PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4912
KEISHA CARTER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4913
JERRY LEE MCRAE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4914
TIVARUS MONTIENTO MCRAE, a/k/a/
Tat-Killer,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4915
WILLIE JEROME MCRAE,
Defendant-Appellant.
2 UNITED STATES v. CARTER
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4916
GILBERT DEVON MELVIN, a/k/a
G-Boy,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-98-37)
Argued: December 3, 1999
Decided: July 30, 2002
Before WIDENER and MURNAGHAN,* Circuit Judges,
and Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by published per curiam opinion.
COUNSEL
ARGUED: Richard Brooks Glazier, Fayetteville, North Carolina, for
Appellant Carter; Thomas Peter McNamara, HAFER, MCNAMARA,
CALDWELL, CUTLER & CURTNER, P.A., Raleigh, North Caro-
*Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. See 28 U.S.C. § 46(d).
UNITED STATES v. CARTER 3
lina, for Appellant William McRae; Wayne Buchanan Eads, Raleigh,
North Carolina, for Appellant Melvin; Rudolph Alexander Ashton,
III, MCCOTTER, MCAFEE & ASHTON, P.L.L.C., New Bern,
North Carolina, for Appellant Jerry McRae; Ray Colton Vallery, Fay-
etteville, North Carolina, for Appellant Tivarus McRae. John
Howarth Bennett, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee. ON BRIEF: H. Geral Beaver, Fayetteville,
North Carolina, for Appellant Carter. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
OPINION
PER CURIAM:
I.
The instant case results from a Task Force investigation into drug
trafficking in the area of the Campbell Terrace Public Housing Project
in Fayetteville, North Carolina. An indictment naming 20 defendants
was returned by the Grand Jury in the United States District Court for
the Eastern District of North Carolina on March 3, 1998. In general
terms, the indictment alleged (1) a conspiracy to distribute controlled
substances, including heroin and crack cocaine, beginning January 1,
1987, and continuing until March 5, 1998, in violation of 18 U.S.C.
§ 846 (Count 1), and (2) firearms violations during the course and
scope of the drug conspiracy, in violation of 18 U.S.C. § 924(c)(1)
(Counts 2-38).
Of the 20 defendants named in the indictment, the five appellants
in the instant case were joined for trial on September 29, 1998, in the
United States District Court for the Eastern District of North Carolina.
From October 6-8, 1998, the jury deliberated and then returned ver-
dicts with the following results:
(a) Keisha Carter was convicted of Counts Five and Six,
and a mistrial was declared on Count One.
4 UNITED STATES v. CARTER
(b) Jerry McRae was convicted of Count One.
(c) Tivarus McRae was convicted of Counts One and
Twenty-Six and was acquitted of Count Twenty-Seven.
(d) Willie McRae was convicted of Count One and acquit-
ted of Count Twenty-Nine.
(e) Gilbert Melvin was convicted of Counts One, Thirty,
and Thirty-Three and acquitted of Counts Thirty-One and
Thirty-Two.
Keisha Carter was sentenced to 60 months in prison on Count Five
and 240 months on Count Six. Jerry McRae was sentenced to life
imprisonment. Tivarus McRae was sentenced to 292 months in prison
on Count One and 60 months on Count Twenty-Six. Willie McRae
was sentenced to life imprisonment. Gilbert Melvin was sentenced to
life imprisonment on Count One, 60 months on Count Thirty and 240
months on Count Thirty-Three.
After sentencing, the five defendants filed a timely notice of
appeal. The grounds of appeal are numerous, and we address only
those specific grounds that merit discussion. We affirm the convic-
tions and sentences.
II.
Defendants Jerry McRae and Gilbert Melvin appeal from the denial
of their motion to suppress drug evidence seized from McRae’s auto-
mobile in September of 1997. McRae and Melvin were arrested after
Officer Lane Mooney of the Texas Narcotics Task Force seized
cocaine and marijuana from McRae’s automobile. In the trial below
before the district court, McRae filed a motion to suppress the drug
evidence. Melvin also adopted McRae’s motion. The district court
denied the suppression motions as to both defendants. We review a
denial of a motion to suppress de novo regarding legal conclusion,
with underlying factual determinations reviewed only for clear error.
See United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
UNITED STATES v. CARTER 5
The district court correctly held that Melvin lacked standing to
challenge the search of McRae’s automobile. A passenger in a car
normally has no legitimate expectation of privacy in an automobile in
which he asserts neither a property interest nor a possessory interest
and where he disclaims any interest in the seized object. See Rakes
v. Illinois, 439 U.S. 128, 148-49 (1978). In the instant case, Melvin
denied even knowing whose car he was in at the time Officer Mooney
pulled the car over and disclaimed any interest in the car’s contents.
Accordingly, Melvin lacks standing to challenge the search, and the
district court properly denied his motion to suppress the drug evi-
dence.
