United States v. Sullivan

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4601
SEAN THOMAS SULLIVAN, a/k/a Rico,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4610
KENNETH ADRIAN CAMPBELL, a/k/a
Kenny, a/k/a Kac,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Beaufort.
Sol Blatt, Jr., Senior District Judge.
(CR-00-263)

Argued: October 25, 2005

Decided: July 11, 2006

Before WIDENER, KING, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published per
curiam opinion in which all judges of the panel concurred. Judge
Widener wrote a concurring and dissenting opinion. Judge King wrote
a concurring opinion, in which Judge Duncan joined.
2 UNITED STATES v. SULLIVAN
COUNSEL

ARGUED: Rosemary Curran Scapicchio, Boston, Massachusetts;
Kathrine Haggard Hudgins, Columbia, South Carolina, for Appel-
lants. Robert Hayden Bickerton, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee. ON BRIEF: Edwin W. Rowland, Hil-
ton Head Island, South Carolina, for Appellant Sean Thomas Sulli-
van. J. Strom Thurmond, Jr., United States Attorney, Nancy C.
Wicker, Assistant United States Attorney, Columbia, South Carolina,
for Appellee.

OPINION

PER CURIAM:

Pursuant to the following opinions of Judge Widener and Judge
King, the convictions of the defendants are hereby affirmed, and their
sentences are hereby vacated. Judge Widener’s opinion in these
appeals, to the extent that it affirms the convictions of the defendants,
is joined by Judge King and Judge Duncan. Judge King’s separate
opinion, which agrees with the result reached by Judge Widener as to
Sullivan’s sentence, but for different reasons, addresses the sentenc-
ing issues only, vacates both defendants’ sentences, and remands for
resentencing. It is joined by Judge Duncan. Judge Widener agrees in
the result reached by Judge King as to Sullivan’s sentence, but for the
reasons expressed in his opinion. He dissents from Judge King’s opin-
ion and the result there reached as to the sentencing of Campbell.

The convictions of Sean Thomas Sullivan and Kenneth Campbell
are thus affirmed, their separate sentences are vacated, and these cases
are remanded to the district court for such other and further sentenc-
ing proceedings as may be appropriate.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
 UNITED STATES v. SULLIVAN 3
WIDENER, Circuit Judge, concurring and dissenting:

This case presents the consolidated appeals of defendants Sean
Thomas Sullivan and Kenneth Adrian Campbell. Sullivan and Camp-
bell were convicted on a number of charges related to their involve-
ment in a criminal drug conspiracy to distribute cocaine base,
commonly known as crack, which took place in and near Beaufort
County, South Carolina.

Both Sullivan and Campbell appeal their convictions. While their
appeals were pending, the Supreme Court decided United States v.
Booker, 543 U.S. 220 (2005), which held that the United States Sen-
tencing Guidelines were advisory rather than mandatory, and that
facts used to enhance a defendant’s sentence must be found by a jury
or admitted by the defendant by way of guilty plea or otherwise. Sul-
livan and Campbell added a Booker claim to their appeals and filed
supplemental briefs. We affirm the convictions. We vacate Sullivan’s
sentence and remand for resentencing, I for reconsideration in light
of United States v. Booker and United States v. White, 405 F.3d 208
(4th Cir. 2005), Judge King and Judge Duncan for reasons expressed
in Judge King’s separate opinion. I would affirm Campbell’s sen-
tence, Judge King and Judge Duncan would vacate and remand that
also for the reasons expressed in Judge King’s separate opinion.

I.

This case revolves around a drug conspiracy in and near Beaufort
County, South Carolina that existed from 1996 through July 2001.
During this period, the defendants and others cooperated with Camp-
bell to take over the distribution of crack cocaine in that neighbor-
hood.

The conspiracy unraveled when law enforcement agents were able
to make a number of undercover purchases of crack cocaine from sev-
eral of the conspirators, including Sullivan. Sullivan was arrested at
or near the last of these transactions, and arresting officers then dis-
covered a 9mm Glock pistol on his person. This pistol had had some
of its serial numbers, including the primary one on the frame of the
pistol, removed.
4 UNITED STATES v. SULLIVAN
The 49-count Third Superseding Indictment, which was the one
brought to trial, was filed on July 12, 2001. This indictment named
11 people, including the two defendants in the present appeal, as
members of the crack distribution conspiracy.

Of the various charges in the indictment, Campbell was convicted
of Count 1 with conspiracy to possess with intent to, and to distribute,
50 grams or more of crack, and in Count 49 with conspiring to pos-
sess firearms in furtherance of the drug trafficking crime set forth in
Count 1 of the indictment.

Sullivan was likewise convicted of counts 1 and 49. Additionally,
Sullivan was convicted of Counts 29, 30 and 31 with the distribution
of less than five grams of cocaine base, of Count 32 with the posses-
sion, with intent to distribute, more than five grams of crack, of Count
34 with using and carrying a firearm in relation to a drug trafficking
crime; and of Count 35 with possession of a firearm with an obliter-
ated serial number. Sullivan was eventually convicted of Counts 1,
29, 30, 31, 32, 34, 35, and 49.

The trial of the defendants, along with seven of their co-defendants,
began on August 13, 2001, and testimony concluded on August 29,
2001. The jury found both Campbell and Sullivan guilty on Septem-
ber 15, 2001.

At trial, many of the witnesses were members of the conspiracy
who had agreed to plead guilty and were cooperating with the govern-
ment in exchange for reduced sentences. These witnesses provided
testimony regarding the supplier-dealer organization and other details
of operation of the conspiracy, the identities of other conspirators,
including Campbell, and similar information. When eliciting this tes-
timony, the government introduced into evidence the agreements it
had made with these witnesses.

On March 4 and March 5, 2003, the district court held a sentencing
hearing and found that Sullivan and Campbell had participated in the
February 1999 murders of Toby Bing and Elshawndra Jones.

The district court imposed life sentences on both defendants on
July 15, 2003. The court determined that Campbell’s drug crime
 UNITED STATES v. SULLIVAN 5
involved 1,858 grams of crack cocaine. Additionally, the court
imposed a sentencing enhancement for the murders of Bing and
Jones. Finally, the district court applied a four level enhancement,
finding that Campbell was a leader of the drug distribution ring.

Similarly, in sentencing Sullivan, the district court relied at least
partially upon the testimony at sentencing to apply the murder cross-
reference. Additionally, the district court determined that Sullivan
was responsible for the distribution of 720 grams of crack. These
enhancing facts were not determined by the jury at trial.

