United States v. Pauley

Panel rehearing granted by
order filed 9/12/02
 PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 00-4359

OVERTON WAYNE PAULEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-99-48)

Argued: January 25, 2002

Decided: April 22, 2002

Before WIDENER and GREGORY, Circuit Judges, and
Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

____________________________________________________________

Affirmed in part, vacated in part, and remanded by published opinion.
Judge Gregory wrote the opinion, in which Judge Widener and Senior
Judge Hall joined.

____________________________________________________________

COUNSEL

ARGUED: David Robert Bungard, ROBINSON & MCELWEE,
L.L.P., Charleston, West Virginia, for Appellant. John Castle Parr,
Assistant United States Attorney, Huntington, West Virginia, for
Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney,
Stephanie Taylor, Student Intern, Huntington, West Virginia, for
Appellee.

____________________________________________________________

OPINION

GREGORY, Circuit Judge:

Appellant Overton Wayne Pauley asserts numerous challenges to
his sentence of 40 years imprisonment for aiding and abetting posses-
sion with intent to distribute methamphetamine and marijuana in vio-
lation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We affirm in all
respects but one. Because Pauley's sentence ran afoul of Apprendi v.
New Jersey, 530 U.S. 466 (2000), and United States v. Cotton, 261
F.3d 397 (4th Cir. 2001), cert. granted, ___ U.S. ___, 122 S. Ct. 803,
151 L. Ed. 2d 689 (2002), we vacate his sentence and remand for
resentencing.

I.

Pauley was part of a loose-knit group of individuals, known as the
"Garrison Street Crew," that was engaged in distribution of marijuana
and methamphetamine in Kanawha County, West Virginia. The crew
added to its inventory of drugs for distribution by effecting a string
of thefts from other drug dealers. The criminal charges against Pauley
stemmed from one of these thefts.

The primary collaborators in the scheme to steal drugs were Pauley
and another man named John Hudson, Jr. On May 10, 1998, Pauley
and Hudson obtained the assistance of two other men, Shawn Pittman
and Rob Parsons, for the purpose of robbing a drug dealer named
James Facemeyer at the home of his girlfriend, Carolyn Selbe. The
four men drove to Selbe's trailer home in Pauley's Nissan Maxima.
Hudson was armed with a .9mm handgun and Parsons was armed
with a hammer. Pauley acted as driver and lookout. Pittman also
served as a lookout. Wearing masks, Hudson and Parsons kicked
down the door and quickly proceeded to the bedroom where they
found Facemeyer and Selbe asleep. Brandishing their weapons, Hud-

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son and Parsons demanded drugs and money. Facemeyer complied
and surrendered two ounces of methamphetamine and four to five
pounds of marijuana.

In November 1998, Hudson learned that another drug dealer, Jason
Jarrell, was in possession of one-half kilogram of cocaine. Hudson
and Pauley drove to Jarrell's home to scout the location. In mid-
November, Pauley, Hudson, Rob Parsons, and Steve Hager drove to
Jarrell's home to commit the robbery, again using Pauley's Nissan Max-
ima.1 The plan, which called for Pauley to approach the house and
knock on the door, failed because Pauley was unable to force his way
through the door. Later that day, Pauley and Hudson returned with
two other individuals, but were unable to commit the robbery because
Jarrell came outside with a gun in his waistband. Within a couple of
days, Hudson and another man returned to Jarrell's home, broke in,
and stole the cocaine. For Pauley's part in scouting and planning the
earlier robbery attempt, Hudson sold Pauley an ounce of cocaine at
a price below market value.