The district court was also correct when it denied McRae’s motion
to suppress. The seizure occurred when Officer Mooney pulled
McRae over for speeding. Officer Mooney testified that when he
approached the vehicle, he smelled burnt marijuana in the air. He
asked McRae, the driver, for permission to search the car. McRae
refused. Officer Mooney then detained the car and retrieved a K-9
drug-sniffing dog from his patrol car for the purpose of conducting a
walk-around search of the vehicle. During the walk-around, the dog
"alerted" when walking by the driver’s side door. Officer Mooney
then searched the entire passenger compartment of the vehicle and
found a quantity of marijuana on the passenger side of the center con-
sole. After discovering the source of the marijuana odor, Mooney then
conducted an additional search of the locked trunk of the car, includ-
ing a search of a closed suitcase in the trunk. Inside the suitcase,
Mooney found a kilogram of cocaine.
Warrantless searches "are per se unreasonable under the Fourth
Amendment — subject only to a few specifically established and
well-delineated exceptions." See California v. Acevedo, 500 U.S. 565,
580 (1991). One such exception is the presence of "exigent circum-
stances" — an exception presumptively present in the automobile
context because of the inherent mobility of the car and the danger that
contraband inside the car may disappear if police take the time to
obtain a warrant. See California v. Carney, 471 U.S. 386, 390-91
(1985). Thus the police may search a car without a warrant as long
as there is probable cause to believe the car contains contraband. Car-
ney, 471 U.S. at 392.
6 UNITED STATES v. CARTER
The police may also conduct warrantless searches of "closed con-
tainers" within an automobile, but only if they have probable cause
to believe the closed container may contain contraband. See Acevedo,
500 U.S. at 580. Whether the warrantless search is of an automobile
or of a closed container within an automobile, the limitation is the
same: the scope of the search is "defined by the object of the search
and the places in which there is probable cause to believe that it may
be found." United States v. Ross, 456 U.S. 798, 824 (1982). As the
Supreme Court held in Acevedo, a police officer who has probable
cause to believe a paper bag deposited in the trunk of a car contains
marijuana may conduct a warrantless search of the trunk and the
paper bag; but the officer can not then conduct a warrantless search
of the passenger compartment of the car, unless he also has probable
cause to believe the passenger compartment contains contraband. See
Acevedo, 500 U.S. at 580.
In the instant case, Officer Mooney clearly had probable cause to
search the passenger compartment of McRae’s vehicle without a war-
rant, based on the burning marijuana he smelled as he approached the
car. The question is whether he also had probable cause to search the
locked trunk of the car and the closed suitcase inside the trunk (where
the cocaine was found).
The government argues that the K-9 drug dog’s "alerting" on the
driver side of the car gave Mooney probable cause to search the entire
vehicle: including the trunk and the suitcase. We think that overstates
the matter. Because probable cause must be tailored to specific com-
partments and containers within an automobile, the key is whether the
dog "alerted" in the precise vicinity of the trunk. That is a question
of fact that the district court resolved in favor of the government,
finding that the dog’s "alerting" was sufficiently close to the trunk to
give Officer Mooney probable cause to believe it contained contra-
band. We review the district court’s findings of fact in a suppression
hearing only for clear error. See Seidman, 156 F.3d at 547; see also
United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). And it was
not clearly erroneous for the district court to conclude that the dog’s
"alerting" was prompted by the contents of the trunk.
III.
Defendant Jerry McRae also appeals from the district court’s denial
of his motion to suppress drug evidence seized from his car during a
UNITED STATES v. CARTER 7
separate warrantless search conducted by Fayetteville, North Carolina
police officers.
On March 1, 1997, the police responded to a domestic violence
report at McRae’s residence. The police put McRae in the back of a
police car and went back inside the home to talk to Ms. McRae. The
police and Ms. McRae tell two conflicting versions of what happened
next.
According to Ms. McRae, she never consented to the search of the
vehicle she co-owned with her husband (Jerry McRae). She testified
that the police officer took the car keys without her permission after
she emptied the contents of her purse onto the kitchen counter.
In contrast, the police officer testified that he asked Ms. McRae if
he could search the vehicle. After Ms. McRae asked why, the officer
told her he wanted "to make sure [Defendant McRae] doesn’t leave
anything in the car" that could get her in trouble. Ms. McRae then
allegedly responded "okay" and gave the car keys to the officer.
When the government justifies a warrantless search under the "vol-
untary consent" exception to the 4th Amendment’s warrant require-
ment, the district court’s factual determination as to whether consent
to the search was actually given is reviewed for clear error. See
United States v. Analla, 975 F.2d 119, 125 (4th Cir. 1992). The dis-
trict judge found the officer’s account was more reliable than Ms.
McRae’s and therefore concluded that Ms. McRae had in fact con-
sented to the search of the vehicle. Given that this was a classic "he
said, she said" scenario between the officer and Ms. McRae, the dis-
trict court’s decision to give the officer’s story greater weight was not
"clearly erroneous."
