and Parks.

II.

Approximately six months after the verdict, Appellants

moved under Rule 33 of the Federal Rules of Criminal Procedure

for a new trial on three grounds, only two of which they pursue

on appeal: (1) that Juror Martin was biased against them and

5
failed to disclose during voir dire that he knew them; and (2)

that the jury was tainted by threatening comments from third

parties to various individual jurors. After an evidentiary

hearing, the district court denied Appellants’ motion for a new

trial. We review a district court’s order granting or denying a

motion for new trial under Rule 33 for an abuse of discretion.

See United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).

Finding no abuse of discretion by the district court, we reject

Appellants’ claim of entitlement to a new trial on both of these

grounds.

Juror Bias. During voir dire, the district court asked the

jury panel as a group whether anyone knew the defendants or the

lawyers. Juror Martin did not respond, thereby silently

indicating that he did not know either Parks or Blackwell. When

questioned individually by the attorneys, Martin assured the

court that he did not know of any reason he could not be fair

and impartial, that he could render a decision based on the

evidence and nothing more, and that he could find Appellants not

guilty if the evidence dictated such a finding.

In conjunction with their motion for a new trial,

Appellants submitted an affidavit from James Allard, an

investigator they hired to interview jurors after the trial

about the effect of the third-party communications. Based on

his investigation, Allard alleged that Juror Martin knew both

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Parks and Blackwell prior to trial. According to Allard, Martin

had seen them “around town” and knew that they had been tried on

drug-related charges in a previous case but believed the judge

or jury in that trial had “passed it off.” J.A. 1220a. Juror

Martin also allegedly told Allard that while Appellants were

being tried on these prior drug charges, Martin was at the

courthouse on an unrelated matter and saw Appellants laughing

“just like it was a big joke [as if] they knew they were going

to get off.” J.A. 1220b.

At the evidentiary hearing, however, Juror Martin, who did

not recognize Allard in court or recall having spoken to a

defense investigator, contradicted several of the assertions in

the Allard affidavit. For example, Juror Martin testified that

he did not know Appellants personally but that he had seen them

driving on the street before. Juror Martin acknowledged that,

before trial, he had heard co-workers discussing Parks’ and

Blackwell’s involvement in drugs when they learned that Martin

could potentially serve as a juror. Juror Martin denied that he

told Allard that the judge “let off” Appellants in the previous

case or that he saw Appellants laughing and approaching their

drug charges in a cavalier fashion. Finally, Juror Martin

testified that he based his guilty verdict vote only on the

evidence presented at trial and not on any previous out-of-court

knowledge.

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 To obtain a new trial because of purported juror dishonesty

during voir dire, a defendant “must first demonstrate that a

juror failed to answer honestly a material question on voir

dire, and then further show that a correct response would have

provided a valid basis for a challenge for cause.” McDonough

Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see

Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002).

Additionally, “[e]ven where . . . the two parts of the McDonough

test have been satisfied, a juror’s bias is only established

under McDonough if the juror’s motives for concealing

information or the reasons that affect the juror’s impartiality

can truly be said to affect the fairness of the trial.” Conaway

v. Polk, 453 F.3d 567, 588 (4th Cir. 2006) (internal quotation

marks and alterations omitted).

The district court assumed for purposes of analysis that

the first McDonough prong was satisfied, i.e., that Martin

“failed to answer honestly a material question on voir dire.”

McDonough, 464 U.S. at 556. Nonetheless, the district court

concluded that there was no actual or implied bias on the part

of Juror Martin such that a “for cause” challenge would have

necessarily succeeded:

At most, Juror Martin knew or had heard something of
Defendants’ . . . reputations in the community.
Martin never had any personal dealings with either of
the Defendants, nor did Martin possess any personal
knowledge about the charged conduct. Martin was

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 consistent in advising Investigator Allard and the
Court that he based his verdict on the evidence
presented during trial as opposed to any extraneous
discussions [he] overheard . . . . Although this
Court likely would have excused Juror Martin for cause
in an abundance of caution, [Appellants] fail to
establish that an implied bias existed that would have
required the Court to excuse Juror Martin for cause.
For these reasons, the Court finds that the second
prong of McDonough is not met.

