PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4537
JOHN CARRINGTON,
Defendant-Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 99-10250)
Argued: June 6, 2002
Decided: August 22, 2002
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge King joined. Judge Williams wrote a separate opinion
concurring in part and concurring in the judgment.
COUNSEL
ARGUED: Krysia Carmel Nelson, NELSON & KORTH, P.L.C.,
Charlottesville, Virginia, for Appellant. Ray B. Fitzgerald, Jr., Assis-
tant United States Attorney, Charlottesville, Virginia, for Appellee.
ON BRIEF: John L. Brownlee, United States Attorney, Charlottes-
ville, Virginia, for Appellee.
2 UNITED STATES v. CARRINGTON
OPINION
NIEMEYER, Circuit Judge:
Following his conviction for conspiracy to traffic in an unspecified
amount of crack cocaine, in violation of 21 U.S.C. § 841(a), John
Carrington was sentenced to 384 months imprisonment. We affirmed
that conviction and sentence in April 2000. On Carrington’s petition
for a writ of certiorari and after the Supreme Court handed down
Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court vacated our
judgment in this case and remanded it for consideration in light of
Apprendi. Carrington v. United States, 531 U.S. 1062 (2001).
Although we now conclude that it was plain error to have sen-
tenced Carrington to 384 months imprisonment on an indictment that
did not specify the drug quantity involved and absent any jury finding
of drug quantity, we decline to note and correct the error because the
evidence of the drug quantity necessary to justify the sentence
imposed was overwhelming and essentially uncontroverted, and to
reduce Carrington’s sentence because of a technical error never
objected to at trial would threaten the fairness, integrity, and public
reputation of the judicial proceedings. Accordingly, we affirm.
I
John Carrington, along with ten co-conspirators, was charged in
one count of a seven-count indictment with conspiracy "to possess
with intent to distribute and to distribute a mixture or substance con-
taining cocaine base [or] ‘crack,’ . . . in violation of [21 U.S.C.
§§ 841(a)(1) and 846]." In describing six overt acts taken in further-
ance of the conspiracy, the indictment alleged, among other things,
that Antonio Smith, the ringleader of the conspiracy, recruited mem-
bers of the conspiracy to go to New York to pick up crack cocaine
for transport to the Charlottesville, Virginia area and that "each ship-
ment [between New York and Charlottesville] was between one
quarter-kilogram and one kilogram of crack cocaine." The indictment
further alleged that "[i]t was part of the conspiracy that, when some
of [Antonio Smith’s] supply of crack cocaine and currency were
stolen in a burglary of his residence, [Smith] recruited a party of his
conspirators to track down and kill one of the suspected burglars,
UNITED STATES v. CARRINGTON 3
Eugene Siler." In describing these overt acts, the indictment refers to
Smith and "the conspirators" or Smith and "a party of conspirators,"
without naming the specific conspirators involved in each overt act.
At trial, the government presented evidence against Carrington to
prove his involvement in two of the six overt acts charged in the
indictment — one or two of the trips to New York to obtain crack
cocaine and the hunting down of Eugene Siler for allegedly burglariz-
ing Smith’s apartment and stealing crack cocaine and currency.
With respect to the New York trips, the government offered the tes-
timony of Shawn Mason, who testified that in 1997, Carrington went
on one of the trips to New York. Carrington was not, however, aware
of the group’s destination when the trip began, and when he found out
that the group was going to New York, he became upset and stated
that he did not want to go. Nevertheless, Carrington remained with
the group because they were too far into the drive to turn around and
take him back to Charlottesville. Once they arrived in New York, the
group acquired a hotel room for four hours. During that time, Mason
and Smith left to acquire crack cocaine, while Carrington and a
woman named Tameka remained in the room. When Mason and
Smith returned with the drugs, they proceeded to package them inside
a stereo speaker while Carrington stood by the door, not focusing his
attention on what Mason and Smith were doing. According to Mason,
however, Carrington could readily have seen what was going on if he
had looked over at them. In addition to Mason’s testimony, the gov-
ernment offered the testimony of Stanley Fitzgerald, a participant in
the drug ring, who testified that Carrington told him that he took two
trips to New York with Smith to purchase crack cocaine.