A related, but analytically distinct, issue is whether Ms. McRae’s
factual consent to the search was also "voluntary," as a matter of law.
The defendant argues that the police coerced Ms. McRae’s consent by
saying: "We want to search your car to make sure Mr. McRae didn’t
leave anything in the interior that might get you in trouble." The
defendant argues that, by inducing fear in Ms. McRae, the police
effectively intimidated her into consenting to the search.
8 UNITED STATES v. CARTER
Because the "voluntariness" of a search is a matter of law, it is
reviewed de novo. The voluntariness of consent is determined by
looking at the totality of the circumstances. See Schneckloth v. Busta-
monte, 412 U.S. 218, 226 (1973). While the police officers’ com-
ments, when viewed in isolation, seem rather manipulative, the
atmosphere was not coercive when viewed under the totality of the
circumstances. Ms. McRae was in her own home when she gave the
consent to the search; and though the police officers’ comments were
obviously designed to induce consent from Ms. McRae, there is no
evidence that her "will was overborne." Id. Accordingly, we affirm
the district court’s decision to deny Jerry McRae’s motion to suppress
the evidence obtained from his car on March 1, 1997.
IV.
While housed in county jail, Michael McEachern encountered Jerry
McRae. McEachern later agreed to be a government witness in the
prosecution of McRae. McEachern testified that McRae had made
statements while in jail evincing a violent attitude towards case agents
and others. McRae argued that the testimony should not have been
admitted because the government failed to disclose the contents of the
testimony to the defense pursuant to Fed. R. Crim. P. 16(a)(1)(A).
The district court disagreed and admitted the testimony. McRae now
appeals. We review a district court’s evidentiary rulings for abuse of
discretion. See United States v. Lancaster, 78 F.3d 888, 896 (4th Cir.
1996).
McRae’s argument is unpersuasive. Federal Rule of Criminal Pro-
cedure 16(a)(1)(A) only requires the disclosure of witness statements
made "in response to interrogation" by a person acting as a govern-
ment agent. McEachern’s statements about McRae’s violent propensi-
ties were not made in response to government interrogation, nor was
McEachern acting as a government agent when he heard McRae’s
statements. The district therefore did not abuse its discretion by
admitting the testimony over McRae’s 16(a)(1)(A) objection.
V.
At the sentencing hearing, Keisha Carter was sentenced to consecu-
tive prison terms of five and twenty years based upon her convictions
UNITED STATES v. CARTER 9
for two violations of 18 U.S.C. § 924(c)(1), which makes it a federal
crime to use or carry a firearm during or in relation to a drug traffick-
ing crime. See United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.
1997). Both counts of conviction (Counts 5 and 6) were based on the
same predicate drug trafficking crime: namely, the conspiracy offense
alleged in Count One. Carter filed a motion pursuant to Federal Rules
of Criminal Procedure 29 and 33, seeking a judgment of acquittal or
a new trial. Carter argues that she may not be sentenced to multiple
terms for two section 924(c) offenses that arose from a single under-
lying predicate drug trafficking offense. This is a question of law sub-
ject to de novo review. See United States v. Campbell, 977 F.2d 854
(4th Cir. 1992).
A number of other circuits have adopted the position the defendant
now urges on the Fourth Circuit. But we have already reached the
issue and decided it in a manner contrary to defendant’s position. See
United States v. Camps, 32 F.3d 102, 106 (4th Cir. 1994), cert.
denied, 513 U.S. 1158 (1995). Because Camps is dispositive, defen-
dant’s argument is a non-starter.
VI.
Carter raises yet another argument relating to her § 924(c) convic-
tion. To recapitulate, § 924(c) criminalizes the use or carrying of a
firearm in relation to an underlying, predicate drug trafficking
offense. See Mitchell, 104 F.3d at 652. Count One of the indictment
against Keisha Carter charged her with the predicate drug trafficking
offense. Count Five charged her with the § 924(c) firearm offense
arising from the underlying drug trafficking offense in Count One.
The jury was unable to reach a verdict on Count One, but issued a
guilty verdict on Count Five. Carter then filed a motion for judgment
of acquittal as to Count Five, arguing that the jury’s failure to convict
her for the predicate offense in Count One precluded her conviction
on Count Five. The district court denied her motion for judgment of
acquittal.
The issue is one of first impression for this court. Carter relies on
United States v. Wilson, 135 F.3d 291, 301 n.7 (4th Cir. 1998), where
we stated (in dicta) that "[w]e will not go into detail about the evi-
dence . . . on the 924(c) charge because that charge falls if its predi-
10 UNITED STATES v. CARTER
cate offense (conspiracy) falls." From this dicta, the defendant
attempts to extrapolate a Fourth Circuit judicial "leaning" in favor of
her position.
The government, on the other hand, points to the decisions of sev-
eral other federal circuits, all of whom have rejected Carter’s argu-
ment and have held that § 924(c) convictions do not require
convictions on the predicate drug trafficking offense as a prerequisite.