Sullivan argues that the government failed to produce sufficient
evidence to sustain the drug conspiracy and other charges against
him. Additionally, while the appeal was pending, the Supreme Court
decided United States v. Booker. Due to the effect of that case on this
appeal, the parties filed supplemental briefing on the effect of Booker
on their sentences.

II.

A.

The federal Sentencing Guidelines were adopted in order to bring
more uniformity and predictability to criminal sentences. The Guide-
lines assigned a numerical value, called the base offense level, to each
criminal offense, and, as well, assigned the defendant to one of six
criminal history categories. Additionally, the base offense level could
be adjusted upward or downward based upon findings made by the
court at sentencing.

As stated, the Supreme Court decided United States v. Booker,
which held that mandatory application of the Sentencing Guidelines
was unconstitutional, as that application violated the defendants’
Sixth Amendment right to have the facts upon which a sentencing
was based to be found beyond a reasonable doubt by a jury when it
exceeded the sentence which might have been awarded upon only the
jury verdict. We have determined that in the ordinary case the proper
application of Booker is to affirm sentences that are within the statu-
torily prescribed range and are reasonable, United States v. Hughes,
6 UNITED STATES v. SULLIVAN
401 F.3d, 540, 546-47 (4th Cir. 2005); and to vacate and remand man-
datory guideline sentences when the guideline range involves extra-
verdict enhancement. White, 405 F.3d at 222.

B.

There follows an analysis of Campbell’s and Sullivan’s eligibility
for sentencing in view of the jury verdict and without other fact-
finding by the court except previous convictions.

Campbell was convicted under Count 1, 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A)(iii) and § 846 of a conspiracy to distribute more than
50 grams of cocaine base. Because the jury did not determine the
quantity beyond that contained in the indictment, under Booker we
use only 50 grams in basic calculation of his sentence. This would
result in a base offense level of 32 under USSG § 2D1.1(c)(4).1
Campbell’s firearms conspiracy conviction in count 49, 18 U.S.C.
§ 924(o), carries a base offense level of 24 under USSG § 2K2.1(a)(2)
because, according to the presentence report, he has at least two quali-
fying prior convictions.

Additionally, Campbell had a number of prior criminal convictions,
including criminal sexual conduct with a minor and accessory after
the fact to robbery, which are felonies and crimes of violence under
the definition in USSG § 4B1.2. These convictions are sufficient to
qualify him as a career offender under USSG § 4B1.1.2 As a career
(Text continued on page 8)

1
These references are to the 2001 edition of the Guidelines Manual,
which was used in the district court’s sentencing of the defendants.
2
“Campbell did not object to this classification in his objections to the
pre-sentence report. He does not object to the classification in his brief
in this court.
At the sentencing hearing, the district court heard Campbell’s numer-
ous objections to his pre-sentence report raised by his attorney. Page ref-
erences are to the sentencing transcript (ST) unless otherwise indicated.
The first was to the information in paragraphs six and seven, which
tied Campbell to Sabra Robinson, another figure in the drug conspiracy.
Lionel Lofton, Campbell’s attorney, acknowledged that he was stuck
with this by the jury verdict. (ST 448)
 UNITED STATES v. SULLIVAN 7
The second and third were to the calculation of the drug quantities
involved in Campbell’s conspiracy while Dorrine Green, a co-defendant,
was incarcerated. The probation officer made the requested changes
based on those objections. (ST 448)
Fourth, Campbell objected to the inclusion of paragraphs 20-47, which
concerned the murders of Bing and Jones. (ST 448) The district court
took this objection under advisement before ultimately applying the mur-
der cross-reference. Additionally, Campbell would object to later inclu-
sion of the cross-reference in paragraphs 53, 54 and 58 of his sentencing
calculations. (ST 451)
Fifth, Campbell objected to paragraph 48 of the pre-sentence report,
which contained the statement of Curtis Fields, a codefendant who was
cooperating with the government. (ST 448-49) This statement indicated
that Campbell had threatened Fields about "being a snitch," and related
to Count 46 of the indictment, in which Campbell was charged with tam-
pering with a witness by threatening Fields. (Campbell JA 56) Count 46
had been dismissed previously. The court declined to strike the para-
graph, but stated that it would not rely upon it in sentencing. (ST 449)
Sixth, Campbell challenged paragraph 51 of the report, which stated
his base offense level for drug quantities. Campbell complained that the
probation officer impermissibly calculated his drug liability using facts
not found by the jury.
Seventh were the objections to the inclusion of various prior criminal
charges in the pre-sentence report. Campbell objected to the inclusion of
paragraph 72 on the grounds that the charge was not substantiated, and
withdrew his objection when the probation officer indicated that she had
substantiated it. (ST 445) Similarly, he objected to paragraphs 75, 77, 78,
80, 81, 82, and 83 on the grounds that the criminal charges discussed in
those paragraphs were either dismissed or nolle prossed. (ST 451-53)
Finally, Campbell raised an objection to the determination in para-
graph 94 that his final offense level was 43, as it was based upon find-
ings such as the drug quantities and murder cross-reference that he had
previously objected to. (ST 453) The district court overruled this objec-
tion, stating that it believed that "there’s ample evidence" to support such
findings. (ST 453)
Campbell’s objections to the pre-sentence report ended with this:
Mr. Lofton: Bear with me just one minute and let me be sure I covered
everything. (Pause)
8 UNITED STATES v. SULLIVAN
offender, Campbell receives a base offense level for his crime that is
determined by reference to the statutory maximum for the offense of
conviction. The statutory maximum for his violation of § 841 is life
imprisonment. 21 U.S.C. § 841(b)(1)(A). This results in a base
offense level of 37 under USSG § 4B1.1. With a base offense level
of 37 and a criminal history category of VI, the guidelines range is
360 months to life in prison. USSG Ch.5 Pt.A. For Campbell’s fire-
arms conspiracy conviction, Count 49, the statutory maximum for his
violation of § 924(o) is 20 years’ imprisonment, which results in a
base offense level of 32 under USSG § 4B1.1, with sentence eligibil-
ity of 210-262 months, which is reduced to 240 months by the statu-
tory maximum. USSG § 5G1.1(c).

Thus, Campbell’s total sentence eligibility was 570 months to life.