J.A. 1413-14.

Appellants contend that the district court misapprehended

the McDonough standard because McDonough obligates a defendant

to establish only that the trial court had a valid reason to

dismiss the dishonest juror, not that the trial court would have

been required to dismiss the juror. As this court has observed,

however, a “McDonough claim necessarily fails unless the court

would have committed reversible error-that is, abused its

discretion-in failing to dismiss [a juror] . . . (1) where a per

se rule of disqualification applies; [or] (2) where the court

demonstrates a clear disregard for the actual bias of the

juror.” United States v. Fulks, 454 F.3d 410, 432 (4th Cir.

2006) (internal quotation marks omitted). Appellants have

identified no per se rule of disqualification applicable in

light of Juror Martin’s testimony at the hearing. Moreover, we

have found nothing in our review of the record to establish that

the district court clearly erred in finding no actual bias.

Juror Martin denied stating to Allard that he saw Appellants

9
laughing or that Appellants believed they would be acquitted.

Rather, Juror Martin made clear that he had no personal

knowledge of the Appellants and was only generally aware of

them. Martin specifically denied any knowledge that Appellants

were involved in drug-related activity. Therefore, Appellants

have also failed to establish that the district court clearly

disregarded any actual bias harbored by Juror Martin.

We find no error in the district court’s conclusion that

Appellants were unable to establish the second prong of

McDonough. Accordingly, we reject Appellants’ juror bias claim.

Third-Party Intimidation of Jurors. During trial, various

unknown individuals communicated in a threatening manner to a

few of the jurors as they walked from the courthouse to have

lunch. With Appellants’ consent, the district court questioned

each of the jurors individually on the record. Juror Jolly

stated that two people who had been observing the trial from the

gallery told her that “we, as jurors, if we found a conviction,

we better be ready to deal with the consequences . . . [a]nd

they know who we are.” J.A. 624. Jolly admitted being “very

scared.” J.A. 626. When Jolly told the other jurors what had

happened, she was told not to worry about it.

Juror Stover did not receive any outside communication

directly; he indicated that he had heard that one of the other

jurors had been told to “let them go easy” and that Jolly had

10
appeared to be very upset. Juror Watts and Juror Cooper

subsequently confirmed that while they were eating lunch, some

men dining in the restaurant turned around and told the jurors

to “go easy” on Blackwell and “leave him alone.” The district

court asked Stover, Watts and Cooper if they could still be

fair, and they all responded affirmatively.

Because the district court did not question Jolly

individually regarding whether she could still be fair,

Appellants asked the court bring her back and do so. The

district court declined, but indicated it would ask the jury as

a group, outside the presence of the spectators, “if they are

able to sit and hear the evidence and render a verdict based on

the evidence and the law that the court gives to them.” J.A.

645. Appellants did not object to the court’s proposed group

voir dire.

The district court then questioned the jury as a whole as

follows: “[C]an all the jurors and each of you individually

continue to sit and hear the case, hear the evidence, and render

your verdict according to what you hear from the witness stand

and the exhibits [admitted] into evidence and follow the law

that the court gives to you?” J.A. 651. There were affirmative

nods from the jurors, and no individual juror gave a contrary

indication. Appellants moved for a mistrial, arguing that the

jury had been “hopelessly tainted by the unfortunate

11
circumstances.” J.A. 653. The district court denied the

motion, concluding that the jury “has not been tainted to the

necessary extent to grant such a motion in terms of potential

prejudice to the defendants.” Id.

In their motion for a new trial based on the alleged jury

taint, Appellants relied on Allard’s affidavit, which indicated

that, in post-trial interviews, various jurors stated that Jolly

had been “very upset” by the threats, was “afraid for her life

and her children,” and did not want to be “involved.” J.A.

1220b. The district court, however, concluded that the

additional evidence submitted in support of Appellants’ motion

for a new trial was “not significantly different either in kind

or in scope than the information of improper juror contact that

the Court was presented with during the trial.” J.A. 1416.