See, e.g., United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir.
1990) ("[I]t is only the fact of the offense, and not a conviction, that
is needed to establish the required predicate."). Thus, on the govern-
ment’s theory, the drug trafficking predicate for a § 924(c) offense is
satisfied as long as a reasonable jury could have found the defendant
guilty of the drug trafficking offense, even if the actual jury in the
case did not render a guilty verdict. The Fifth Circuit, in a post-Munoz
Fabela case, has even taken the more extreme position that § 924(c)
convictions are valid even when the jury acquits on the predicate drug
trafficking conviction. See United States v. Ruiz, 986 F.2d 905, 911
(5th Cir. 1993).
Notwithstanding the dicta in Wilson, we adopt the position of the
other federal circuits who have considered the question and hold that
§ 924(c) convictions do not require a conviction on the predicate drug
trafficking offense. We find the Munoz-Fabela approach more satis-
fying than the Ruiz approach because it requires at least some show-
ing by the government that a reasonable jury could have convicted on
the predicate drug offense.
Carter’s conviction on Count Five passes muster under the Munoz-
Fabela approach because the jury was unable to reach a verdict for
conviction or acquittal on the predicate drug offense. Because there
was no affirmative acquittal on Count One, a reasonable jury could
theoretically have convicted on the predicate drug offense embodied
by that Count.
VII.
Jerry McRae challenges the district court’s finding that he was
responsible for more than 500 but less than 1500 grams of crack
cocaine, establishing a sentencing guideline base offense level of 36
UNITED STATES v. CARTER 11
pursuant to U.S.S.G. § 2D1.1. After consideration of other factors,
McRae’s guideline range was set at 360 months to life in prison.
Drug quantity determination is governed by the following stan-
dards. The Government must prove by a preponderance of the evi-
dence the amount of controlled substances attributable to a defendant.
See United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir. 1995).
When objecting to drug quantities as set forth in the Presentence
Report, the defendant has an affirmative duty to show that the infor-
mation contained in the report is inaccurate or unreliable. See United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). A district court’s
findings regarding drug quantity are factual in nature and are
reviewed only for clear error. See United States v. Lamarr, 75 F.3d
964, 972 (4th Cir. 1996).
McRae argues that the drug quantity determination the district
court attributed to him was clearly erroneous because of a discrepancy
between the trial testimony of Edward Ward (indicating Ward had
only received cocaine from McRae on a few occasions) and Ward’s
statements to agents outside of court (which suggested Ward had pur-
chased around 567 grams of cocaine from McRae).
Because the sentencing judge had only to find the relevant drug
quantities by a preponderance of the evidence, the discrepancy in
Ward’s testimony is not fatal to the government’s proof. The self-
contradictions in Ward’s testimony essentially raise a credibility issue
— a question of fact that the district court must resolve at sentencing.
The district court’s factual findings regarding the relative credibility
of Ward’s two conflicting stories were not clearly erroneous. Neither
were the resulting drug quantity determinations. Accordingly, the dis-
trict court should be affirmed.
VIII.
Gilbert Melvin argues that he should not be held accountable dur-
ing sentencing for drug amounts flowing from offenses of which he
was acquitted. The Supreme Court, however, permits sentencing
courts to take acquitted conduct into account for purposes of deter-
mining drug amount, because of the lower standard of proof that
applies at the sentencing stage. See United States v. Watts, 519 U.S.
12 UNITED STATES v. CARTER
148, 155-56 (1997) ("[A]n acquittal in a criminal case does not pre-
clude the Government from relitigating an issue when it is presented
in a subsequent action governed by a lower standard of proof."); see
also United States v. Isom, 886 F.2d 736, 738 (4th Cir. 1989). At sen-
tencing, the government need only prove the "acquitted" drug conduct
by a preponderance of the evidence, even though the government
failed to convince a jury at trial beyond a reasonable doubt. See Watts,
519 U.S. at 156; see also Johnson, 54 F.3d at 1156.
The question for the instant case, therefore, is whether it was
clearly erroneous for the district court to conclude that Melvin’s "ac-
quitted" conduct, while not proven beyond a reasonable doubt at trial,
was still proven by a preponderance of the evidence for purposes of
sentencing. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.
1996).
The district court reviewed the entire trial record, the Presentence
Report, and the testimony at the sentencing hearing. The court then
concluded that the government had proven the drug amounts attribut-
able to Melvin beyond a reasonable doubt. That finding was not
clearly erroneous.
IX.
The district court found that Jerry and Willie McRae were organi-
zational leaders of a criminal enterprise involving five or more partic-
ipants and consequently assessed them a four level increase in their
sentencing guideline offense level pursuant to U.S.S.G. § 3B1.1(a). A
district court’s findings regarding offense enhancement are factual in
nature and are reviewed only for clear error. See United States v.
Withers, 100 F.3d 1142, 1147 (4th Cir. 1996).