Sullivan was also convicted with Campbell of the Count 1 conspir-
acy to distribute more than 50 grams of cocaine base. The amounts
of crack cocaine involved in his various other drug trafficking convic-
tions, Counts 29, 30, 31 and 32, were a total less than 20 but more
than 5 grams, which, when added to the 50 grams of Count 1, under
USSG § 2D1.1, Application Note 6, yield a total quantity of cocaine
base of more than 55 but less than 75 grams. Sullivan’s base offense
level for this amount of cocaine base conviction is 32. USSG
§ 2D1.1(c)(4). No two level enhancement is given for the possession
of a firearm during these distribution offenses because that possession
will be accounted for in Sullivan’s sentence under USSG § 2K2.4,
Application Note 2.

Sullivan’s base offense level for Count 35, (the obliterated serial
numbers) violation of 18 U.S.C. §§ 922(k) and 924(a)(1), and Count
49, (conspiracy to use a firearm in the execution of the Count 1 con-
spiracy) violation of 18 U.S.C. § 924(o), is 18. This represents a start-
ing level of 12 under USSG § 2K2.1(a)(7) for Count 49, to which is
added a two level increase under USSG § 2K2.1(b)(4) for his convic-
tion in Count 35, possession of a firearm with an obliterated serial

Mr. Lofton: That’s all I have, your Honor.
The Court: All right, sir. (Record Vol. III, ST 455)
 UNITED STATES v. SULLIVAN 9
number, and also a four level increase under § 2K2.1(b)(5) for pos-
sessing the firearm in connection with another felony, as he was con-
victed of Count 34. The jury was instructed they could not convict
under Count 34 unless they convicted under Count 31 or Count 32.
They convicted of both. So both of these increases are sustained by
the facts found by the jury. We have not double counted Counts 35
and 49 for the initial starting level of 12.

Also, Sullivan is subject to a mandatory minimum additional sen-
tence for his conviction of Count 34, a violation of 18 U.S.C.
§ 924(c), for his use of the firearm in connection with another crime.
18 U.S.C. § 924(c)(1)(A) calls for a mandatory minimum additional
sentence of five years’ imprisonment for an individual who uses or
carries a firearm in connection with a drug trafficking crime, as Sulli-
van did. It is mandatory that this sentence run consecutively to any
sentences imposed for the trafficking offenses. 18 U.S.C.
§ 924(c)(1)(D)(ii).

Sullivan has had no prior felony convictions, resulting in a criminal
history category of I. Accordingly, the Sentencing Guidelines ranges
for his convictions are 121-151 months for the drug convictions, 27-
33 months for the firearms convictions in Counts 35 and 49, and 60
months for the firearms conviction in Count 34, for a total potential
maximum of 244 months.

Accordingly, the maximum sentence that Campbell may receive
based solely on the jury verdict is life imprisonment, while Sullivan
may receive a maximum sentence of 244 months.

III.

At the sentencing hearing, the district court, as it was required to
do, operating under the pre-Booker guidelines sentencing scheme,
conducted its own fact-finding in order to arrive at Campbell and Sul-
livan’s sentences.

For Campbell, the district court determined that Campbell was
responsible for the murders of Toby Bing and Elshawndra Jones, and
applied the first degree murder cross reference found at USSG
10 UNITED STATES v. SULLIVAN
§ 2D1.1(d)(1), resulting in a base offense level of 43, under USSG
§ 2A1.1, which is an automatic life sentence under the Guidelines.
USSG Ch.5, Pt.A. The district court sentenced Campbell to life
imprisonment on Count 1 and additionally imposed a concurrent sen-
tence of 240 months for Count 49, the firearms conspiracy charge.
Ruling in the alternative, the court found that, should the murder
cross-reference be disallowed, the drug quantity involved for Camp-
bell was 1,858 grams of cocaine base. Using 1,858 grams of cocaine
base presents a base offense level of 38 under USSG § 2D1.1(c)(1).
Further, the court found that a dangerous weapon was possessed, and
so added two levels under USSG § 2D1.1(b)(1). It also found that
Campbell was an organizer or leader of the conspiracy, which adds
four levels under USSG § 3B1.1(a), for a total offense level of 44.
Offense levels higher than 43 are treated as identical to 43 for sen-
tencing purposes. USSG Ch.5, Pt.A, Application Note 2. Accord-
ingly, the district court issued an alternate sentence of life
imprisonment based on its findings regarding the drug quantities,
leadership role, and firearms possession.

For Sullivan, the district court applied the same murder cross refer-
ence, found a base offense level of 43, and sentenced Sullivan to life
imprisonment for the drug conspiracy with the murder cross refer-
ence. Additionally, the district court imposed concurrent sentences of
240 months for Counts 29, 30, 31 and 49, a concurrent sentence of
360 months for Count 32, a concurrent sentence of 60 months for
Count 35, and the mandatory additional consecutive sentence of 60
months for Count 34. In the alternative, the court determined that Sul-
livan was responsible for the distribution of 720 grams of cocaine
base. This amount produces a base offense level of 36 under USSG
§ 2D1.1(c)(2), which has a sentencing range of 188 to 235 months
under the Guidelines. The district court imposed the high end of the
range, 235 months, for the drug charges, a concurrent sentence of 60
months for Count 35, and an additional consecutive sentence of 60
months for Sullivan’s conviction in Count 34, for a total alternative
sentence of 295 months.

Campbell’s Case

As we have noted, United States v. Booker, 543 U.S. 220 (2005),
was decided while this case was pending in this court, both Campbell
 UNITED STATES v. SULLIVAN 11
and Sullivan having been sentenced prior to January 12, 2005, the
date of the Booker decision.

The principal holding of Booker which we consider is

Any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.

543 U.S. at 244.

We are of opinion and hold there is no reversible error in the impo-
sition of a sentence of life imprisonment on Campbell.

As we have related, Campbell was sentenced to life imprisonment
under the then mandatory Guidelines sentencing scheme, using the
first degree murder reference of USSG § 2D1.1(d)(1). After finding,
among other things, that Campbell was responsible for 1,858 grams
of cocaine base and that Campbell was an organizer or leader of the
drug conspiracy, which added four levels to his basic sentencing
level, and that a dangerous weapon was possessed, for which the dis-
trict court added two additional levels to his basic sentencing level,
the district court also imposed an alternate sentence of life imprison-
ment, should its sentence upon the murder reference be vacated.