Because the district court concluded that the evidence was not

“newly discovered,” it denied the motion as untimely and noted

that it did not have the discretion to disregard the time limits

imposed by Rule 33. See Fed. R. Crim. P. 33(b). On appeal,

Appellants contend that their motion for a new trial was timely

but that even if it was not, the district court should have

exercised its discretion to consider the motion. We disagree.

Under Rule 33(b), “[a]ny motion for a new trial grounded on

newly discovered evidence must be filed within 3 years after the

verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1).

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However, “[a]ny motion for a new trial grounded on any reason

other than newly discovered evidence must be filed within 14

days after the verdict or finding of guilty.” Fed. R. Crim. P.

33(b)(2). Because Appellants did not file the motion for a new

trial until several months after their verdicts, they were

required to present newly discovered evidence in support of

their motion.

“Newly discovered evidence” under Rule 33(b) means evidence

that, in fact, was discovered since the conclusion of the trial.

See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989);

United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987).

Nothing submitted by Appellants in support of the motion for a

new trial could be considered “newly discovered.” During the

court’s in-chambers voir dire of Juror Jolly, Jolly admitted

that she had been very frightened and intimidated by the

comments made to her. Other jurors confirmed then that Juror

Jolly was upset and crying. The district court and the parties

were aware of this information during trial, and the scant

additional details added by Appellants’ post-trial evidence did

not reveal anything new about the effect of the communications

to Jolly.

Furthermore, Appellants’ purported newly discovered

evidence is not the type of evidence that can support a Rule 33

motion. “[A] Rule 33 motion is designed to rectify factual

13
injustice, not to correct legal error.” United States v. Evans,

224 F.3d 670, 674 (7th Cir. 2000). Thus, “a Rule 33 motion

based upon ‘newly discovered evidence’ is limited to where the

newly discovered evidence relates to the elements of the crime

charged.” United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir.

1994); see United States v. Rollins, 607 F.3d 500, 504 (7th Cir.

2010) (explaining that “Rule 33 deals with contentions that

evidence discovered after trial shows that the accused is

innocent”). As we have stated, a new trial should be granted

under Rule 33 only if “the evidence [would] probably result in

acquittal at a new trial.” Chavis, 880 F.2d at 793.

Finally, we reject Appellants’ argument that the district

court committed error by refusing to consider an untimely motion

under Rule 33(b)(2). Although the district court mistakenly

indicated that an untimely motion under Rule 33 deprived it of

jurisdiction, see Rice v. Rivera, 617 F.3d 802, 809 (4th Cir.

2010) (per curiam), Appellants have failed to present any

circumstances suggesting that their filing was delayed by

“excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).

Accordingly, we affirm the district court’s denial of

Appellants’ motion for a new trial as untimely.

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 III.

A.

Appellants raise three other issues. First, Appellants

challenge the district court’s decision to admit under Federal

Rule of Evidence 1006 a chart offered by the government as a

summary of telephone record evidence showing that Parks and

Blackwell were connected to virtually every participant in

Eckles’ drug distribution operation. We apply an abuse-of-

discretion standard to a district court’s decision to admit a

summary chart under Rule 1006. See United States v. Foley, 598

F.2d 1323, 1338 (4th Cir. 1979).

The case agent explained that “the phone chart . . . was

compiled [using] . . . probably over a hundred thousand

telephone calls reviewed in this case” and that use of the chart

would assist him in explaining the telephone evidence to the

jury. J.A. 1022. Essentially, the chart consisted of a circle

of the names and numbers of other participants in the Eckles

organization, all connected with arrows pointing to Parks, whose

name was at the center of the circle. Blackwell’s name appeared

at the bottom center of the chart.

During its deliberations, the jury asked to see the chart.

Appellants objected, arguing that the chart was inaccurate and

that “the evidence is the testimony, not the chart[],” which was

“introduced merely as an aid to the jury.” J.A. 1186. The

15
district court overruled Appellants’ objection and sent the

chart to the jury room with a cautionary instruction reminding

the jury that “charts and summaries . . . are only as valid as

the underlying evidence tending to support them. . . . [I]t is

that evidence on which you must rely.” J.A. 1187.