Jerry McRae argues that he was merely a "street dealer" or "middle
man" in a much larger drug distribution apparatus engineered by other
parties. The level four enhancement was therefore too severe in his
view.
However, there was a large quantity of evidence pointing to Jerry
McRae’s intimate involvement in the distribution of drugs in the
UNITED STATES v. CARTER 13
Campbell Terrace projects. The same goes for Willie McRae, who
seems to have had an even more active role in the drug trade. The
record contains abundant testimony from street dealers in Campbell
Terrace who identified Jerry and Willie McRae as the principal sup-
pliers of crack cocaine to the street dealers in the housing project.
Also, Anthony McNeill and Anthony Ray testified that more than ten
people worked for the McRae brothers.
In view of this evidence, it was not clearly erroneous for the district
court to conclude that Jerry and Willie McRae had leadership roles in
the drug network and to assess a four level enhancement of their base
offense levels.
X.
Evidence was submitted at the sentencing hearing that Gilbert Mel-
vin shot and killed Gaylord Johnson during a drug-related altercation.
When computing the base offense level for Melvin’s drug conviction,
the court took account of the killing, even though Melvin had not
been indicted and convicted of murder. Finding the evidence of the
killing nonetheless persuasive, the sentencing court set a base offense
level of 43, relying on U.S.S.G. § 2D1.1(d)(1) (death during drug
offense) in combination with U.S.S.G. § 2A1.1 (murder). Melvin con-
tends that this was inappropriate, given that (a) he was never tried by
a jury and convicted of murder and (b) even if the standard for prov-
ing murder is more relaxed in the sentencing context, there was still
not enough evidence to prove he actually committed the murder.
In United States v. Crump, 120 F.3d 462 (4th Cir. 1997), we held
that if a court’s findings of fact at sentencing "may rationally be said
to be supported by a preponderance of the evidence, they may not be
disturbed on appeal." Id. at 468. Thus, if the district court concluded
by a preponderance of the evidence that Melvin killed Johnson, that
factual conclusion withstands appellate review as long as it was not
clearly erroneous.
A preponderance of the evidence indeed supported the court’s find-
ing that Melvin killed Johnson. At the sentencing hearing, a deputy
testified to statements made by Edward Ward, George Gibbs, and Earl
Webb, all of whom implicated Melvin in the killing. Thus the district
14 UNITED STATES v. CARTER
court’s factual conclusion as to Melvin’s role in the killing was not
clearly erroneous; and because the circumstances of the killing met
the requisite legal definition of "murder," the corresponding base
offense level of 43 was also appropriate under § 2D1.1(d)(1) and
§ 2A1.1.
As in Crump, Melvin’s "real complaint is that he was, in effect,
tried and sentenced for first degree murder without the benefit of a
jury finding the same beyond a reasonable doubt." Id. Nonetheless,
"[w]e have previously held that this method of ‘real offense’ sentenc-
ing does not offend the Constitution." Id. (citing United States v.
Engleman, 916 F.2d 182, 184 (4th Cir. 1990)).
XI.
Gilbert Melvin also received a Criminal History Category Score of
VI because the court found him to be an "armed career criminal"
under § 4B1.1. One is an armed career criminal if (a) the instant
offense of conviction is a felony involving a crime of violence or con-
trolled substance offense and (b) the defendant has at least two prior
felony convictions involving a crime of violence or controlled sub-
stance offense. See U.S.S.G. § 4B1.1.
Melvin’s first claim is that, because the instant drug conspiracy
began in 1987 and continued until 1999, his felony conviction in 1993
for drug trafficking is not really a "prior" felony for purposes of
§ 4B1.1, since it postdated the onset of the drug conspiracy. Melvin’s
argument is unpersuasive. Conspiracy is a continuing offense, con-
stantly renewing itself. Accordingly, the 1993 conviction both pre-
ceded and postdated the "beginning" of the conspiracy, because
conspiracies, by their very nature, do not have a "beginning" in the
conventional sense of the word. Every other federal circuit to consider
the issue has come to the same conclusion. See, e.g., United States v.
Belton, 890 F.2d 9, 10-11 (7th Cir. 1989); accord United States v.
Marrone, 48 F.3d 735, 741 (3rd Cir. 1995).
Second, Melvin claims that his prior assault convictions should not
be treated as "violent felonies" under § 4B1.1 because, after he com-
mitted the assaults, North Carolina law changed the maximum pun-
ishment from two years to 150 days. United States v. Johnson, 114
UNITED STATES v. CARTER 15
F.3d 435 (4th Cir. 1997), forecloses this argument. There, we held
that the sentencing guidelines "do not provide any support for . . .
[the] notion that the nature of the conviction at the time of sentencing,
rather than at the time of conviction, controls the career offender anal-
ysis." Id. at 445.
We therefore affirm the district court’s decision to sentence Melvin
as an armed career criminal under § 4B1.1.
XII.