We must vacate each of those two life sentences imposed on
Campbell because each of them depended on facts other than prior
convictions, necessary to support the sentence imposed and not estab-
lished by a plea of guilty, or admission otherwise, or jury verdict. The
murder reference was supported by facts, largely found by the district
court at the sentencing hearing, relating to the murder of Bing and
Jones, the rival drug dealers, and was established largely, even if not
wholly, by the witnesses at the sentencing hearing and, in any event,
had not been found by the jury. The same defect in a different form
applies to the alternate sentence of life imprisonment imposed by the
district court which is based in significant part on the finding of the
district court that Campbell was responsible for 1,858 grams of
12 UNITED STATES v. SULLIVAN
cocaine, and that Campbell was an organizer or leader of the drug
conspiracy, which added four levels to Campbell’s basic sentencing
level. Neither the murder of Bing and Jones nor the organizer/leader
question was considered by the jury. So, standing alone, those life
sentences were subject to being vacated under the rule in Booker
stated just above.

As we have demonstrated, however, using only the facts found by
the jury, Campbell was, nevertheless, eligible for a life sentence. The
jury found that Campbell was guilty of a conspiracy, as indicated in
Count 1, to distribute more than 50 grams of cocaine base. The jury
also found that Campbell was guilty of the firearms conspiracy under
Count 49. Campbell, without objection to these parts of his presen-
tence report, was found to have been previously found guilty of at
least two felonies, which are crimes of violence which qualify him as
a career offender under USSG § 4B1.1, resulting in a criminal history
category of VI with a range of punishment of 360 months to life in
prison under USSG Ch.5 Pt.A. All of these necessary facts for the
imposition of a life sentence on Campbell were either found by the
jury or were previous convictions, the latter a self-imposed exclusion
of Booker upon its effect originating in Apprendi v. New Jersey, 530
U.S. 466 (2000).

In the case of United States v. Hughes, 401 F.3d 546-47 (4th Cir.
2005), we reasoned, following the decision in Booker

In light of the excision of § 3742(e) by the Supreme Court,
we will affirm the sentence imposed as long as it is within
the statutorily prescribed range, see Apprendi, 530 U.S. at
490, and is reasonable, see Booker, 125 S.Ct. at 767.

The sentence imposed in this case, which we examine, was a life
sentence imposed on Campbell. This life sentence is within the statu-
torily prescribed range. The sentence is within the Guidelines range
of life imprisonment, and the sentence is reasonable. That is shown
by our decision in United States v. Green, 436 F.3d 449, 456-57 (4th
Cir. 2006), which holds that a sentence which is within the Guidelines
range is presumed to be reasonable in the context of the meaning of
reasonable in the Booker case. That same presumption is followed in
terms in four other circuits, in United States v. Williams, No. 05-5416
 UNITED STATES v. SULLIVAN 13
(6th Cir. 2006); United States v. Newsom, 428 F.3d 685, 687 (7th Cir.
2005); United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005);
United States v. Mykytiuk , 415 F.3d 606, 608 (7th Cir. 2005); and
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2005); and in
principle in the Eleventh Circuit, United States v. Talley, 431 F.3d
784, 786-87 (11th Cir. 2005), but rejected in the First Circuit in
United States v. Jiminez-Beltre, No. 05-1268 (1st Cir. 2006); and the
Second Circuit in United States v. Fernandez, 443 F.3d 19, 26-28
(2nd Cir. 2006). We are thus of opinion that the said sentence so
imposed was reasonable upon examination of the record and applica-
tion of the presumption in Green we have just referenced.

Because the Court, in the case of Williams v. United States, 503
U.S. 193 (1992), decided a split in the circuits, on the question that

When one or more of the stated grounds for departure is
invalid, [may an] appellate court . . . affirm if sentence is
still reasonable in light of remaining factors.

503 U.S. at 193,

the Court reasoned, at p.204

A sentence can thus be "reasonable" even if some of the rea-
sons given by the district court to justify the departure from
the presumptive guidelines range are invalid, provided that
the remaining reasons are sufficient to justify the magnitude
of the departure.
(Quotations in original.)

The action of the district court in this case exceeds the require-
ments of Williams. A life sentence is permissible and within the
Guidelines range, so the presumptive Guidelines range is not invalid.
The district court, while it imposed the life sentence for a different
reason, did not violate the Guidelines, and the presumption from New-
som we have followed in Green requires affirmance.

Sullivan’s Case

Sullivan’s life sentence must be vacated because it is based on the
same murder reference as was Campbell’s with respect to the killing
14 UNITED STATES v. SULLIVAN
of Bing and Jones, which was not found by the jury but by the district
court. The alternate sentence of Sullivan of 295 months is based
largely, even if not wholly, on the finding of the district court that
Sullivan was responsible for 720 grams of cocaine base, a fact found
by the district court but not by the jury. Sullivan’s alternate sentence
of 295 months exceeds his maximum eligible sentence of 244 months
for matters considered by the jury or otherwise admitted. Thus, appli-
cation of facts not found by the jury have had "a prejudicial effect on
the outcome of a judicial proceeding." White, 405 F.3d at 223.

Sullivan’s sentence must be vacated and his case remanded for
resentencing.

IV.

Apart from the sentencing questions, the defendants have raised the
following questions with respect to their convictions, which we
address in turn.

A.

Campbell argues that statements introduced at trial and made by his
co-conspirators were barred by Crawford v. Washington, 541 U.S. 36
(2004); that the government’s introduction of proffer letters3 and plea
agreements of various cooperating defendants was improper; and that
the district court failed to give a jury instruction concerning multiple
conspiracies.

Campbell first challenges the introduction of testimony by various
government witnesses with respect to Campbell’s involvement in the
drug conspiracy. These statements, Campbell argues, are testimonial
in nature and thus barred by Crawford. The statements objected to
were largely observations about the involvement of various other
members of the conspiracy in the sale of drugs, such as repeating that
other conspirators told the witness that they had purchased drugs from
Campbell. While such statements may well have been admissible evi-
3
A proffer letter is an agreement between the government and a defen-
dant which refers to and, in fact, is a part of, an agreement to plead guilty
made between the government and a defendant.
 UNITED STATES v. SULLIVAN 15
dence as statements by a co-conspirator during the course of and in
furtherance of the conspiracy, see Fed. R. Evid. 801(d)(2)(E), they are
not testimonial statements under Crawford. ". . . [N]ot testimonial —
for example, [are] . . . statements in furtherance of a conspiracy."
Crawford, 541 U.S. at 56. Not being testimonial statements, that evi-
dence against Campbell was admissible, and we so hold. Accord:
Delaney v. United States, 263 U.S. 586, 590 (1924).