On December 10, 1998, Pauley was involved in a third drug-related
theft. Pauley had earlier learned from Hudson that Christy Alberts and
Leonard Watts, also known to deal drugs, had been talking to others
about Hudson's role in drug activities which, if those activities
became known to law enforcement officers, would implicate not only
Hudson, but others who participated, including Pauley. Pauley
recruited Lonnie Stuckey to go to the residence of Alberts and Watts
to rob them of drugs and money. Hudson provided guns to Pauley for
use in the robbery. Pauley and Stuckey were driven to the residence
by two female friends. After donning masks, Pauley and Stuckey
kicked down the door to Watts' residence. Finding Watts and Alberts
in the bedroom, Pauley searched the room for drugs and then ordered
Watts and Alberts into the living room. Pauley ordered Watts and
Alberts to lie face down on the floor. Although he was wearing a
mask, Christy Alberts recognized Pauley, and stated, "I know it's you
Wayne, I'm going to get you Wayne, you are going to get in trouble."
Pauley shot and killed both Alberts and Watts. He then stole 7.12
grams of methamphetamine.
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1
The record is unclear as to the exact date in November 1998.

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 On March 15, 1999, Pauley participated in a fourth theft, this time
at the residence of a drug dealer named Byrd. Pauley, accompanied
by Hudson and two others, drove his Nissan Maxima to the residence.
Finding the home unoccupied, all four individuals entered the home.
Though they found no drugs, the four did steal eleven firearms from
the residence.

Pauley was subsequently arrested and charged in a ten count indict-
ment. He pleaded guilty to count eight, which charged him with aid-
ing and abetting possession with intent to distribute
methamphetamine and marijuana in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Count eight was based on the May 10,
1998 robbery of James Facemeyer. On July 19, 1999, Pauley entered
his plea. The remaining counts were dismissed.

At sentencing, the district court found that Pauley was responsible
for a quantity of drugs equivalent to 456.25 kilograms of marijuana.
The district court then applied the murder cross-reference contained
in U.S. Sentencing Guidelines Manual § 2D1.1(d)(1), resulting in a
guideline sentence of life imprisonment. Without the cross-reference,
Pauley's guideline range would have been 97 to 121 months. The dis-
trict court applied the murder cross-reference after concluding that the
murders were part of the same course of conduct as the offense of
conviction or a common scheme or plan. J.A. 377. The district court
imposed a sentence of 40 years—the maximum amount of time under
18 U.S.C. § 841(b)(1)(B). Pauley filed a timely appeal.

II.

The district court's findings of fact at sentencing, including those
pertaining to relevant conduct, are reviewed for clear error. 18 U.S.C.
§ 3742; United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996);
United States v. Williams, 977 F.2d 866, 869 (4th Cir. 1992). The dis-
trict court's legal conclusions are subject to de novo review. United
States v. Brock, 211 F.3d 88, 90 (4th Cir. 2000).

A.

Under the scheme created by the United States Sentencing Guide-
lines, whether a particular cross-reference should be applied depends

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on whether the conduct to which the cross-reference refers is "rele-
vant conduct," defined as follows:

(1) (A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or
willfully caused by the defendant; and

(B) in the case of jointly undertaken criminal
activity (a criminal plan, scheme, endeavor,
or enterprise undertaken by the defendant in
concert with others, whether or not charged
as a conspiracy), all reasonably foreseeable
acts and omissions of others in furtherance of
the jointly undertaken criminal activity,

that occurred during the commission of the offense
of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or
responsibility for that offense;

(2) solely with respect to offenses of a character for which
§ 3D1.2(d) would require grouping of multiple counts,
all acts and omissions described in subdivisions (1)(A)
and (1)(B) above that were part of the same course of
conduct or common scheme or plan as the offense of
conviction;

(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and all
harm that was the object of such acts and omissions;
and

(4) any other information specified in the applicable
guidelines.

USSG § 1B1.3. The district court found that the murders were rele-
vant conduct under subsection (a)(2).

By its terms, § 1B1.3(a)(2) applies only to offenses to which
§ 3D1.2(d) would require the grouping of multiple counts. Offenses
are grouped together under § 3D1.2(d), inter alia,

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 [w]hen the offense level is determined largely on the basis
of the total amount of harm or loss, the quantity of a sub-
stance involved, or some other measure of aggregate harm,
or if the offense behavior is ongoing or continuous in nature
and the offense guideline is written to cover such behavior.