In sentencing the defendants the district court did not have the ben-
efit of the Supreme Court’s decision in United States v. Apprendi, 530
U.S. 466 (2000), nor our subsequent decisions (among others) in
United States v. Angle, 254 F.3d 514 (4th Cir. 2001) (en banc), United
States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), United
States v. White, 238 F.3d 537 (4th Cir. 2001), and United States v.
Cotton, 261 F.3d 397 (4th Cir. 2001), applying the rule in Apprendi
to the federal drug statutes. Although, as just explained, we affirm the
district court’s process and findings in calculating the applicable sen-
tencing guideline ranges for Jerry McRae, Tivarus McRae, Gilbert
Melvin, and Willie McRae, we now must address the effect of
Apprendi and our recent decisions on the sentences actually imposed
on those defendants.
We next address whether the defendants’ sentences under the fed-
eral drug statutes, 21 U.S.C. §§ 841 & 846, are invalid in light of the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). During the pendency of this appeal, the Supreme Court held
in Apprendi 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 reason-
able doubt." Apprendi, 530 U.S. at 490. Each defendant, except
Keisha Carter, argues that his sentence is invalid in light of Apprendi
because it exceeds the maximum statutory penalty authorized by the
jury verdict. Keisha Carter was not convicted on Count I, the conspir-
acy charge, so she makes no sentencing complaint here related to
Apprendi.
In United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en
banc), we held that drug quantity and type are elements of the offense
16 UNITED STATES v. CARTER
under 21 U.S.C. § 846 that must be submitted to a jury and proven
beyond a reasonable doubt. See Promise, 255 F.3d at 151; see also
United States v. Angle, 254 F.3d 514 (4th Cir. 2001) (en banc). The
en banc court held that the maximum penalty that may be imposed on
a particular defendant who possesses with the intent to distribute an
identifiable but unspecified quantity of a schedule I or II drug is sub-
ject to a term of imprisonment of no more than 20 years. See 21
U.S.C. § 841(b)(1)(C). A sentence exceeding 20 years could be
imposed only upon a finding by the jury that the offense involved a
required threshold quantity of a schedule I or II controlled substance
— for example, 1 kilogram or more of heroin. See 21 U.S.C.
§ 841(b)(1)(A)(i). Therefore, if the required threshold quantity of
drugs was not found by the jury, a judge at sentencing could not
impose a penalty in excess of 20 years, and it was error for a court
to do so. The failure to instruct the jury on an element of an offense
does not, however, constitute error per se; rather, we consider whether
the error was harmless or plain. See Federal Rule of Criminal Proce-
dure 52; see also Neder v. United States, 527 U.S. 1, 15 (1999) (hold-
ing that failure to instruct jury on essential element of offense is not
structural error).
Because no defendant raised this argument1 before the district
court, our review is for plain error. See United States v. Olano, 507
U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b). To reverse for plain
error occurring at trial, a reviewing court must: 1) identify an error;
2) that was plain; 3) that affects substantial rights; and 4) that seri-
ously affects the fairness, integrity or public reputation of judicial
proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993);
United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993).
In United States v. Cotton, 261 F.3d 397 (4th Cir. 2001), this court
answered the question raised in the fourth prong of the Olano analysis
in the affirmative, holding that the failure to charge drug quantify in
the indictment and submit it to the jury seriously affects the fairness,
1
Although Willie McRae and Jerry McRae contested drug quantity at
sentencing, they asserted the evidence on which the judge relied was
"unreliable," not that the jury should have made that determination. Thus,
they did not preserve the objection now made. See United States v. Pratt,
239 F.3d 640, 644 (4th Cir. 2001).
UNITED STATES v. CARTER 17
integrity or public reputation of judicial proceedings. See Cotton, 261
F.3d at 403-04. Our conclusion that we must exercise our discretion
to notice these errors, however, was recently reversed by the Supreme
Court in United States v. Cotton, 525 U.S. at ___, 122 S. Ct. 1781
(2002). The Court held that, "even assuming [defendants’] substantial
rights were affected, the error did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings" where "the evi-
dence . . . was ‘overwhelming’ and ‘essentially’ uncontroverted." Cot-
ton, 122 S. Ct. at 1786. In the context of a vast drug conspiracy, not
unlike this one, the Court concluded that "[t]he real threat then to the
‘fairness, integrity, and public reputation of judicial proceedings’
would be if respondents, despite the overwhelming and uncontro-
verted evidence that they were involved in a vast drug conspiracy,
were to receive a sentence prescribed for those committing less sub-
stantial drug offenses because of an error that was never objected to
at trial." Cotton, 122 S. Ct. at 1787.
The Court’s holding under its analysis in Cotton was that under an
Olano plain error analysis we should not notice Apprendi sentencing
error, where drug quantity was not alleged in the indictment nor
proven to the jury, if the evidence is overwhelming and essentially
uncontroverted. We thus address the four complaining defendants’
sentences in turn and for the reasons that follow we affirm all four
sentences.
A.