Campbell also contends that the introduction into evidence of wit-
nesses’ plea agreements and proffer letters, along with references to
them in closing argument, violated due process and his right to a fair
trial. We do not agree.

The proffer letters do not place an overemphasis on whether the
witness is telling the truth. Importantly, the district court correctly
instructed the jury that it should weigh with caution the testimony of
someone who has entered into a plea agreement with the government
for immunity from punishment or personal advantage. The jury
instruction stated that the testimony of such informers "must also be
considered by you and weighed with great care, more so than the tes-
timony of an ordinary witness. . . . [Y]ou must determine if an
informer’s testimony has been affected by the immunity which has
been provided for him." The district court gave similar instructions
for those who entered into plea agreements. The court instructed the
jury that such a witness "has a motive to testify falsely." Those
instructions serve to negate any implication that the witnesses were
somehow more trustworthy for having entered into plea agreements
with the government and were correctly given.

Regarding the introduction of the plea agreements, we have held
that "it is generally recognized that the existence of a plea agreement
may be elicited by the prosecutor on direct examination so that the
jury ‘may assess the credibility of the witness.’" United States v. Hen-
derson, 717 F.2d 135, 137 (4th Cir. 1983). A prosecutor may neither
vouch for nor bolster the testimony of a government witness in argu-
ments to the jury. United States v. Sanchez, 118 F.3d 192, 198 (4th
Cir. 1997). "Vouching occurs when the prosecutor indicates a per-
sonal belief in the credibility or honesty of a witness; bolstering is an
implication by the government that the testimony of a witness is cor-
16 UNITED STATES v. SULLIVAN
roborated by evidence known to the government but not known to the
jury." Sanchez, 118 F.3d at 198.

Campbell argues that the government vouched for the plea agree-
ments by stating in oral argument that "[i]t should be clear that the
witness has far more of an incentive to tell the truth than to lie." This
statement, however, does not fit the definition of either vouching or
bolstering. It cannot be vouching, since the AUSA made no statement
about her personal belief in the truth of the statement, only that, given
the circumstances of a plea agreement, she argued that it is more in
the subject’s interest to be honest than to be dishonest. Likewise, it
cannot be considered bolstering, as it does not refer to evidence not
presented to the jury.

Finally, Campbell argues that the district court failed to instruct the
jury on multiple conspiracies. Campbell claims the evidence at best
showed multiple conspiracies, and not a single, unified one.

In its instructions to the jury, the district court instructed the jurors
that

the Government charged a particular conspiracy, and
they’ve got to prove . . . that he was a member of the con-
spiracy charged in the indictment. And if they don’t prove
that, then you got to find him not guilty, even if you find
that he was a member of some other conspiracy not charged
in the indictment.

The district court continued that

[p]roof that a Defendant was a member of some other con-
spiracy is not enough to convict unless the Government also
proves beyond a reasonable doubt that the Defendant was a
member of the conspiracy charged in the indictment.

Campbell argues that there was evidence of other drug conspiracies
operating in the South Carolina-Georgia community in addition to the
conspiracy charged in the indictment and that an instruction with
respect to multiple conspiracies should have been given in a different
 UNITED STATES v. SULLIVAN 17
form than the one given by the district court. We are of opinion the
instruction given by the district court, the essence of which we have
quoted above, was correct and fair. We note especially that the district
court gave a finding instruction in favor of Campbell if the govern-
ment did not prove that "he was a member of the conspiracy charged
in the indictment," he should be found not guilty.

We conclude that there was no error in Campbell’s case under
Crawford v. Washington; or the district court’s instruction to the jury
with respect to multiple conspiracies; or the introduction of proffer
letters and plea agreements, either plain or otherwise.

B.

Sullivan challenges the sufficiency of the evidence upon which the
jury based its conviction under Counts 34 and 49 of 18 U.S.C.
§ 924(c) for use and possessing a firearm in relation to a drug traffick-
ing crime; under § 924(o) for conspiracy to do the same; and under
18 U.S.C. § 922(k), Count 35, for knowingly using and possessing a
firearm with an obliterated serial number.

Where the error charged, as here, is insufficiency of the evidence
to support the verdict, the verdict will be sustained if, when the evi-
dence is viewed in the light most favorable to the government, there
is substantial evidence to support it. Glasser v. United States, 315
U.S. 60, 80 (1942). "[S]ubstantial evidence is evidence that a reason-
able finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt."
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

18 U.S.C. § 924(c)(1)(A) provides that an individual who "during
and in relation to any . . . [federal] drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime, possesses
a firearm" is subject to criminal punishment. In order to establish a
violation of § 924(c), the evidence must tend to show that the firearm
"furthered, advanced, or helped forward a drug trafficking crime."
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). A trier of
fact might include, for example, in its consideration whether the fire-
arm furthered the drug crime by considering "‘the type of drug activ-
ity that is being conducted, accessibility of the firearm, the type of
18 UNITED STATES v. SULLIVAN
weapon . . . whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found.’" Lomax, 293 F.3d at 705 (quoting United States v. Ceballos-
Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). Moreover, jurors are
allowed to make common sense conclusions when drugs and firearms
are found together due to the "unfortunate reality that drugs and guns
all too often go hand in hand." Lomax, 293 F.3d at 706. A mere acci-
dental or coincidental presence of a gun is not enough to satisfy this
requirement; but, if its purpose is to protect or embolden the defen-
dant, the statute is satisfied. United States v. Lipford, 203 F.3d 259,
266 (4th Cir. 2000) (citing United States v. Mitchell, 104 F.3d 649,
654 (4th Cir. 1997)).

Here, there is sufficient evidence in the record to establish that the
firearm that Sullivan possessed was in furtherance of his drug crimes.
Witnesses testified that Sullivan regularly carried a firearm with him
while he was selling drugs. For example, his co-defendant Rasheen
Cutter testified that he had seen Sullivan with firearms, "every day"
while Sullivan was selling drugs at an establishment named JB Club
2000. Likewise, Rosalind Hamilton, another co-defendant who had
traveled to Savannah, Georgia with Sullivan to purchase crack, testi-
fied that Sullivan carried a pistol with him "almost all the time."
These two witnesses both described one of Sullivan’s weapons as a
9mm, the same type of weapon that was seized from Sullivan’s per-
son when Sullivan sold a quantity of crack to Roser. Although there
is no evidence that Sullivan had brandished or fired that weapon, the
jury was entitled to find that Sullivan carried it for his personal pro-
tection, given the dangerous nature of crack distribution.