With respect to Carrington’s participation in hunting down Eugene
Siler for his theft of crack cocaine and money that belonged to Smith,
the government offered the testimony of Roger Price, a Charlottes-
ville drug dealer. According to Price, on November 15, 1997, Car-
rington joined a "posse" of men that Smith formed after learning that
Siler and two others had broken into his home and stolen two ounces
of crack cocaine and $2,000. Price testified that Carrington remained
with Smith and his armed posse as they searched for and intimidated
these men by yelling and displaying guns. Carrington himself admit-
ted, in grand jury testimony, to being with Smith that night and look-
4 UNITED STATES v. CARRINGTON
ing for the burglars. The evidence also showed that Siler was
murdered during the early morning hours of the next day and that
Carrington participated in the murder. Specifically, William Bailey,
who met Carrington in a holding cell in Charlottesville, testified that
Carrington told him that he shot a man three times in the face at a
graveyard, and a detective who investigated Siler’s death testified that
the facts surrounding Siler’s death matched the facts described in Car-
rington’s admission to Bailey.
Carrington’s defense attempted to establish that Carrington was not
a part of the conspiracy and that any involvement he may have had
with the members of the conspiracy was too minimal to show that he
knowingly involved himself in the conspiracy. Nonetheless, the jury
returned a verdict finding Carrington guilty of the charged conspiracy.
At sentencing, Carrington objected to the Presentence Report’s
attribution to him of 250 grams of crack cocaine, the minimum
amount that the evidence showed was involved on each of the trips
to New York. Carrington argued that this crack cocaine should not be
attributed to him because he was not a knowing and willing partici-
pant in any trip to New York, but the district court overruled the
objection. Carrington did not object to the two ounces (roughly 57
grams) of crack cocaine attributable to him through his involvement
in hunting down Siler for stealing the cocaine. Because the minimum
amount of crack cocaine attributed to Carrington exceeded 50 grams
and Carrington qualified as a career offender under the Sentencing
Guidelines, the applicable sentencing range was 360 months to life
(based on an offense level of 37 and a criminal history category of
VI). The district court sentenced Carrington to 384 months imprison-
ment.
Carrington appealed his judgment of conviction to this court, argu-
ing, among other things, that the government’s evidence was insuffi-
cient to prove his participation in the conspiracy because there was no
proof of an agreement between Carrington and any other member of
the conspiracy. He also argued that the district court erred by permit-
ting the government to refer to the murder of Eugene Siler and by
allowing the introduction of Carrington’s grand jury testimony as part
of the government’s case in chief. Finally, Carrington challenged his
sentence, arguing that the district court erred in connecting him to the
UNITED STATES v. CARRINGTON 5
250 grams of crack cocaine purchased on the trip to New York. In an
unpublished per curiam opinion, dated April 21, 2000, we affirmed
Carrington’s conviction and sentence. United States v. Martin, Nos.
99-4471, 99-4537, 2000 WL 429715 (4th Cir. Apr. 21, 2000).
After Carrington filed a petition for a writ of certiorari in the
Supreme Court, the Court decided Apprendi v. New Jersey, 530 U.S.
466 (June 26, 2000). Based on its Apprendi decision, the Court then
vacated our judgment in this case and remanded the case for further
consideration in light of Apprendi. Carrington v. United States, 531
U.S. 1062 (2001). In our further consideration of the case on remand,
we ordered supplemental briefing and oral argument.