Jerry McRae was sentenced to life imprisonment for his conviction
under Count One of the indictment, which alleged a violation of 21
U.S.C. § 846.2 The indictment did not allege drug quantity, and the
jury instructions did not state that the jury must find drug quantity.
Thus, it was error for the district court to sentence Jerry McRae
beyond the 20-year statutory maximum found in 21 U.S.C.
§ 841(b)(1)(C), and in light of Apprendi and our decision in Promise,
this error was plain. See United States v. Neal, 101 F.3d 993, 998 (4th
Cir. 1996) (holding that an error is plain "when the ‘settled law of the
2
The provisions set out in 21 U.S.C. § 841(b) are incorporated by ref-
erence into § 846.
18 UNITED STATES v. CARTER
Supreme Court or this circuit’ establishes that an error has occurred.
. . .").
We need not notice this plain error, however, because even assum-
ing Jerry McRae’s substantial rights were affected, there is over-
whelming and essentially uncontroverted evidence supporting Jerry
McRae’s life sentence.3 See Cotton, 525 U.S. at ___, 122 S. Ct. 1781,
1786 (2002).
Jerry McRae was a central figure in the drug conspiracy based in
the Campbell Terrace public housing project of Fayetteville, North
Carolina that continued for nearly a decade. There was ample evi-
dence presented at trial and at the sentencing hearing that Jerry
McRae was personally involved with far more than 50 grams of crack
cocaine as well as large amounts of heroin and marijuana. Even if we
accept McRae’s assertion that the evidence offered by witness
Edward Ward, attributing 567 grams of cocaine base to him, is
invalid, McRae himself concedes that 56.70 grams of cocaine can be
properly attributed to him based on Ward’s testimony. This conces-
sion alone, without considering the additional evidence of drug quan-
tity presented at the trial or at sentencing, provides overwhelming and
essentially uncontroverted evidence that Jerry McRae was account-
able for at least 50 grams of cocaine base. Where such evidence
exists, even in the face of plain error, we need not recognize the error
because the fourth prong of Olano is not met. Cotton, 525 U.S. at ___,
122 S. Ct. 1781, 1786 (2002).
B.
Willie McRae was also sentenced to life imprisonment for his con-
viction under Count One of the indictment, which alleged a violation
of 21 U.S.C. § 846. The indictment did not allege drug quantity, and
the jury instructions did not state that the jury must find drug quantity.
Thus, it was also error for the district court to sentence Willie McRae
beyond the 20-year statutory maximum found in 21 U.S.C.
§ 841(b)(1)(C), and in light of Apprendi and our decision in Promise,
this error was plain. See Neal, 101 F.3d at 998.
3
The penalty for conspiracy to distribute 50 grams or more of cocaine
base is "not less than 10 years or more than life." 21 U.S.C. § 841(b).
UNITED STATES v. CARTER 19
Similar to the case of Jerry McRae, we should not notice the error
even if Willie McRae’s substantial rights were affected, however,
because there is also overwhelming and essentially uncontroverted
evidence of Willie McRae’s responsibility for at least 50 grams of
cocaine base. See Cotton, 525 U.S. at ___, 122 S. Ct. 1781, 1786
(2002).
Willie McRae challenges the evidence of the drug quantity for
which he was held accountable as unreliable. McRae argues that sev-
eral of the sources relied upon by the court for evidence of drug quan-
tity claimed that they engaged in drug transactions with McRae at
times when McRae was actually incarcerated. McRae also asserts that
the information on drug quantity obtained from sources who did not
testify at trial is inherently unreliable. Even if we assume, without
deciding, that McRae is correct and we discount any evidence of drug
quantity supported by individuals who either did not testify at trial or
who indicated they engaged in drug transactions with McRae from
March 15, 1991 until April 15, 1994, a period of McRae’s incarcera-
tion, we still find overwhelming, essentially uncontroverted evidence
that Willie McRae was responsible for over 50 grams of cocaine base.
Anthony McNeil testified that over a period of more than a year,
brothers Willie and Jerry McRae had an arrangement where they
pooled money with McNeil and another McRae brother, Michael, to
purchase drugs obtained by James "Buddy" Johnson in New Jersey.
On a typical trip, Johnson returned with one kilogram of cocaine,
sometimes in crack cocaine form, for this group. Just one of these
repeated purchases of 1,000 grams of crack cocaine satisfied Willie
McRae’s 50-gram statutory crack cocaine requirement 20 times over.
In light of this overwhelming and essentially uncontroverted evidence
that Willie McRae is accountable for over 50 grams of cocaine base,
we should not notice the Apprendi error in his sentencing. Cotton, 525
U.S. at ___, 122 S. Ct. 1781, 1786 (2002).
C.
