United States v. Perry Shippy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4802

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PERRY ROGER SHIPPY,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:09-cr-00023-LHT-DLH-10)

Argued: March 21, 2012 Decided: April 24, 2012

Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Wilkinson and Senior Judge Hamilton joined.

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Charles Wyatt McKeller,
Brevard, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
DAVIS, Circuit Judge:

Appellant Perry Roger Shippy was convicted on indictment

counts charging conspiracy with intent to distribute fifty grams

or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

and 846, and use of a communication facility in connection with

that offense, in violation of 21 U.S.C. § 843(b). On appeal,

Shippy argues that the district court erred in denying his

motion for judgment of acquittal as to both offenses, and in

imposing a mandatory minimum ten-year sentence based on a drug

quantity that was not specifically found by the jury.1 Having

fully considered Shippy’s contentions, we affirm.

I.

A.

In 2008 and 2009, Shippy came to the attention of law

enforcement as a result of an ongoing investigation into the

drug trafficking activities of his “distant cousin” and co-

defendant, Kenneth Lee Foster.2 In September 2008, Drug

1
Shippy also contends that he should have been sentenced
under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124
Stat. 2372. Shippy concedes, however, that he makes this
argument only to preserve it, as it is foreclosed by our
decision in United States v. Bullard, 645 F.3d 237 (4th Cir.
2011), cert. denied, 132 S. Ct. 356 (2011), by which this panel
is bound. United States v. Rivers, 595 F.3d 558, 564 n.3 (4th
Cir. 2010). Accordingly, we do not further address this issue.
2
We affirmed Foster’s conviction in United States v.
Fountain, 416 F. App’x 304 (4th Cir. 2011) (unpublished).

2
Enforcement Agency (DEA) agents and local Asheville police

targeted Foster for surveillance after Bridget Lee was charged

with drug trafficking and identified him as one of her sources.

The agents initially confirmed Lee’s information by having her

make monitored calls to Foster’s cell phone. Persuaded that her

identification of Foster was accurate, the agents then had Lee

undertake two controlled buys of crack cocaine from him, on

September 9 and September 11. The buys were monitored by audio

and (unbeknownst to Lee) video surveillance, and resulted in

Lee’s purchase of about 91 grams of crack on each occasion.

With this and other evidence of Foster’s drug trafficking,

agents obtained a warrant authorizing a wiretap to intercept

communications to and from Foster’s cell phones. In addition to

monitoring Foster’s calls, agents installed a video surveillance

camera up the street from Foster’s residence where he carried on

his drug trafficking activities. The position of the camera was

such that agents could observe only the area in front of the

main building entryway; the door to Foster’s unit, or that of

any other resident of the building, was not in view.

Agents observed Foster’s building and monitored his phone

calls for approximately four months total, from October 24,

2008, through February 24, 2009. During this time, they observed

a pattern of behavior by visitors to Foster’s home: a phone call

to Foster before an arrival, often a second phone call when the

3
visitor was a few minutes away or had arrived at the residence,

and finally a brief, five to ten minute interaction with Foster

either in the apartment or from the visitor’s vehicle parked

outside the building. As agents observed this conduct, they

endeavored to identify the visitors, i.e., Foster’s suspected

customers, by running DMV registration records for their cars.

Agents also endeavored to corroborate their belief that Foster’s

visitors were purchasing crack cocaine from him by undertaking

traffic stops after the visitors left his residence. Three such

stops effected for this purpose in fact yielded significant

seizures of crack cocaine.

On December 8, 2008, agents first observed the man later

identified as Shippy.3 At 2:52 p.m., Foster made an outgoing call

to phone number (828) 398-. Foster referred to Shippy as “Pete,”

and stated that he “got a hold of a little something.” Shippy

asked, “What are we talking about . . . on a Q.”4 Supp. J.A. 1.