USSG § 3D1.2(d). Section 3D1.2(d) also lists guidelines to which the
section applies. The offense level in drug distribution cases is, of
course, determined on the basis of quantity, and § 2D1.1—the guide-
line containing the murder cross-reference—is specifically listed as a
guideline to which § 3D1.2(d) applies. Accordingly, the district court
properly looked to § 1B1.3(a)(2) in determining the scope of "relevant
conduct."

Under § 1B1.3(a)(2), in sentencing Pauley on one count of aiding
and abetting the possession with intent to distribute methamphetamine
and marijuana, the district court was required to determine the appli-
cability of the murder cross-reference based on "all acts and omis-
sions committed, aided, [and] abetted" by Pauley "that were part of
the same course of conduct or common scheme or plan as the offense
of conviction . . . ." Ultimately, then, whether the murder cross-
reference should have been applied depends on whether the murders
occurred during conduct that was "part of the same course of conduct
or common scheme or plan as" the May 10, 1998 drug-related rob-
bery of James Facemeyer. See William W. Wilkins, Jr. & John R.
Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing
Guidelines, 41 S.C. L.Rev. 495, 514-15 (1990) ("Relevant Conduct of
any one count of conviction that is part of a scheme or course of con-
duct includes all of the conduct (within the scope of subsection (a)(1))
that is part of the scheme or pattern.").

We have set forth a fairly straight-forward test for assessing
whether conduct is part of "the same course of conduct or common
scheme or plan":

[T]he sentencing court is to consider such factors as the
nature of the defendant's acts, his role, and the number and
frequency of repetitions of those acts, in determining
whether they indicate a behavior pattern. The significant
elements to be evaluated are similarity, regularity and tem-

6
 poral proximity between the offense of conviction and the
uncharged conduct. Although an appellate court cannot for-
mulate precise recipes or ratios in which these components
must exist in order to find conduct relevant, a district court
should look for a stronger presence of at least one of the
components if one of the components is not present at all.
If the uncharged conduct is both solitary and temporally
remote, then there must be a strong showing of substantial
similarity.

United States v. Mullins, 971 F.2d at 1144 (quotations and citations
omitted); see also United States v. Williams, 977 F.2d 866, 870 (4th
Cir. 1992).

Applying this standard, we find that the string of thefts perpetrated
by Pauley and the rest of the Garrison Street Crew to obtain drugs
were part of the same course of conduct or common scheme or plan,
and hence relevant conduct. Because the murders were committed
during the course of one of the thefts, it too is relevant conduct. The
thefts occurred in May 1998, November 1998, December 1998, and
March 1999. Although the six month time lapse between the May
1998 and November 1998 thefts makes the later thefts somewhat
remote, the sheer repetitive nature of the conduct—four thefts in
eleven months—tends to support the district court's finding that the
thefts were part of the same course of conduct. See United States v.
Hahn, 960 F.2d 903, 911 (9th Cir. 1992); United States v. Santiago,
906 F.2d 867, 873 (2d Cir. 1990). Most important, the thefts were
exceedingly similar. Each theft was perpetrated for the purpose of
stealing drugs from the residence of another drug dealer. Each of the
thefts involved Pauley and Hudson, who recruited others to assist them.2
____________________________________________________________
2
Pauley argues that the various participants differed from theft to theft.
Further, he argues that the November 1998 theft should not be consid-
ered because he was not directly involved in the actual commission of
the theft. We do not think that these differences from theft to theft do
much to undermine the district court's findings of similarity. Any differ-
ences in how a particular theft actually occurred must be viewed in the
context of planning and executing these types of theft. As for the
November 1998 theft, Pauley helped scout and plan the theft. Pauley was
involved in an initial attempt, but that attempt was aborted. Most impor-

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In three of the thefts, the participants were masked and armed.3 These
are precisely the sort of similarities—common victims, common
purpose, common accomplices, and similar modus
operandi—contemplated by the Guidelines. USSG § 1B1.3 app. note
9(A); Mullins, 971 F.2d at 1145. The district court's ruling that each
of the four drug-related thefts, and consequently the murders of Leon-
ard Watts and Christy Alberts, were relevant conduct for sentencing
purposes was not clearly erroneous. Accordingly, application of the
murder cross-reference was appropriate.

