UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE LAMPKIN, a/k/a Alvin Smiley,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:11-cr-00003-JFM-23)
Submitted: March 20, 2014 Decided: March 26, 2014
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc Gregory Hall, LAW OFFICE OF MARC G. HALL, P.C., Rockville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Ayn B. Ducao, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Wayne Lampkin was convicted of
conspiracy to possess with intent to distribute at least one
kilogram of heroin. See 21 U.S.C. § 846 (2012). The district
court vacated that part of the jury’s finding that Lampkin was
responsible for one kilogram of heroin and determined that it
was reasonably foreseeable to Lampkin that the conspiracy
involved at least 100 grams but less than 400 grams of heroin.
Lampkin was originally sentenced to 120 months’ imprisonment,
the statutory minimum sentence after the Government filed notice
under 21 U.S.C. § 851 (2012) that it was going to seek enhanced
penalties based on a prior felony conviction. Lampkin
successfully had the predicate conviction vacated by state
court. His appeal was sent back to the district court for
resentencing due to the fact that he no longer had a predicate
conviction that made him eligible for the increased statutory
sentence. On remand, the court sentenced Lampkin to sixty
months’ imprisonment and four years’ supervised release.
Lampkin appeals, raising several issues. We affirm.
Lampkin argues that the district court erred
permitting evidence of a prior drug conviction. We review a
district court’s determination of the admissibility of evidence
under Rule 404(b) for abuse of discretion. United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). An abuse of
2
discretion occurs only when “the trial court acted arbitrarily
or irrationally in admitting evidence.” United States v.
Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation
marks omitted). We agree with the Government that there is no
record Lampkin ever objected to the Government’s motion to admit
the evidence. Thus, review is for plain error. To establish
plain error, a defendant has the burden of showing: (1) that an
error was made; (2) that the error was plain; and (3) that the
error affected his substantial rights. United States v.
Carthorne, 726 F.3d 503, 510 (4th Cir. 2013), cert. denied, __
U.S. __, 2014 WL 684378 (2014).
After reviewing the record, we conclude that there was
no plain error. The evidence was relevant toward the issue of
Lampkin’s knowledge and intent. We also conclude that the
probative value of the evidence was not outweighed by
substantial prejudice.
Lampkin also argues that there were so many errors
with the transcripts of the monitored telephone calls that the
jury should not have been able to use the transcripts while
listening to the telephone calls. A district court’s decision
to allow the jury to use transcripts while listening to tape
recorded telephone calls is reviewed for abuse of discretion.
United States v. Brandon, 363 F.3d 341, 343-44 (4th Cir. 2004).
We have reviewed the record and conclude there was no abuse of
3
discretion. The district court gave a limiting instruction to
the jury. We also note that there was support for the accuracy
of the transcripts. See United States v. Collazo, 732 F.2d
1200, 1203-04 (4th Cir. 1984).
Lampkin also argues that the district court erred
allowing a law enforcement investigator to give expert testimony
regarding the meaning of certain coded language used by the
defendant and others that were captured on the recorded
telephone calls. We review a district court’s evidentiary
decisions for abuse of discretion. United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010). Evidentiary rulings are
subject to harmless error review, and, in order to find a
district court’s error harmless, we “need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Id.
After reviewing the record, including the expert
testimony, we conclude that the district court did not abuse its
discretion.
Also, Lampkin claims that the evidence was
insufficient to establish that he knowing and voluntarily joined
a drug conspiracy. We review de novo the sufficiency of the
evidence supporting a conviction. United States v. McLean, 715
F.3d 129, 137 (4th Cir. 2013). In assessing evidentiary
4
sufficiency, we must determine whether, viewing the evidence in
the light most favorable to the government and accepting the
factfinder’s determinations of credibility, the verdict is
supported by substantial evidence — that is, “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. King, 628 F.3d 693, 700
(4th Cir. 2011) (internal quotation marks omitted). “A
defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” United States v.
Engle, 676 F.3d 405, 419 (4th Cir.), cert. denied, 133 S. Ct.
179 (2012) (internal quotation marks and citations omitted).
To prove a conspiracy under 21 U.S.C. § 846, the
Government must establish: “(1) an agreement between two or
more persons to engage in conduct that violates a federal drug
law, (2) the defendant’s knowledge of the conspiracy, and
(3) the defendant’s voluntary participation in the conspiracy.”
United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir.
2001). The underlying drug law at issue, 21 U.S.C. § 841(a)(1),
makes it unlawful to “possess with intent to manufacture,
distribute, or dispense a controlled substance.”