The trial testimony likewise was sufficient to support the jury find-
ing that there was a conspiracy between Sullivan and others, such as
Campbell, to possess firearms. Testimony introduced against Sulli-
van’s co-defendants revealed that they also regularly carried firearms.
Additionally, the jury determined that these co-defendants were
engaged in a crack distribution conspiracy with Sullivan. Taking this
evidence in the light most favorable to the government, the jury was
entitled to conclude that the possession of firearms, given the danger-
ous nature of the conspiracy, was a part of that conspiracy’s common
course of action.
 UNITED STATES v. SULLIVAN 19
18 U.S.C. § 922(k) makes it a crime "for any person knowingly . . .
to possess or receive any firearm which has had the importer’s or
manufacturer’s serial number removed, obliterated, or altered and has,
at any time, been shipped or transported in interstate or foreign com-
merce." The defendant must know of the alteration. United States v.
Haywood, 363 F.3d 200, 206 (3d Cir. 2003) (collecting cases).
Knowledge of defacement of the serial number may be inferred where
the defendant has possessed the gun under conditions under which an
ordinary man would have inspected the pistol and discovered the
absence of a serial number. See United States v. Moore, 54 F.3d 92,
101 (2d Cir. 1995). As we have related, a 9mm Glock was one of the
weapons of Sullivan and carried by him as he sold and trafficked in
drugs. The jury was entitled to find, as it did, that he was aware of
the removal of the serial number.

Additionally, the government presented the testimony of ATF Spe-
cial Agent Kelly, a specialist in the business and marketing of fire-
arms. The firearm, a Glock 9mm pistol, has serial numbers in several
locations. Agent Kelly identified the location of the primary serial
number on the frame of the pistol, and commented that "[t]hat is
gone. That serial number has been taken off of the firearm." Also, he
identified an area on the slide of the pistol that he said "may be a sec-
ondary location of the serial number." This mark was also obliterated.
On cross-examination, Agent Kelly also identified the location of a
serial number that remained intact on the barrel of the gun. Although
this number remained, we are of opinion that it does not establish that
the conviction was improper. Indeed, the statute does not require that
all serial numbers be obliterated.

From the testimony, a reasonable juror could conclude that,
because Sullivan regularly carried and possessed the weapon, he
would have been expected to have examined the weapon and discov-
ered, at least, that the primary serial number had been obliterated.

The last argument of Sullivan, that we need address only briefly,
is that his connection with the conspiracy charged in Count I is sup-
ported only by evidence of sales of drugs which, standing alone, do
not support his conviction. He relies on United States v. Mercer, 165
F.3d 1331 (11th Cir. 1999), for that proposition. While it is true that
Mercer does recite that a single sale of narcotics is not probative evi-
20 UNITED STATES v. SULLIVAN
dence of a conspiracy to deal in narcotics, even in Mercer evidence
of multiple sales comes to the opposite conclusion. In any event, our
decisions in United States v. Banks, 10 F.3d 1044 (4th Cir. 1993), and
United States v. Mills, 995 F.2d 480 (4th Cir. 1993), are more favor-
able to the government and would ordinarily admit evidence of sales
of narcotics as probative evidence of a conspiracy to deal in the same.
Because the decisions, both in this Circuit and in the Eleventh Circuit,
review the question of whether the evidence is relevant, at bottom
they are discretionary decisions in which the exercise of our discre-
tion is somewhat less favorable to Sullivan than is that of the Eleventh
Circuit. We are of opinion that, even stretched, a comparison of those
circuit decisions would not support any conclusion that there is a
marked difference in the circuits. We are of opinion that that argu-
ment by Sullivan is without merit and that the evidence to support his
conviction with respect to the conspiracy charged in Count 1 of the
indictment is ample.

While we affirm the convictions of both Campbell and Sullivan
and the sentence of Campbell, we vacate the sentence of Sullivan, as
earlier set forth in this opinion, and remand the same for resentencing.

KING, Circuit Judge, concurring:

In addition to challenging their convictions, the defendants, Sean
Thomas Sullivan and Kenneth Campbell, seek relief from the life sen-
tences imposed on them in the District of South Carolina in July 2003
under the then-mandatory Sentencing Guidelines regime.1 Sullivan
and Campbell repeatedly objected to the sentencing procedures uti-
lized by the court, contending that those procedures contravened the
constitutional principles enunciated by the Supreme Court in
Apprendi v. New Jersey, 530 U.S. 466 (2000). During the pendency
of these appeals, the Court decided Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005). In the
wake of those decisions, we now know that a sentencing court com-
mits statutory error if it treats the Guidelines as mandatory, rather
1
Judge Duncan and I are pleased to concur in Judge Widener’s opinion
in these appeals, insofar as it relates to the issues raised concerning the
defendants’ convictions. I write separately, with the concurrence of
Judge Duncan, on the sentencing issues only.
 UNITED STATES v. SULLIVAN 21
than as advisory. See Booker, 543 U.S. at 245-46; United States v.
White, 405 F.3d 208, 215 (4th Cir. 2005). As explained below, Sulli-
van and Campbell preserved their claims of such statutory error by
raising timely Apprendi objections at sentencing. Because the district
court committed statutory error in sentencing Sullivan and Campbell,
and its error was not harmless, we vacate the defendants’ sentences
and remand for resentencing.

I.

A.

Campbell was convicted on two charges: Count 1 for conspiracy
to possess with intent to distribute and to distribute fifty grams or
more of crack cocaine, in contravention of 21 U.S.C. § 846 (the "drug
conspiracy offense"); and Count 49 for conspiracy to use, brandish,
discharge, and possess firearms during and in relation to drug traffick-
ing crimes, in violation of 18 U.S.C. § 924(o) (the "firearms conspir-
acy offense"). Meanwhile, Sullivan was also convicted of Count 1 for
drug conspiracy and Count 49 for firearms conspiracy, and was fur-
ther convicted on six other charges: Counts 29, 30, and 31 for distri-
butions of less than five grams of crack, and Count 32 for possession
with intent to distribute more than five grams of crack, all in contra-
vention of 21 U.S.C. § 841 (collectively, the "drug distribution
offenses"); Count 34 for using and carrying of a firearm during and
in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (the "firearm use offense"); and Count 35 for pos-
session of a firearm with an obliterated serial number, in contraven-
tion of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (the "obliterated serial
number offense").