Federal Rule of Evidence 1006 provides as follows:

The contents of voluminous writings, recordings,
or photographs which cannot conveniently be examined
in court may be presented in the form of a chart,
summary, or calculation. The originals, or
duplicates, shall be made available for examination or
copying, or both, by other parties at reasonable time
and place. The court may order that they be produced
in court.

Fed. R. Evid. 1006. Rule 1006, therefore, permits the admission

of “charts into evidence as a surrogate for underlying

voluminous records”; its purpose “is to reduce the volume of

written documents that are introduced into evidence by allowing

in evidence accurate derivatives from the voluminous documents.”

United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004).

Thus, under Rule 1006, the summary chart itself may come into

evidence provided it is “an accurate compilation of the

voluminous records sought to be summarized” and the underlying

records are “otherwise . . . admissible in evidence.” Id. The

underlying documents themselves, however, do not need to be

admitted for a Rule 1006 chart to come into evidence. See id.

at 272-73.

16
 We conclude that the district court acted well within its

discretion in admitting the phone records chart. Appellants do

not dispute that the underlying telephone records summarized in

the chart were too voluminous to be conveniently examined in

court, nor do they dispute that the telephone records were

admissible. Appellants argue only that the chart summarizing

the phone records was not sufficiently accurate as it listed

“only a fraction of the 100,000 call records entered into

evidence.” Brief of Appellants at 29. Similarly, Appellants

suggested at trial that the chart was misleading in its central

placement of Parks’ name. Rule 1006, however, “afford[s] a

process to test the accuracy of the chart’s summarization.”

Janati, 374 F.3d at 273. Although the underlying evidence need

not be introduced into evidence, Rule 1006 “require[s] that the

documents be made available to the opposing party for

examination and copying at a reasonable time and place” and

permits the district court to order “that the underlying

documents actually be brought to court.” Id. Appellants do not

suggest that they were deprived of the opportunity to examine

the underlying records or challenge the accuracy of the summary

in court. Accordingly, this argument fails. See United States

v. Strissel, 920 F.2d 1162, 1164 (4th Cir. 1990) (per curiam)

(rejecting argument that charts were based on inaccurate

information and were therefore inadmissible because “the

17
underlying evidence [was] admissible and available to the

opponent so that a proper cross-examination [could] be had”).

Appellants also challenge the admission of a chart

illustrating the organization of Eckles’ drug distribution

conspiracy. The case agent prepared the chart as an aid to the

jury based on trial testimony that had already been presented

from various members of the conspiracy and others. Even

assuming the district court committed error, and thereby abused

its discretion, see United States v. Delfino, 510 F.3d 468, 470

(4th Cir. 2007) (explaining that a district court abuses its

discretion when it “commits an error of law”), by admitting the

organizational chart into evidence and sending it back to the

jury room, we nevertheless conclude that any such error was

harmless. The evidence connecting both Parks and Blackwell to

the conspiracy was overwhelming; indeed, Appellants do not

challenge the sufficiency of the evidence on appeal. We agree

with the government that the prejudicial effect of the

organizational chart, if any, would have been minimal in light

of the substantial evidence introduced against Appellants. The

chart did not assign a role or title within the Eckles

organization to either Parks or Blackwell, nor did it purport to

summarize alleged drug transactions by Appellants or the alleged

amounts involved. Rather, the chart used lines with arrows to

18
show Appellants were acquainted with or were somehow connected

to the other conspiracy members.

Additionally, the district court’s instructions to the jury

further minimized any prejudicial effect, explaining that “[a]

chart and summary is not in itself evidence or proof of any

fact” and that the chart “created in preparation for this

litigation” merely offered “a party’s interpretation of the

facts in the case.” J.A. 1103. The court twice cautioned

jurors to “disregard [the] chart entirely” if they found the

chart to be inaccurate or untruthful, J.A. 1103, and to base

their decision on the underlying evidence. Accordingly, we

reject Appellants’ argument that the district court committed

reversible error in admitting the charts.

B.