B.

Pauley argues that the "law of the case doctrine" bars the applica-
tion of the murder cross-reference. According to Pauley, because the
murder cross-reference was not applied to Hudson, it cannot be
applied to him. Pauley misunderstands the "law of the case doctrine."
The doctrine posits that,

once the decision of an appellate court establishes the law
of the case, it must be followed in all subsequent proceed-
ings in the same case in the trial court or on a later appeal
. . . unless: (1) a subsequent trial produces substantially dif-
ferent evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or (3) the
prior decision was clearly erroneous and would work a man-
ifest injustice.

United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting
____________________________________________________________
tant, he shared in the fruits (and, indeed, the goal) of the theft, viz.,
drugs. Similarly, Hudson was not directly involved in the actual commis-
sion of the December 1998 robbery—the one during which Watts and
Alberts were murdered—but he provided weapons and informed Pauley
that Watts and Alberts were talking about their drug activities. In short,
this was Hudson and Pauley's scheme, although the actual participants
and the level of their participation varied to some degree—nothing out
of the ordinary for such a criminal enterprise.
3
The record is unclear as to whether the participants in the November
1998 theft were masked or armed.

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Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988))
(internal quotation marks omitted). The law of the case doctrine is
inapplicable here. No appellate court or district court has made any
ruling regarding the murder cross-reference in Hudson's case. In actu-
ality, Pauley is complaining about the absence of a decision to apply
the cross-reference to Hudson, and a perceived resulting unfairness.
The law of the case doctrine does not prohibit individualized treat-
ment of defendants. See United States v. Montgomery, 262 F.3d 233,
251 (4th Cir. 2001) (holding that "law of the case" does not require
government to give co-defendant benefit of stipulation entered into
for purposes of defendant's plea); cf. United States v. Piche, 981 F.2d
706, 719 (4th Cir. 1992) (holding that sentencing court may not
downwardly depart from Sentencing Guidelines in order to eliminate
disparate treatment between similarly situated co-conspirators, one of
whom was sentenced pursuant to state law conviction). Accordingly,
the law of the case doctrine was no bar to the application of the mur-
der cross-reference to Pauley.

C.

Pauley next argues that the district court erred in the amount of
drugs attributed to him as relevant conduct. The district court found
that the equivalent of 456.25 kilograms of marijuana was attributable
to Pauley. Pauley's primary assertion is that drugs taken during the
later thefts should not count as relevant conduct. This argument fails
for the same reason as his murder cross-reference argument. The later
thefts were part of the same course of conduct. Pauley's other asser-
tion is that a large amount of the drugs were for personal use, and
therefore should not have been considered in calculating his base
offense level. See United States v. Wyss, 147 F.3d 631, 632 (7th Cir.
1998); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir. 1993).
We need not decide today whether drugs possessed for personal use
should be considered relevant conduct in sentencing for possession
with intent to distribute because the district court's finding that Pauley
possessed the entire quantity with intent to distribute was not clearly
erroneous. The district court based its determination on the overall
amounts stolen during the thefts, the proven purpose of the thefts to
obtain drugs for distribution, and the testimony of witnesses, includ-
ing Hudson, regarding the amount of drugs received by Pauley for

9
distribution. Based on this evidence, the district court did not err in
rejecting Pauley's contrary testimony.

D.

Pauley next argues that the district court erred in not reducing his
base offense level for acceptance of responsibility. We review a dis-
trict court's decision to grant or deny an adjustment for acceptance of
responsibility for clear error. United States v. Ruhe, 191 F.3d 376, 388
(4th Cir. 1999).

