UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4769
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DOUGHTY WILLIAMS, a/k/a Wookie, a/k/a Wonkie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cr-00162-BR-1)
Submitted: June 17, 2011 Decided: July 18, 2011
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In May 2009, a federal grand jury returned a five-
count indictment charging Michael Doughty Williams with
conspiracy to possess with intent to distribute fifty grams or
more of cocaine base (“crack”), in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006) (“Count One”); three counts of
distributing fifty grams or more of crack, in violation of 21
U.S.C. § 841(a)(1); and one count of distributing five grams or
more of crack, in violation of 21 U.S.C. § 841(a)(1). Williams
pleaded not guilty and was convicted, following a four-day jury
trial, of only Count One.
At sentencing, the district court granted Williams’
motion for a downward variance from the Guidelines range of life
imprisonment and imposed a 300-month sentence. Williams timely
noted this appeal, challenging his conviction and sentence. For
the reasons that follow, we reject Williams’ appellate arguments
and affirm.
Williams first challenges the district court’s
decision to grant the Government’s motion to disqualify his
retained attorney, Deborrah L. Newton, arguing this violated his
Sixth Amendment right to counsel of his choice. The Government
moved to disqualify Newton on the grounds that her prior
representation of a possible Government witness, Malcolm Dowdy,
who is Williams’ father, created a potential for a serious
2
conflict of interest: if Dowdy were to testify against
Williams, Newton would be in the position of cross-examining her
former client. According to the Government, Dowdy was willing
to cooperate in Williams’ prosecution in the hopes of receiving
a Fed. R. Crim. P. 35 reduction in his sentence.
Plainly, Williams has a Sixth Amendment right to
select his own (retained) counsel. See United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006). However, the right to
choose one’s counsel does not necessarily include the right to
choose counsel that may be operating under a possible conflict
of interest. Wheat v. United States, 486 U.S. 153, 159-60
(1988); see also Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir.
1990) (“[T]he Sixth Amendment right to counsel includes the
right to effective assistance free of conflicts of interest[.]”
(citing Wood v. Georgia, 450 U.S. 261, 271 (1981))). The
presumption in favor of a counsel of one’s choosing may be
overcome by a showing of an actual conflict of interest or the
serious potential for a conflict of interest. United States v.
Basham, 561 F.3d 302, 323 (4th Cir. 2009), cert. denied, 130 S.
Ct. 3353 (2010).
The district court has a duty to anticipate problems
with representation and to promptly act to remedy a potential
conflict. Id. When confronted with a potential conflict of
interest, the district court is obligated to independently
3
determine whether the continued representation by counsel
impedes the integrity of the proceedings and whether the
attorney should thus be disqualified. Wheat, 486 U.S. at 161-
64. For this purpose, the court “must have sufficiently broad
discretion to rule without fear that it is setting itself up for
reversal on appeal either on right-to-counsel grounds if it
disqualifies the defendant’s chosen lawyer, or on ineffective-
assistance grounds if it permits conflict-infected
representation of the defendant.” United States v. Williams, 81
F.3d 1321, 1324 (4th Cir. 1996) (citing Wheat, 486 U.S. at 160).
Williams first contends there was no potential for a
serious conflict of interest because Dowdy’s ability to earn a
Rule 35 reduction in his sentence was tied to his truthful
testimony, which would not infringe Newton’s ability to
vigorously cross-examine Dowdy. However, controlling Fourth
Circuit law clearly supports disqualification under these
circumstances. See id. at 1324-25 (affirming disqualification
of the defendant’s attorney because he would be required to
cross-examine a former client).
Williams next contends that the Government lacked a
good faith basis for the motion for disqualification because it
did not know, at the time the motion was filed, whether Dowdy
would actually testify against Williams. However, the district
court was fully apprised of Williams’ contention that the
4
Government’s inclusion of Dowdy as a potential witness was not
in good faith, but ultimately concluded that this did not trump
the potential for a serious conflict of interest should Dowdy be
called as a Government witness. This ruling is in accord with
Circuit precedent. See id.
Building on this contention, Williams asserts that,
because the Government’s motion to disqualify Newton was made in
bad faith, the continuance period following the disqualification
should not have been excluded from the speedy trial calculation.
Williams acknowledges that, “[i]f in fact the district court
judge was correct in disqualifying Ms. Newton, then the
continuance was necessary and reasonable.” (Appellant’s Br. at
24). For the reasons explained supra, the disqualification was
properly granted and thus we conclude that this claim fails.