Appellants next raise a Confrontation Clause challenge to

the testimony of Clifford Watkins. Watkins testified that he

was in the drug business with Leonard Clement and that Watkins

met Parks through Clement. Watkins, at the behest of the

police, recorded a conversation with Clement in which Clement

talked about getting money from “Bam”—who Watkins identified as

Parks—to purchase drugs. The district court admitted the audio

tape and Watkins’ related testimony under Federal Rule of

Evidence 801(d)(2)(E). Clement did not testify at trial.

19
 The Confrontation Clause of the Sixth Amendment bars

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In order to

determine if a statement was “testimonial” and therefore

excludable under the Confrontation Clause, we ask “whether a

reasonable person in the declarant’s position would have

expected his statements to be used at trial-that is, whether the

declarant would have expected or intended to ‘bear witness’

against another in a later proceeding.” United States v.

Udeozor, 515 F.3d 260, 268 (4th Cir. 2008); see United States v.

Jordan, 509 F.3d 191, 201 (4th Cir. 2007) (“[T]he critical

Crawford issue here is whether [the declarant], at the time she

made her statements . . . , reasonably believed these statements

would be later used at trial.”). We conclude that a reasonable

person in Clement’s position would not have expected his

comments to be used subsequently at trial given that he did not

know he was being recorded by his associate Watkins. See United

States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) (“A

statement unwittingly made to a confidential informant and

recorded by the government is not ‘testimonial’ for

Confrontation Clause purposes.”) Therefore, Clement’s

20
statements were not “testimonial” within the meaning of the

Confrontation Clause. *

C.

Finally, Appellant Parks argues that the district court

committed procedural error in calculating his Guidelines

sentencing range by relying on unsupported drug amounts. The

district court adopted the recommendation of the presentence

report (PSR) that 2.6 kilograms of crack was attributable to

Parks for a base offense level of 36.

In reviewing a sentence, we must first ensure that the

district court did not commit any “significant procedural

error,” such as failing to properly calculate the applicable

Guidelines range. Gall v. United States, 552 U.S. 38, 51

(2007). Reliance on “clearly erroneous facts” will constitute

“significant procedural error.” Id. However, procedural errors

committed at sentencing are subject to harmlessness review. See

United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010).

Procedural error is harmless if we can say with “fair assurance”

that the district court’s explicit consideration of the

*
To the extent that Appellants challenge the district
court’s admission of Watkins’ testimony under the co-conspirator
exception to the hearsay rule, see Fed. R. Evid. 801(d)(2)(E),
we disagree. There was ample evidence tying Clement to Parks,
including phone records, and Clement’s statements were clearly
in furtherance of the conspiracy. See United States v. Neal, 78
F.3d 901, 904-05 (4th Cir. 1996).

21
appropriate facts would not have affected the sentence imposed.

Id. (internal quotation marks omitted).

The record, including trial testimony from government

witnesses and the sentencing testimony of Agent Ramsey, provides

sufficient support for the court’s drug quantity finding.

Eckles testified that he supplied Parks with 4.5 ounces of

cocaine powder on 4 occasions; the evidence suggested Parks

cooked the 18 ounces into cocaine base. William Barber, Eckles

nephew, testified that he saw Parks twice receive crack from

Eckles -- 9 ounces one time and 18 ounces on the other. Young

testified that from 2002-2003, he delivered 18 ounces of crack

to Parks. Gaines testified that he gave Parks at least 2.5

ounces of cocaine powder on about 10 occasions, which was cooked

into cocaine base. And Randall Stovall, a distributor for

Eckles, testified that he gave Parks at least 4.5 to 9 ounces of

crack. Based on the testimony of Eckles and Barber attributing

45 ounces or 1275.75 grams of crack to Parks; the testimony of

Young attributing 18 ounces or 510.3 grams of crack; the

testimony of Gaines attributing 25 ounces or 708.75 grams of

crack; and the testimony of Stovall attributing 4 grams of

crack, the district court arrived at a total of 2608.2 grams, or

2.6 kilograms, of crack cocaine attributable to Parks. There

was additional evidence suggesting that the total amount found

by the district court was a conservative figure. Accordingly,

22
we conclude that the district court did not commit clear error

in finding the drug quantity attributable to Parks for

sentencing purposes.

IV.

For the foregoing reasons, the convictions and sentences of

Appellants are hereby

AFFIRMED.

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