We conclude that there was sufficient evidence to
support the conviction. The record shows that Lampkin bought
5
heroin from a dealer, that he used coded language and vague
conversation to arrange for drug transactions, that he attempted
to arrange for at least one other to purchase drugs and that he
knew that others were involved and that such conduct was
illegal.
Lampkin also takes issue with the jury instruction.
He claims that the district court erred by denying his request
for a buyer-seller instruction. “The decision to give or not to
give a jury instruction is reviewed for an abuse of discretion.”
United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006)
(internal quotation marks omitted). Furthermore, we “review a
jury instruction to determine whether, taken as a whole, the
instruction fairly states the controlling law.” Id. (internal
quotation marks omitted). We conclude that there was no error
because there was evidence that the relationship between Lampkin
and his supplier went beyond a mere drug transaction. United
States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).
Regarding the jury instruction, Lampkin argues that
the district court did not instruct the jury that in order to
find him guilty, it must be found beyond a reasonable doubt that
he had knowledge of the conspiracy’s existence. Lampkin did not
object and review is for plain error. United States v.
Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010) (to preserve
issue, defendant must object prior to jury deliberations).
6
We have reviewed the jury instructions in their
entirety and conclude that the district court sufficiently
instructed the jury that it had to find beyond a reasonable
doubt that Lampkin participated in the conspiracy with knowledge
of its unlawful purpose and of at least some of its objectives.
Thus, there was no plain error.
Lampkin raises two issues regarding sentencing. He
contends that the district court erred concluding that it was
reasonably foreseeable to him that the conspiracy involved at
least 100 grams of heroin but less than 400 grams. He also
claims that the court erred increasing his offense level by one
under USSG § 2D1.2 because part of the conspiracy occurred
within 1000 feet of a school.
“[T]he government must prove the drug quantity
attributable to a particular defendant by a preponderance of the
evidence.” United States v. Bell, 667 F.3d 431, 441 (4th Cir.
2011). In terms specific to a § 846 conspiracy conviction, the
drug quantity attributable to a defendant is the quantity
involved in the conspiracy that was reasonably foreseeable to
the defendant. See USSG § 1B1.3(a)(1); United States v.
Randall, 171 F.3d 195, 210 (4th Cir. 1999). We review the
district court’s calculation of the quantity of drugs
attributable to a defendant for sentencing purposes for clear
error. United States v. Crawford, 734 F.3d 339, 342 (4th Cir.
7
2013), cert. denied, __ U.S. __, 2014 WL 414225 (2014); see also
United States v. Perez, 609 F.3d 609, 612 (4th Cir. 2010).
Under this standard, we will reverse the district court’s
finding only if we are “left with the definite and firm
conviction that a mistake has been committed.” Crawford, 734
F.3d at 342 (internal quotation marks and citation omitted).
We conclude that the Government showed by a
preponderance of the evidence that it was reasonably foreseeable
to Lampkin that the conspiracy involved 100 grams or more of
heroin.
Under USSG § 2D1.2(a)(2), if a person is convicted of
21 U.S.C. § 860, one level is added to the base offense level
determined under USSG § 2D1.1. The guideline “applies only in a
case in which the defendant is convicted of a statutory
violation of drug trafficking in a protected location . . .”
Id., (cmt. n.1). We note that the district court did not
instruct the jury on the elements of § 860. Section 860
requires enhanced penalties for anyone who violates 21 U.S.C.
§ 841 and possesses with intent to distribute narcotics within
1000 feet of a school. The defendant is subjected to twice the
maximum sentence authorized by § 841(b) and twice any term of
supervised release. The statute also authorizes a minimum
sentence of one year unless a greater minimum sentence is
authorized by § 841(b). However, the one level enhancement does
8
not apply if the jury was never asked to find whether beyond a
reasonable doubt, part of the conspiracy occurred within 1000
feet of a school. See United States v. Martinez, 430 F.3d 317,
340-41 (6th Cir. 2005). Section 860 is a distinct offense that
needs to be submitted to a jury. See United States v. Parker,
30 F.3d 542, 553 (4th Cir. 1994); United States v. Osborne, 673
F.3d 508, 511-13 (6th Cir.) (collecting cases), cert. denied,
133 S. Ct. 205 (2012). There is no indication that Lampkin
objected to the court’s failure to instruct the jury on the
elements of § 860. Thus, review is for plain error. See United
States v. Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010).
Even if there was error, we find that Lampkin’s
substantial rights were not affected because at resentencing he
received the statutory minimum five year sentence, which was
below the Guidelines and the agreed upon minimum statutory
sentence.
Accordingly, we affirm the conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
9