II
Carrington contends that "the facts in the indictment and found by
the jury supported a maximum penalty of 20 years imprisonment"
under 21 U.S.C. § 841(b)(1)(C), not the 32 years to which he was sen-
tenced, and therefore that we "must notice and correct this error" and
remand the case for resentencing "for a sentence not to exceed 20
years imprisonment." More expansively, he notes that neither the
indictment "nor any other document provided [him] any pretrial
notice that the government sought to hold him accountable for any
particular drug quantity." He states that the overt acts charged in the
indictment, several of which refer to drug quantities, do not mention
him by name. In short, he argues that "a ‘fair construction’ of the
terms of the indictment, even when coupled with the overt acts
described therein, did not present the ‘necessary facts’ to state an
aggravated drug offense as against Appellant." Carrington also notes
that he disputed any finding "that he should be held accountable for
any quantity of crack" and that "[h]ad the jury been given the chance,
it may not have made the necessary finding to support [his] 32 year
sentence." But, he asserts, the jury "neither considered the question of
drug quantity nor made any finding beyond a reasonable doubt that
Appellant conspired to distribute any specific quantity of crack," and
in the absence of a quantity finding by the jury, the maximum to
which he could be sentenced under 21 U.S.C. § 841(b)(1)(C) was 20
years imprisonment.
Carrington did not object to these errors at trial and therefore his
claims of error were forfeited. Similarly, he did not assert these
6 UNITED STATES v. CARRINGTON
claims of error to us during his first appeal. The Supreme Court’s
decision in Apprendi v. New Jersey was decided a few months after
we decided Carrington’s first appeal, and the Supreme Court
remanded this case for consideration in light of its decision in that
case. Accordingly, we now review Carrington’s forfeited claims of
error under the plain-error test established by Federal Rule of Crimi-
nal Procedure 52(b). The articulation of the test for plain-error review
is well known:
"Under that test, before an appellate court can correct an
error not raised at trial, there must be (1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affect[s] substantial rights.’" Johnson
v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 137
L.Ed.2d 718 (1997) (quoting [United States v.] Olano, [507
U.S. 725,] 732, 113 S. Ct. 1770 [(1993)]). "If all three con-
ditions are met, an appellate court may then exercise its dis-
cretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings." 520 U.S., at 467, 117 S. Ct. 1544
(internal quotation marks omitted) (quoting Olano, supra, at
732, 113 S. Ct. 1770).
United States v. Cotton, 122 S. Ct. 1781, 1785 (2002).
Under this plain error test, Carrington asks us to review two trial
errors: (1) that the indictment failed to charge the elements of an
aggravated drug offense, having omitted allegations of specific drug
quantities, and (2) that the quantity of drugs supporting his 384-month
sentence in this case was decided by the judge during sentencing, not
by the jury during trial. We address these issues in turn.
A
The second superseding indictment charged Carrington with con-
spiracy "to possess with intent to distribute and to distribute a mixture
or substance containing cocaine base," in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Of the six alleged overt acts, the government
offered evidence against Carrington with respect to two. The first
overt act on which evidence was offered against Carrington described
trips to New York taken by Antonio Smith and his "confederates,"
UNITED STATES v. CARRINGTON 7
without naming Carrington or any other confederate or conspirator, to
procure crack cocaine to bring back to Charlottesville, Virginia, and
specifically stated that "each shipment was between one quarter-
kilogram and one kilogram of crack cocaine." The other overt act on
which evidence was offered against Carrington described how Anto-
nio Smith and "a party of his conspirators" tracked down and killed
a suspected burglar, Eugene Siler, who had stolen two ounces of
crack cocaine and money from Smith. Again Carrington was not spe-
cifically named as a member of the "party of [Smith’s] conspirators."
Carrington argues that he was not charged with conspiracy to dis-
tribute a specific quantity of cocaine because not all of the overt acts
referenced the distribution of a particular amount of crack cocaine and
the jury could have found a violation without finding that all overt
acts were committed. Also, the charging language itself alleges a con-
spiracy to possess with intent to distribute and to distribute an unspec-
ified amount of cocaine base.
We agree with Carrington that the government’s failure, when
charging an aggravated drug offense under 21 U.S.C. § 841, to allege
drug quantity was an error and that the error was plain. See Cotton,
122 U.S. at 1783 (noting that drug quantity must be charged in the
indictment); id. at 1785-86 (deciding the plain error question on the
assumption that the failure to allege drug quantity was plain error);
see also United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.