Foster answered, “Five for you but five on the thing but you

3
Shippy testified in his own defense and generally denied
that it was he who was observed on December 8 (or that he was
involved in the drug trafficking conspiracy at all) but of
course the jury was entitled to discredit that testimony, as
indeed it did.
4
DEA Agent Daniel Guzzo, a member of the coordinated team
investigating Foster, testified that a “Q” indicated a quarter
ounce (approximately 7 grams) of crack cocaine.

4
know a tray [sic] on the Q for you five on the half so . . . .”5

Id. Foster then noted, as phonetically translated by the

monitoring agents, “It post to be [pretty] nice they say but it

ain’t much I just going to be honest.” Id. Shippy responded,

“let me call you back in a just a few minutes so I can get some

funds together.” Id. at 2.

About an hour later, at 3:49 p.m., Shippy called Foster

from the same phone used in the above conversation, saying he

was heading to the residence and would see Foster in ten

minutes. At 4:01 p.m., 12 minutes later, a Nissan Altima arrived

at Foster’s building and Shippy exited. Agents ran the plates of

the Altima and discovered that it was registered to Jessica

Goodien, at an address in a nearby town. Later investigation

revealed that Goodien was Shippy’s live-in girlfriend. Shippy

left Foster’s apartment at 4:32 p.m. Foster later called to

“verify the quality of the crack cocaine.” J.A. 350.

Several weeks later, agents eventually confirmed (to their

satisfaction) that it was indeed Shippy they had observed on

December 8 when they observed a car arriving at Foster’s

5
From the testimony of DEA agents and Bridget Lee (who
described herself as “not a virgin to crack cocaine,” J.A. 180),
the jury was entitled to find that Foster was offering to sell a
quarter ounce of crack (“a Q”) for $300 (“a tray”), or a half
ounce (“a half”; approximately 14 grams) for $500 (“five”). This
would roughly track the unit cost of crack from the controlled
buys and other transactions discussed in the record.

5
residence after phone calls from the same number that had

communicated with Foster on December 8. That car, a late model

Mercedes, was registered to Shippy himself. Having determined

that Shippy was the person associated with the number, that

phone line was ascribed by agents to Shippy for the remainder of

the investigation.6

On December 27, agents monitored and recorded another

series of calls between Foster and Shippy. During the first

call, at 3:41 p.m., Shippy stated to Foster, “You said you was

going to get half the whole thing.” J.A. 804. Foster replied,

“Uh hun[.] Yea you got to check that chicken out too man it

cooks pretty good.” Id. Trial testimony explained that “chicken”

was code for cocaine. Id. at 254. Foster also instructed Shippy,

“Stay by your phone I am going to hit you back.” Id. at 804. A

few minutes later, at 4:03 p.m., Shippy called Foster back,

“checking with ya to see if I could get any kind of help.”

Foster replied that they should “meet in the home front.” Id. at

805.

Video surveillance of Foster’s building showed that at 4:34

p.m., the Mercedes registered to Shippy arrived at the

6
Agent Guzzo testified at trial that while investigators
sometimes identified Foster’s contacts by researching the
registered user of particular phone numbers, the number ascribed
to Shippy was never researched because correlation of phone
calls and visits by Shippy adequately established his identity.

6
residence. While the record does not indicate how long Shippy’s

car was present, phone records indicate that at 8:08 p.m.,

Foster called Shippy’s phone, asking, “How did you like those

shoes[?]” Id. at 806. Shippy replied, “I ain’t slowed down since

I left you[. I]t is all well.” Id.

Two days later, on December 29, 2008, agents again

monitored calls between Foster and Shippy. At 5:23 p.m., Shippy

told Foster that he was “2 minutes away.” Id. at 807. Video

surveillance indicates that at 5:38 p.m., Shippy arrived in his

girlfriend’s Altima, entered Foster’s building, and departed

soon after. On December 31, Shippy called Foster at 11:58 a.m.

Foster told Shippy, “I’m getting you ready now . . . it’s going

to take a minute . . . . But I’m doing it now.” Id. at 808.