Under USSG § 3E1.1, "[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense," he qualifies for a two
level reduction in his offense level. "[M]erely pleading guilty is not
sufficient to satisfy the criteria for a downward adjustment for accep-
tance of responsibility." United States v. Nale, 101 F.3d 1000, 1005
(4th Cir. 1996). Although a defendant is not required to volunteer
information, "a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility." USSG
§ 3E1.1.

Pauley has failed to demonstrate his entitlement to a reduction for
acceptance of responsibility. We have today upheld, in the face of
Pauley's denials, the district court's determinations regarding the
quantity of drugs attributable to him as relevant conduct. Moreover,
Pauley has sought to characterize his involvement in the multiple
thefts as significantly less than the facts revealed. Finally, he contin-
ues to deny his culpability for the execution-style double murder of
Leonard Watts and Christy Alberts, asserting that the death of Christy
Alberts was the result of an accidental firing, and denying any recol-
lection of the killing of Leonard Watts. This is not acceptance of
responsibility. The district court did not err.

E.

We next consider whether Pauley was sentenced in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Because Pauley failed
to challenge the indictment or his sentence before the district court,

10
our analysis is governed by Federal Rule of Criminal Procedure
52(b), which provides that "[p]lain errors or defects affecting substan-
tial rights may be noticed although they were not brought to the atten-
tion of the court." See United States v. Olano, 507 U.S. 725, 731-32
(1993). Under Olano, Pauley must demonstrate that error occurred,
that the error was plain, and that the error affected his substantial
rights. Id. Even then, "correction of the error remains within our
sound discretion, which we should not exercise . . . unless the error
seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings." United States v. Hastings, 134 F.3d 235, 239 (4th
Cir. 1998) (alteration in original) (quoting Olano, 507 U.S. at 732).

In this case, the indictment to which Pauley pleaded guilty, charg-
ing him with aiding and abetting the possession with intent to distrib-
ute methamphetamine and marijuana in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2, did not specify any threshold quantity
of drugs. At sentencing, the district court found Pauley responsible for
a quantity of drugs equivalent to 456.25 kg of marijuana, subjecting
Pauley to a statutory range—consistent with the plea agreement—of
5 to 40 years. See 21 U.S.C. § 841(b)(1)(B). Applying the murder
cross-reference, the district court sentenced Pauley to 40 years.

In United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en
banc), we held that Apprendi mandated that specific threshold drug
quantities "be treated as elements of aggravated drug trafficking
offenses" and, therefore, charged in the indictment and submitted to
the jury. Failure to do so, we held, was plain error. Id. at 159-60. The
Promise court further held that a sentence resulting from the error
affects a defendant's substantial rights if the defendant can demon-
strate that his sentence exceeded that to which he would have been
subject had he been sentenced pursuant to the offense actually
charged in the indictment, viz., 20 years pursuant to 21 U.S.C.
§ 841(b)(1)(C). Id. at 160; United States v. Angle, 254 F.3d 514, 518
(4th Cir. 2001).

Soon after, we held in United States v. Cotton that the error we
identified in Promise "seriously affect [s] the fairness, integrity or
public reputation of judicial proceedings" and consequently exercised
our discretion to notice the error. Cotton, 261 F.3d at 404 (quoting
Olano, 507 U.S. at 736); see also United States v. Dinnall, 269 F.3d

11
418, 422 (2001) (applying Cotton in case where the defendant
pleaded guilty).

We follow Apprendi, Promise, and Cotton and exercise our discre-
tion to notice the plain error in Pauley's sentence. Pauley received 40
years imprisonment; the maximum sentence he could have received
was 20 years. The district court therefore erred in sentencing Pauley
to a term of imprisonment in excess of 20 years.

III.

Accordingly, we vacate and remand for resentencing with instruc-
tions to sentence Pauley to a term of imprisonment not to exceed 20
years. Finding no other error, we otherwise affirm.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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