2001) (holding that "Apprendi dictates that in order to authorize the
imposition of a sentence exceeding the maximum allowable without
a jury finding of a specific threshold drug quantity, the specific
threshold quantity must be treated as an element of an aggregated
drug trafficking offense, i.e., charged in the indictment and proved to
the jury beyond a reasonable doubt" (internal footnote omitted)).
But we conclude that in this case, the error of failing to allege drug
quantity in charging an aggravated drug offense did not affect Car-
rington’s substantial rights. Through the indictment, Carrington had
the right (1) to be notified of the charges against him by a description
of each element of the offense, and (2) to be provided an accurate
record of the charges against him so that he could plead an acquittal
or conviction on the charges as a bar to a subsequent effort to prose-
cute him for the same offense. Russell v. United States, 369 U.S. 749,
8 UNITED STATES v. CARRINGTON
763-64 (1962); United States v. Wicks, 187 F.3d 426, 427 (4th Cir.
1999); United States v. Smith, 44 F.3d 1259, 1263-64 (4th Cir. 1995).
In this case, even though the indictment erroneously failed, when
purporting to charge an aggravated drug offense, to allege a specific
drug quantity, charging simply that Carrington conspired to possess
with intent to distribute and to distribute an unspecified amount of
crack cocaine, the description of the overt acts taken in furtherance
of the conspiracy did specify drug quantity. In particular, the indict-
ment described as an overt act the conspirators’ trips to New York to
purchase crack cocaine and alleged that "each shipment was between
one quarter-kilogram and one kilogram of crack cocaine." Even
though the indictment described six overt acts carried out in further-
ance of the conspiracy, and the government chose to offer evidence
of only two overt acts against Carrington, he was put on notice of all
six. More importantly, he was put on notice that over 250 grams of
crack cocaine were involved, subjecting him to the risk of conviction
for an aggravated drug offense. Carrington thus was given legally suf-
ficient notice of the aggravated drug charges that he faced, including
the level of drug quantities for which he might be found responsible
as a co-conspirator. Unlike the indictment considered by the Supreme
Court in Cotton, in which no drug quantity was alleged anywhere in
the indictment, see 122 S. Ct. at 1786, the indictment here, while not
satisfying the requirement of alleging drug quantity in the charging
language, still fulfilled the notice purpose of an indictment through its
description of the overt acts.
The indictment in this case also provided Carrington with a record
of the charges with sufficient detail that an acquittal or conviction on
it could effectively be pleaded as a bar to a subsequent effort to prose-
cute him for the same offense. Not only did it provide a specific time
frame of the conspiracy, it also alleged specific sets of events in fur-
therance of it. This indictment, therefore, protects Carrington from
any future attempts to prosecute him for the same conduct, regardless
of drug quantity.
Accordingly, the protections provided by an indictment were not
compromised by this indictment’s failure when charging an aggra-
vated drug offense to include a specific drug amount in the charging
language. Whether, however, this failure to charge a drug quantity
UNITED STATES v. CARRINGTON 9
could lead to an error relating to the issues presented to the jury is
another question that we now address.
B
For his second claim of error, Carrington contends that he should
not have been sentenced for an aggravated drug crime when the jury
did not make a finding as to drug quantity. The basis for his claim is
the Supreme Court’s decision in Apprendi. In that case, the Court held
that "[o]ther than the fact of a prior conviction, 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."
530 U.S. at 490. Thus, if a defendant is to be sentenced under the
aggravated penalties of 21 U.S.C. § 841(b) for trafficking in specified
quantities of drugs, the drug quantity, in addition to being alleged in
the indictment, must be submitted to the jury and proved beyond a
reasonable doubt. Id. at 491; see also Cotton, 122 S. Ct. at 1783
(applying Apprendi in a drug conspiracy case); Promise, 255 F.3d at
156-57 (requiring "specific threshold drug quantities [to] be treated as
elements of aggravated drug trafficking offenses, rather than as mere
sentencing factors").
In Cotton, a drug-trafficking case in which the defendants asserted
an Apprendi error for the first time on appeal, the Supreme Court
applied the plain-error review test and concluded that the error of not
submitting drug quantity to the jury did not seriously affect the "fair-
ness, integrity, or public reputation of judicial proceedings" because
"[t]he evidence that the conspiracy involved at least 50 grams of
cocaine base was ‘overwhelming’ and ‘essentially uncontroverted.’"