Williams next argues the jury’s verdict was
insufficient to trigger the enhanced penalty provision of 21
U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2011), because the
jury did not make an explicit finding as to the threshold drug
quantity attributable to him. Williams further contends the
district court failed to properly instruct the jury of its
obligation, pursuant to United States v. Collins, 415 F.3d 304
(4th Cir. 2005), to make a factual finding regarding the
statutory threshold quantity of crack attributable to Williams.
5
Williams concedes that this claim is reviewed only for
plain error because he did not raise it below. See United
States v. Foster, 507 F.3d 233, 249 (4th Cir. 2007). To
establish plain error, Williams must demonstrate that (1) there
was error; (2) the error was plain; and (3) the error affected
his substantial rights. United States v. Olano, 507 U.S. 725,
732 (1993).
Williams’ reliance on Collins is simply misplaced. As
this court recognized in Collins, § 841(b) establishes specific
threshold quantities of narcotics, which correspond to
increasing penalties as the quantity of drugs involved
increases. Collins, 415 F.3d at 312. Following Apprendi, 1 it is
the jury’s responsibility to determine the specific, statutory
threshold drug quantity attributable to any particular member of
a drug distribution conspiracy. Id. at 313-14. It is then the
sentencing court’s obligation to find, within the relevant
statutory range, the individual drug quantity reasonably
foreseeable to the individual member of the conspiracy. See
United States v. Brooks, 524 F.3d 549, 560-562 (4th Cir. 2008).
This is precisely what occurred here. Williams was
charged, specifically, with conspiracy to possess with intent to
distribute fifty grams or more of crack. Because Williams was
1
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
6
the sole defendant charged in Count One, there were no co-
conspirators for the jury to consider. In charging the jury,
the district court identified that drug quantity was an element
of Count One. Moreover, the jury’s verdict form specifically
referenced Count One of the indictment, which included the
statutory quantity of fifty grams or more of crack.
Accordingly, we discern no error in the jury verdict form or in
the court’s instructions regarding the threshold drug quantity
and conclude that the jury’s guilty verdict on Count One
included the threshold drug quantity determination necessary to
trigger the enhanced penalty provision of § 841(b)(1)(B).
Finally, Williams attacks his sentence, arguing there
was insufficient evidence to support the application of the two-
level enhancement for possession of a firearm in connection with
drug activities. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(b)(1) (2009). Pursuant to this guideline, the
defendant’s offense level is increased by two levels if the
defendant possessed a firearm during a drug offense. USSG
§ 2D1.1(b)(1). The enhancement is proper when “the weapon was
possessed in connection with drug activity that was part of the
same course of conduct or common scheme as the offense of
conviction.” United States v. Manigan, 592 F.3d 621, 628-29
(4th Cir. 2010) (internal quotation marks omitted).
7
The Government must prove the facts needed to support
a sentencing enhancement by a preponderance of the evidence.
United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006). In
determining whether a sentencing enhancement applies, the
sentencing court may consider hearsay, provided that the
information bears “sufficient indicia of reliability to support
its accuracy.” United States v. Wilkinson, 590 F.3d 259, 269
(4th Cir. 2010). Whether the district court properly applied
the enhancement under USSG § 2D1.1(b)(1) is reviewed for clear
error. Manigan, 592 F.3d at 626.
At Williams’ sentencing hearing, several police
officers testified as to the disputed sentencing issues. 2 Two
officers testified that, in the course of their investigations,
three cooperating witnesses reported having observed Williams
with or near firearms during various drug activities that
occurred within the time frame charged in Count One. Williams
asserts that this hearsay evidence was insufficient to satisfy
the Government’s burden of proof. We disagree. It is well-
established that “there is no bar to the use of hearsay at
sentencing . . . [and a] trial court may properly consider
2
Although Williams also challenged the drug quantity
attributed to him and the three-level role enhancement for being
a manager or supervisor, he does not raise either of these
issues on appeal.
8
uncorroborated hearsay evidence that the defendant has had an
opportunity to rebut or explain.” United States v. Alvarado
Perez, 609 F.3d 609, 618 n.4 (4th Cir. 2010) (internal quotation
marks omitted). Accordingly, we hold the district court
properly applied the two-level enhancement.
For these reasons, we affirm the district court’s
judgment. 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
9