Campbell’s presentence report ("PSR") recommended a base
offense level of 38 on the drug conspiracy offense, predicated on the
finding that the offense involved 1.5 kilograms or more of crack
cocaine. See USSG § 2D1.1(c)(1) (2001). The PSR also advocated a
two-level enhancement for possession of a dangerous weapon, id.
§ 2D1.1(b)(1), and a four-level enhancement for being an organizer
or leader of the conspiracy, id. § 3B1.1(a), which would result in a
total offense level of 43 — the highest possible offense level under
the Guidelines (carrying with it a mandatory life sentence no matter
22 UNITED STATES v. SULLIVAN
the defendant’s criminal history category).2 The PSR further recom-
mended imposing the cross-reference for first-degree murder, result-
ing in a mandatory offense level of 43. Id. §§ 2A1.1, 2D1.1(d)(1).3
Campbell’s PSR therefore recommended assigning him a total offense
level of 43 on the Count 1 drug conspiracy offense.4 Finally, based
on the finding that he had at least two prior felony convictions of
either a crime of violence or a controlled substance offense, the PSR
characterized Campbell as a career offender and ascribed to him a
criminal offense history category of VI. Id. § 4B1.1.5

As for Sullivan, his PSR recommended a base offense level of 36
on the combined drug conspiracy offense and drug distribution
offenses, predicated on the finding that these offenses involved
between 500 grams and 1.5 kilograms of crack. See USSG
§ 2D1.1(c)(2) (2001). As recommended for Campbell, however, the
PSR proffered that Sullivan should be subject to the cross-reference
2
Significantly, a life sentence was authorized under the applicable
criminal statute for the Count 1 drug conspiracy offense. See 21 U.S.C.
§ 841(b)(1)(A).
3
The proposed murder cross-reference was based on evidence that Sul-
livan and Campbell were involved in the murders of rival drug dealers
Elshawndra Jones and Toby Bing in February 1999.
4
On the firearms conspiracy offense in Count 49, Campbell’s PSR rec-
ommended a base offense level of 24, predicated on the determination
that Campbell had at least two prior felony convictions of either a crime
of violence or a controlled substance offense. See USSG § 2K2.1(a)(2)
(2001). The PSR further recommended, however, that the firearms con-
spiracy offense be combined with the drug conspiracy offense, and that
Campbell be assigned the highest offense level of the counts in the
group, i.e., offense level 43. Id. §§ 3D1.2(c), 3D1.3(a).
5
Campbell’s classification as a career offender — to which he posed
no objections — required that his offense level on the drug conspiracy
offense in Count 1 be at least 37. See USSG § 4B1.1 (2001) (providing
that "[i]f the offense level for a career criminal from the table below is
greater than the offense level otherwise applicable, the offense level from
the table below shall apply," and setting forth an offense level of 37 for
a controlled substance offense — such as Campbell’s — with a statutory
maximum sentence of life). Of course, the PSR recommended an offense
level greater than 37 on the drug conspiracy offense predicated on other
findings and enhancements.
 UNITED STATES v. SULLIVAN 23
for first-degree murder and its corresponding offense level of 43. Id.
§§ 2A1.1, 2D1.1(d)(1).6 On the firearm use offense, the PSR main-
tained that Sullivan was subject to the minimum term of imprison-
ment required by the statute of conviction, 18 U.S.C. § 924(c), that
being not less than five years, consecutive to any other sentence
imposed. Id. § 2K2.4(a)(2). Lastly, the PSR assigned Sullivan a crimi-
nal history category of I.

B.

After receiving evidence on the proposed murder cross-references
in March and July of 2003, the sentencing court conducted a final
sentencing hearing on July 15, 2003. Throughout the sentencing pro-
ceedings, the defendants repeatedly contended — both orally and in
writing — that the court was constitutionally barred from finding
facts outside the jury’s verdict in applying the then-mandatory Guide-
lines. Sullivan and Campbell relied principally on the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(holding that, "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt"). The sentencing court correctly concluded, however, that the
defendants’ interpretation of Apprendi had previously been rejected
by this circuit in United States v. Kinter, 235 F.3d 192, 198-202 (4th
Cir. 2000).

Thus, during the final sentencing hearing on July 15, 2003, the dis-
6
On Sullivan’s combined firearms conspiracy offense in Count 49 and
obliterated serial number offense in Count 37, the PSR recommended a
base offense level of 12, see USSG § 2K2.1(a)(7) (2001), a two-level
enhancement for the obliterated serial number, id. § 2K2.1(b)(4), and a
four-level enhancement for use or possession of a firearm in connection
with another felony offense, id. § 2K2.1(b)(5). With these enhancements,
the total offense level on Sullivan’s combined firearms conspiracy
offense and obliterated serial number offense was 18. The PSR ulti-
mately recommended combining these counts with the drug conspiracy
and drug distribution offenses, and assigning Sullivan the highest offense
level of all the counts in the group, i.e., offense level 43. Id. §§ 3D1.2(c),
3D1.3(a).
24 UNITED STATES v. SULLIVAN
trict court found, by a preponderance of the evidence, the facts neces-
sary to justify application of the PSRs’ recommended sentencing
enhancements. And the court acknowledged that it was "required to
follow the law as set forth in the Guidelines, whether I agree with
those Guidelines, along with whether I think they’re good or bad."
Sullivan J.A. 855.7 That is, the court recognized that it was con-
strained to follow the then-mandatory Guidelines regime.

The court calculated Campbell’s total offense level on the drug
conspiracy offense as the maximum of 43, either by (1) imposing the
murder cross-reference or (2) setting his base offense level at 38,
predicated on the finding that the offense involved 1,858 grams of
crack cocaine, and then applying the two-level enhancement for pos-
session of a dangerous weapon and the four-level enhancement for
being an organizer or leader of the drug conspiracy. See Sullivan J.A.
902-03 ("I just want the record to show that . . . in the event that I
was in error in cross-referencing the murder, that because of the drug
amount and because of his total Offense Level and Criminal History,
that the identical sentence would be imposed by the Court."). Camp-
bell thus faced a mandatory life sentence on the drug conspiracy
offense no matter his criminal history category, which the court desig-
nated as VI. The court imposed a life sentence on Campbell on the
drug conspiracy offense, as well as a concurrent sentence of twenty
years on the firearms conspiracy offense.