122 S. Ct. at 1786; accord United States v. Strickland, 245 F.3d 368,
381 (4th Cir. 2001) (declining to correct an Apprendi error on plain
error review because "the evidence establishing the threshold amounts
of cocaine and crack cocaine for life imprisonment sentences was not
only overwhelming, but also uncontested"). Based on the extensive
evidence regarding drug quantity presented at trial, the Cotton Court
concluded that "[s]urely the grand jury, having found that the conspir-
acy existed, would have also found that the conspiracy involved at
least 50 grams of cocaine base." 122 S. Ct. at 1786. Indeed, the Court
observed that "[t]he real threat . . . to the ‘fairness, integrity, and pub-
lic reputation of judicial proceedings’ would be if respondents,
10 UNITED STATES v. CARRINGTON
despite the overwhelming and uncontroverted evidence that they were
involved in a vast drug conspiracy, were to receive a sentence pre-
scribed for those committing less substantial drug offenses because of
an error that was never objected to at trial." Id. at 1787.
Similarly, in this case, we must determine whether the evidence
with respect to drug quantity was so "overwhelming" and "essentially
uncontroverted" that the ideals of the justice system would be
advanced by exercising our discretion not to note and correct the
error, or whether the quality of the evidence is such that we cannot
be confident that the grand jury or petit jury would have made the
necessary finding with respect to drug quantity if they had been asked
to do so. To reach this question, we may assume, as did the Court in
Cotton, that plain error has been demonstrated and that it has affected
Carrington’s substantial rights, thus directing our focus on the fourth
prong of plain-error review, whether the error "seriously affected the
fairness, integrity, or public reputation of judicial proceedings." Cot-
ton, 122 S. Ct. at 1786 (internal quotation marks, modifications, and
citation omitted). It is this question to which we now turn.
We begin with the fact that the jury convicted Carrington of con-
spiracy to traffic in crack cocaine, and, therefore, he became liable not
only for his individual conduct in furtherance of the conspiracy but
also for the conduct of co-conspirators that could be reasonably fore-
seen as a necessary part of the conspiracy or a natural consequence
of it. See Pinkerton v. United States, 328 U.S. 640, 647 (1946). "The
Pinkerton doctrine imposes vicarious liability on a coconspirator for
the substantive offenses committed by other members of the conspir-
acy when the offenses are during and in furtherance of the conspir-
acy." United States v. Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996).
On his first appeal, Carrington argued that he was innocent of the
crime of conspiracy because he did not enter into an agreement with
any member of the conspiracy or knowingly or voluntarily participate
in the conspiracy. After reviewing the evidence, we concluded that
the evidence was sufficient to permit the jury to find that Carrington
knew about the conspiracy and knowingly and voluntarily partici-
pated in it. United States v. Martin, No. 99-4471, 2000 WL 429715,
at *2 (4th Cir. Apr. 21, 2000). Even though the Supreme Court
vacated our judgment and remanded the case, it did so "for further
UNITED STATES v. CARRINGTON 11
consideration in light of Apprendi." Carrington, 531 U.S. at 1062.
Therefore, we will not revisit our earlier conclusion that Carrington
was properly found guilty of the conspiracy as charged.
Because the jury found Carrington guilty of conspiracy, it also
found him guilty of his co-conspirators’ acts performed during and in
furtherance of the conspiracy so long as they could be foreseen or
were a natural consequence of the conspiracy. See Pinkerton, 328
U.S. at 647; Aramony, 88 F.3d at 1379. Thus, in determining whether
the evidence of drug quantity was "overwhelming," all evidence satis-
fying the Pinkerton criteria may be imputed to Carrington. But in this
case, we need not look so broadly because the evidence presented to
the jury with respect to Carrington’s own participation in the conspir-
acy overwhelmingly demonstrated that the conspiracy involved the
distribution of more than 50 grams of crack cocaine.