Shippy answered, “I’ll just hover over here for a minute then,”

and Foster ended with, “Ok I’ll just give you a yell.” Id. At

12:46 p.m., Foster called Shippy, asking, “where you at?” Id. at

809. Shippy answered that he was right around the corner and

Foster said, “Alright come on up man.” Id. Surveillance images

showed Shippy arrive in the Altima ten minutes later, at 12:56

p.m.

Days later, on January 3, 2009, Shippy and Foster

apparently talked again, with Foster saying, “I want you to

eat,” and Shippy replying, “That’s what I wanted to do is eat.”

Id. at 375. About ten minutes later, at approximately 12:29

7
p.m., Foster called Shippy, asking, “where you at?” Id. at 810.

Shippy replied, “Right down the street, I’ll be there in a

second.” Id. A minute or two later, Shippy was observed exiting

the Altima and walking towards Foster’s building. On January 8,

Shippy was observed outside Foster’s building, in his Mercedes.

Shippy’s communications with Foster were recorded, and his

presence at the residence was captured on camera soon after

those conversations, on five more days in January. Of particular

note, on January 25 at around 4:00 p.m., Shippy called Foster

after a couple of earlier conversations arranging his visit. At

the start of this conversation, the following exchange occurred:

Foster: Yo

Shippy: Yeah, I just wanted old boy to know how strict
the thing was between me and you

Foster: Oh I felt it, I felt it

Shippy: Oh you know those customers they will wait
till the last minute when they get to your
door and everything’s backwards

Foster: Yeah yeah why you think I went that route
though?

Shippy: Yeah

Foster: When you said no, I’m down, and I said yeah ok
I got ya

Shippy: Yeah

Foster: I appreciate that hey man do me a favor and go
ahead and get that out there right quick to
somebody and give me a test run back on that
as soon ASAP.

8
 Shippy: Ok but I believe it’s gonna be alright but
I’ll go do that now

Id. at 818. Two days later, on January 27, Shippy stated to

Foster during a phone call at 12:18 p.m., “I just wanted to

remind you about the 14 I’m out here.”7 Id. at 820. A

surveillance image was taken of Shippy outside Foster’s building

simultaneously at 12:18 p.m. Shippy departed just minutes later,

at approximately 12:20 or 12:21 p.m. This was the last

interaction between Foster and Shippy presented to the jury.

B.

As a result of the investigation detailed above, on April

7, 2009, Shippy was indicted in the District Court for the

Western District of North Carolina on two counts: (1) conspiracy

to possess with intent to distribute fifty or more grams of

cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1);

and (2) use of a communication facility in causing and

facilitating that conspiracy, in violation of 21 U.S.C. §

843(b). A few months prior, Foster and 14 others had been

indicted on the same two charges for conduct during the same

period of time.

7
Bridget Lee testified that when she said “four and a half”
during her conversations with Foster, she was referring to four
and a half ounces of crack cocaine. J.A. 111. Thus, the jury was
entitled to infer, as the Government urged, that “14” refers to
14 grams, or one half ounce, of crack cocaine.

9
 After his arrest, Shippy promptly filed a number of pro se

motions including “motions to compel, to appeal the ‘bond

hearing,’ for dismissal, and to suppress,” despite the fact that

he was represented by counsel. Id. at 16. The motions were all

“summarily denied” on the ground that Shippy must communicate to

the court through his attorney. Id. at 20. Notwithstanding the

admonishment, Shippy again submitted a pro se motion on May 18,

2009, requesting a separate trial from the nine co-defendants

listed on his indictment on the ground that he had “very little

to no acquaintance, relations, or affiliation” with them. Id. at

22. Again the motion was summarily denied.

The next month, the Government moved for a joint trial of

Shippy and the remaining defendants in the earlier Foster

indictment. Shippy’s counsel did not object to a joint trial and

the motion was granted. A joint trial then proceeded for Shippy,

Foster, and Yvonne Marie Fountain, Foster’s girlfriend. See

supra n.2.