The sentencing court similarly determined that Sullivan deserved
the murder cross-reference and a mandatory life sentence on the drug
conspiracy offense. The court imposed a life sentence on Sullivan on
that offense, in addition to lesser concurrent sentences on the other
drug and firearms offenses, and the mandatory five-year (i.e., sixty-
month) consecutive sentence on the Count 34 firearm use offense.
The court observed that if the murder cross-reference did not apply,
Sullivan would not face a life term. Instead, the court announced that
Sullivan would have a base offense level of 36 on the drug conspiracy
offense, predicated on the finding that he was responsible for 720
grams of crack. With a criminal history category of I, the resulting
sentencing range would be 188 to 235 months of imprisonment on the
7
Our citations to "Sullivan J.A. —" refer to the contents of the Joint
Appendix filed by Sullivan and the Government in Sullivan’s appeal.
 UNITED STATES v. SULLIVAN 25
drug conspiracy offense (and other combined counts), for a total sen-
tence of 248 to 295 months including the mandatory consecutive 60-
month sentence on the firearm use offense. The court stated that
absent the murder cross-reference it would have sentenced Sullivan
to a total 295 months of imprisonment. Sullivan J.A. 923.

II.

During the pendency of these appeals, the Supreme Court issued its
decisions in Blakely v. Washington, 542 U.S. 296 (2004) (holding that
the State of Washington’s mandatory sentencing guidelines contra-
vened the Sixth Amendment), and United States v. Booker, 543 U.S.
220 (2005) (applying Blakely principles to the federal Sentencing
Guidelines). Under Booker, there are two types of error. First, Sixth
Amendment error occurs when a sentencing court enhances a defen-
dant’s sentence beyond the maximum authorized by facts found by a
jury beyond a reasonable doubt or admitted by the defendant. See
Booker, 543 U.S. at 245; United States v. White, 405 F.3d 208, 215
(4th Cir. 2005). Second, statutory error occurs when a sentencing
court treats the Guidelines as mandatory, rather than as advisory. See
Booker, 543 U.S. at 245-46; White, 405 F.3d at 215. Because we con-
clude that the district court committed reversible statutory Booker
error in sentencing both Sullivan and Campbell, we need not reach the
issue of whether Sixth Amendment error also occurred.8
8
Although we do not decide the Sixth Amendment issue, we observe
that the Government initially conceded that such error occurred in sen-
tencing both Sullivan and Campbell. The Government’s concessions of
Sixth Amendment error followed the defendants’ assertions that — with-
out any improper fact-finding by the court — Campbell’s offense level
on the drug conspiracy offense would have been 32 (resulting in a sen-
tencing range of 210 to 262 months) and Sullivan’s offense level on that
same count also would have been 32 (carrying a sentencing range of 121
to 151 months). Cf. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005) (recognizing that Sixth Amendment error occurred when maxi-
mum Guidelines sentence authorized by jury verdict was twelve months,
but court imposed forty-six-month sentence). During oral argument,
however, the Government sought to withdraw its concession with respect
to Campbell. The Government explained that it had previously over-
looked Campbell’s designation as a career offender, which carried with
26 UNITED STATES v. SULLIVAN
Sullivan and Campbell properly preserved their claims of statutory
Booker error by raising Apprendi at sentencing; thus, their claims are
subject to harmless error review. See United States v. Williams, 445
F.3d 724 (4th Cir. 2006); United States v. Rodriguez, 433 F.3d 411,
415 (4th Cir. 2006). Applying this standard of review, they are enti-
tled to relief if the statutory Booker error affected their substantial
rights. See Rodriguez, 433 F.3d at 416. And "the burden is on the
Government to show that such an error did not affect the defen-
dant[s’] substantial rights." Id. The Government can make such a
showing if the sentencing court indicated that it would not have
imposed a lesser sentence under an advisory (rather than a mandatory)
Guidelines regime. Id.

The Government is unable to make such a showing here. Although
the district court announced "alternative" sentences for both Sullivan
and Campbell, these alternatives reflected the court’s calculations for
each defendant solely under a mandatory Guidelines regime. Signifi-
cantly, the court never indicated how it would have sentenced the
defendants under an advisory Guidelines regime, taking into account
not only the computations spelled out in the Guidelines, but also the
factors outlined in 18 U.S.C. § 3553(a). See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (recognizing that, in the wake of
Booker, "a district court shall first calculate (after making the appro-
priate findings of fact) the range prescribed by the guidelines" and
then "shall consider that range as well as other relevant factors set

it a minimum offense level of 37. At that offense level, with a criminal
history category of VI, the resulting sentencing range would have been
360 months to life. Thus, according to the Government, no Sixth Amend-
ment error occurred when the sentencing court imposed a life sentence
on Campbell. In response, Campbell contended that the Government
could not withdraw its previous concession of Sixth Amendment error.
Campbell did not challenge the assertion that no such error actually
occurred or his classification as a career offender. Cf. United States v.
Washington, 404 F.3d 834, 842-43 (4th Cir. 2005) (recognizing that sen-
tencing court may only look to certain sources in making factual findings
about prior convictions without violating Sixth Amendment). Campbell’s
response leads us to doubt that his sentence contravened the Sixth
Amendment. Nevertheless, as explained above, we need not reach this
issue.
 UNITED STATES v. SULLIVAN 27
forth in the guidelines and those factors set forth in § 3553(a) before
imposing the sentence"). And, under harmless error review, the
court’s silence on how it would have sentenced Sullivan and Camp-
bell if the Guidelines had then been advisory must be interpreted in
the defendants’ favor. See Rodriguez, 433 F.3d at 416.

Accordingly, we are obliged to conclude that Sullivan and Camp-
bell were prejudiced when the district court committed statutory
Booker error in connection with their sentences by treating the Guide-
lines as mandatory. We thus vacate the defendants’ sentences and
remand for such further sentencing proceedings as may be appropriate.9
9
We acknowledge that the defendants have raised other appellate con-
tentions with respect to their sentences. Specifically, Campbell asserts
that the sentencing court’s findings with respect to the leadership role
enhancement, the murder cross-reference, and drug quantity were clearly
erroneous. Sullivan contends that the court’s finding on drug quantity
was clearly erroneous, and also that the court erred in applying the mur-
der cross-reference based on facts found by a preponderance of the evi-
dence (rather than by clear and convincing evidence). We decline to
exercise our discretion to address these other alleged Guidelines-
application errors, and leave those issues for the district court. See
Hughes, 401 F.3d at 556 & n.15.