The government proved two events involving Carrington, each of
which involved quantities of crack cocaine in excess of 50 grams.
First, it showed that Carrington participated in a trip to New York to
purchase drugs and that on each trip to New York the conspirators
purchased "between one quarter-kilogram and one kilogram of crack
cocaine." There was no evidence at trial suggesting that the quantities
of one quarter-kilogram to one kilogram of crack cocaine were erro-
neous or overstated. Thus, the evidence strongly showed that based
on one trip alone, the conspiracy involved at least five times the
amount necessary to support a conviction for an aggravated drug
offense.
In addition to this evidence, the government presented evidence
showing that Carrington joined a group of people who hunted down
and allegedly killed Eugene Siler because he broke into Antonio
Smith’s home and stole two ounces (roughly 57 grams) of crack
cocaine and $2,000. With respect to this incident, Carrington admits
that he was with Smith that night and participated in looking for the
burglars. Again, there was no evidence to suggest that the 57-gram
amount was erroneous or overstated. In fact, instead of controverting
the amounts of cocaine involved in the conspiracy, Carrington’s
defense at trial focused on showing that he did not participate in the
conspiratorial events.
12 UNITED STATES v. CARRINGTON
In short, at the trial before the jury the evidence of drug quantity
attributable to the conspiracy was both overwhelming and essentially
uncontroverted. Indeed, since the evidence of Carrington’s involve-
ment in the conspiracy related only to the trip to New York and the
hunt for Siler, in order to convict Carrington, the jury must in fact
have found that Carrington participated in at least one of these events
and therefore had to find that he was involved personally in acts relat-
ing to over 50 grams of crack cocaine.
Of course, at the time of trial, the Apprendi decision had not yet
been decided, and we can assume that Carrington would properly
have then reserved any contest over drug quantities for the sentencing
phase, as was the universal practice. And indeed, Carrington did nom-
inally contest drug quantity at sentencing, stating that he was object-
ing to the quantity of drugs imputed to him in the Presentence Report.
But Carrington’s objection focused only on the fact of imputation, not
the quantity. He argued that the evidence did not establish that he was
a member of the conspiracy, that he made the trip to New York in fur-
therance of the conspiracy, that he participated in the trip willingly,
and that he did not, by his conduct during the trip, withdraw from the
conspiracy. But none of these arguments relates to drug quantity.
Moreover, Carrington never contested the amount attributable to him
with respect to the hunt for Siler. In sum, while Carrington made the
question of conspiratorial participation a controverted issue — one
that the jury resolved against him — he never controverted drug
quantity, either at trial or during sentencing.
Thus, we conclude that the Apprendi error claimed by Carrington
"did not seriously affect the fairness, integrity, or public reputation of
the judicial proceedings" because the evidence that the conspiracy —
indeed Carrington’s personal involvement in the conspiracy —
involved at least 50 grams of cocaine base was "overwhelming" and
"essentially uncontroverted." Cotton, 122 S. Ct. at 1786. "Surely the
. . . jury, having found that the conspiracy existed, would have also
found that the conspiracy involved at least 50 grams of cocaine base."
Cotton, 122 S. Ct. at 1786; see also Strickland, 245 F.3d at 379 (hold-
ing that on plain error review, the "defendants must . . . demonstrate
that the jury would not have found, beyond a reasonable doubt, that
the defendants conspired to traffic in at least . . . 50 grams of crack").
Indeed, we note, as did the Court in Cotton, that the only real affront
UNITED STATES v. CARRINGTON 13
to the judicial process would occur if Carrington, despite the strong
evidence of drug quantity presented at trial, were to receive a sentence
for a lesser crime than the one he committed. Cotton, 122 S. Ct. at
1787.
For the reasons given in our opinion on the first appeal, No. 99-
4537, and given in this opinion, we affirm the judgment of the district
court.
AFFIRMED
WILLIAMS, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in the judgment, and in the majority opinion except insofar
as it suggests that the error in this case pertained to the indictment.
Because the indictment in this case properly charged a non-
aggravated drug offense, the error pertains to the relationship between
Carrington’s sentence and the indictment.