At trial, the vast majority of the evidence addressed the

conduct of Foster and Fountain, whose conduct was inarguably the

subject of greater and stronger direct evidence than that of

Shippy. See, e.g., J.A. 322-25 (testimony that a half kilo of

powder cocaine and cash were seized in Foster’s apartment); 492-

94 (testimony that crack cocaine and “around $21,000” in cash

were seized in Fountain’s home). In fact, as Shippy points out,

10
“Agent Daniel Guzzo was the only government witness to mention

Mr. Shippy.” Supp. Appellant’s Br. 6. Guzzo testified that

agents identified Shippy as the user of the (838) 398— phone

number by correlating his arrival in the Altima registered to

his girlfriend and his own Mercedes to calls made from that

number. He further testified, as mentioned above, that

conversations between Shippy and Foster included use of code

words for the sale of crack cocaine.

Under questioning, Agent Guzzo conceded that video

surveillance did not actually indicate which apartment Shippy

entered during any of his visits to Foster’s building, and the

phone number ascribed to Shippy had not been researched as to

its registered user nor did it match the cell phone seized from

Shippy at the time of his arrest. Moreover, Shippy’s home did

not contain any drugs or large amounts of cash at the time it

was searched, and no one involved in the investigation “was

familiar with Mr. Shippy.” J.A. 457.

Shippy elected to testify in his own defense. He averred

that he was not the person whose voice was recorded from the

(838) 398- number. In addition, he explained his presence at

Foster’s building as visits to see Foster socially and invite

him to church events, and to see a Ms. Lytle, a first-floor

resident of Foster’s building, whose kitchen he hoped to

renovate through his home maintenance business. Shippy claimed

11
that he was drug- and alcohol-free (after a prior period of

substance abuse) and had never purchased drugs from Foster who

“had never even come around me with such,” knowing that Shippy

was a recovering addict. Id. at 737. When asked on cross-

examination whether his arrival at Foster’s building only

minutes after a caller from the (838) 398- number indicated he

was right around the corner and would be coming by was “just

coincidence,” Shippy replied, “I don’t know ma’am. I have no

idea.” Id. at 745.

During deliberations, the jury requested the date and time

of audio recordings between Foster and the phone number ascribed

to Shippy, and indicated they were attempting to correlate this

information with the dates for the video images of his presence

at Foster’s building. After a total period of approximately four

hours, the jury returned guilty verdicts for Shippy, Foster, and

Fountain as to the conspiracy offense. Shippy and Foster were

also found guilty of the use of a communication facility

offense. On the verdict sheet, as to the conspiracy count, the

jury made the following specific findings as to Shippy:

As to the charge of conspiracy to possess, with the
intent to distribute, cocaine [base] contained in
Count One of the Bill of Indictment . . .

Guilty

1. Do you unanimously find beyond a reasonable doubt
that the Defendant . . . was personally involved with

12
 the possession with intent to distribute of 50 grams
[sic] or more of cocaine base?

No

2. Do you unanimously find beyond a reasonable doubt
that the other members of the conspiracy were involved
with the possession with intent to distribute cocaine
base and that this involvement was either known to the
Defendant or reasonably foreseeable to him and was in
the furtherance of the conspiracy?

Yes.

Id. at 822-23. The final section of the verdict sheet directed

the jury to indicate the amount of cocaine base attributable to

each defendant, from among six choices: less than 50 grams; 50 -

149 grams; 150 - 499 grams; 500 grams – 1.49 kilos; 1.5 kilos –

4.49 kilos; or 4.5 kilos or more. As to Shippy, the jury

indicated the lowest listed amount, “less than 50 grams cocaine

base.” Id. Thus, the jury essentially convicted Shippy of a

lesser included offense as to count one, namely, conspiracy to

distribute cocaine base in an amount less than fifty grams.

C.

In advance of sentencing, a probation officer prepared a

pre-sentence report (PSR). In response to the draft PSR, Shippy

made nine objections, including the following:

[The PSR] should be amended to read that the Defendant
was responsible for at most one-half ounce of crack
cocaine based on the evidence adduced at trial which
equates to 14 grams or at least between 5 and 20 grams
of cocaine base. The proposed amendment would support
a change to the Guideline calculations to make the
Base Offense Level 24.