Tivarus McRae was sentenced to 292 months imprisonment for
violating 21 U.S.C. § 846 (Count One) and to 60 months imprison-
ment for violating 18 U.S.C. § 924 (c)(1) (Count Twenty-Six), the lat-
ter to run consecutive to the § 846 sentence. In total, Tivarus McRae
20 UNITED STATES v. CARTER
received a 353-month sentence. Again, it was error for the district
court to sentence Tivarus McRae beyond the 20-year or 240-month
statutory maximum found in 21 U.S.C. § 841(b)(1)(C) for Count One,
and in light of Apprendi and our decision in Promise, this error was
plain. See Neal, 101 F.3d at 998.
Like Jerry and Willie McRae, we should not recognize the sentenc-
ing error, however, because there is overwhelming and essentially
uncontroverted evidence that Tivarus McRae was accountable for
over 50 grams of cocaine base, which would support a sentence of up
to life in prison for Count One. See Cotton, 525 U.S. at ___, 122
S. Ct. 1781, 1786 (2002); 21 U.S.C. § 841(b).
George Jarrell Gibbs testified that he, Tivarus McRae, and Gary
McCoy made crack cocaine purchases from Larry Dye seven or eight
times, and each purchase ranged from one ounce to four and one-half
ounces. Gary McCoy testified that Tivarus McRae made purchases
from him of between four and one-half ounces and nine ounces of
crack cocaine over a period of more than one year. Demario Hopkins
testified that he bought quarter-ounce and half-ounce quantities of
crack cocaine from Tivarus McRae so frequently that he could not
remember the number of times. Edward Ward testified that Tivarus
McRae received three-ounce and four-ounce quantities of crack
cocaine from Jerry McRae on a regular basis, and that Ward pur-
chased four ounces of crack cocaine from Tivarus McRae every other
day during February and March of 1997. Ward also testified that he
once saw Tivarus McRae with 18 ounces of crack cocaine. Anthony
McNeil testified that Tivarus McRae purchased 14 to 28-ounce quali-
tites of crack cocaine from him twice weekly over a period of time.4
We conclude that there was overwhelming and essentially uncon-
troverted evidence that Tivarus McRae should be held accountable for
well over 50 grams of cocaine base, and thus we decline to notice the
error in Tivarus McRae’s sentence. See Cotton, 525 U.S. at ___, 122
S. Ct. 1781, 1786 (2002).
4
We consider that one ounce is equal to 28.38 grams.
UNITED STATES v. CARTER 21
D.
Gilbert Devon Melvin was found guilty of violating 21 U.S.C.
§ 846 (Count One) and found guilty of two counts of violating 18
U.S.C. § 924(c)(1) (Counts Thirty & Thirty-Three). The district court
sentenced him to life imprisonment on the § 846 count and to 60
months and 240 months on the counts under § 924(c)(1), the latter
two sentences to run consecutive to the § 846 count, for a total of life
plus 25 years. It was error for the district court to sentence Melvin
beyond the statutory maximum found in 21 U.S.C. § 841(b)(1)(C) and
in light of Apprendi and our decision in Promise, this error was plain.
Once again, however, because we conclude there is overwhelming
and essentially uncontroverted evidence that Melvin is responsible for
over 50 grams of cocaine base, we decline to notice the error and we
affirm his sentence. See Cotton, 525 U.S. at ___, 122 S. Ct. 1781,
1786 (2002).
Evidence showed that Melvin was a drug dealer. Even if we dis-
count evidence of the 425.25 grams of crack cocaine obtained in a
robbery in which Melvin allegedly participated, as Melvin asserts we
should,5 there is still ample evidence of cocaine base drug transactions
to more than meet the 50-gram threshold to support a sentence of life
imprisonment. Melvin bought crack cocaine from Gary McCoy
numerous times, sometimes in half-ounce quantities. He also sold
half-ounce quantities to Demario Hopkins on several different occa-
sions, and he delivered a half ounce of crack cocaine to Edward
Ward. Just four of these half-ounce transactions suffice to place Mel-
vin above the 50-gram threshold. In addition, as is true of all the
defendants convicted of the drug conspiracy detailed in Count One,
5
Melvin objected to inclusion of the 425.25 grams of cocaine base
counted in his PSR as relevant conduct because the robbery incident
served as the substantive basis of Count 32, a firearms charge of which
he was acquitted. We hasten to note that conduct proven as evidence of
a crime of which a defendant was acquitted may be used as relevant con-
duct in sentencing if proven by a preponderance of the evidence. See
United States v. Watts, 519 U.S. 148 (1997); United States v. Isom, 886
F.2d 736 (4th Cir. 1989). We exclude consideration of the cocaine base
related to the robbery only for the sake of argument.
22 UNITED STATES v. CARTER
to the extent their conduct was foreseeable to one another, each defen-
dant is responsible for the drug amounts linked to each of the other
conspirators.
XIII.
We have examined the briefs of the defendants and the record and
after oral argument have discussed in the opinion the issues raised in
those briefs which are of any consequence at all. Any other issues
which may be gleaned from the briefs are without merit.
The convictions and sentences of the defendants are accordingly
AFFIRMED.