13
 Id. at 874. The final PSR included revisions to address these

objections, ultimately concluding:

[T]he jury determined the defendant is accountable for
less than 50 grams of cocaine base. The investigation
determined the defendant and Kenneth Foster had
telephone conversations consisting of the defendant’s
desire to purchase unknown amounts of crack cocaine.
As such, case agents place the defendant’s
responsibility in the range of at least 5 grams but
less than 20 grams of crack cocaine.

Id. at 853. The Base Offense Level was therefore computed, in

the absence of any applicable adjustments, at 24 for both

counts. Review of Shippy’s criminal history yielded 12 criminal

history points for a criminal history category of V. These

calculations resulted in a guideline term of imprisonment of 92-

115 months.

The PSR further noted, however, that the statutes

applicable at the time provided a mandatory minimum sentence of

ten years imprisonment and eight years of supervised release for

a defendant, like Shippy, who has a prior conviction for a

felony drug offense.8 For the communication facility offense, the

PSR noted a maximum sentence of eight years.

8
The Government had filed an information under 21 U.S.C. §
851 of its intent to seek the enhanced penalty in 21 U.S.C. §
841(b)(1)(B) against Shippy, based on his prior state conviction
for a felony drug offense. As discussed in more detail below,
the mandatory minimum applied to an offense involving 5 or more
grams of cocaine at the time of Shippy’s sentence. In 2010, the
provision was revised and the ten year mandatory minimum
(Continued)
14
 At his sentencing hearing, Shippy raised only one

additional substantive objection to the PSR, specifically that

the imposition of an enhanced mandatory minimum sentence of ten

years, under 21 U.S.C. § 841(b), reflected the 100-to-1 cocaine

base/powder cocaine disparity and should be varied downward in

light of that unfairness.9 The Government replied, “[T]he fact is

this is a statutory mandatory minimum. The Court couldn’t vary

from if it chose to. So the statutory – that’s the law right

now, so until it’s changed otherwise, it’s 120 months.” Id. at

829.

The district court found that the statutory minimum was

applicable, as asserted by the probation officer and the

Government, and therefore sentenced Shippy to 120 months’

imprisonment and eight years of supervised release for the

conspiracy charge, and 96 months, to be served concurrently, for

the communication facility charge. Id. at 833. Shippy has timely

appealed.

currently applies to an offense involving 28 or more grams of
crack cocaine. 21 U.S.C. § 841(b)(1)(B)(iii).
9
In making this argument, Shippy’s counsel at one point
inaccurately stated, “[T]he jury determined that he had
possession or responsibility for more than 5 grams of crack
cocaine.” J.A. 828. In fact, the jury’s only finding regarding
quantity was that less than 50 grams of crack cocaine were
attributable to Shippy. Id. at 823.

15
 II.

Shippy first argues that the district court erred in

denying his Rule 29 motion for judgment of acquittal for both

charged offenses. Our review of the denial of a motion for

judgment of acquittal is de novo, under longstanding principles,

as we summarized in United States v. Green, 599 F.3d 360, 367

(4th Cir. 2010) (internal quotation marks and citations

omitted):

We review the sufficiency of the evidence to support a
conviction by determining whether there is substantial
evidence in the record, when viewed in the light most
favorable to the government, to support the
conviction. “Substantial evidence” is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt. Further, a reviewing
court may not assess the credibility of witnesses, but
rather must assume that the jury resolved all
contradictions in testimony in favor of the
Government.

To obtain a conviction for conspiracy to possess with the

intent to distribute cocaine base, the Government must prove the

following essential elements: (1) an agreement between two or

more persons to possess with the intent to distribute cocaine

base; (2) the defendant’s knowledge of the conspiracy; and (3)

the defendant’s knowing and voluntary participation in the

conspiracy. United States v. Yearwood, 518 F.3d 220, 225-26 (4th

Cir. 2008). Once the Government proves the existence of a

conspiracy, the evidence need only establish a “slight

16
connection” between the defendant and the conspiracy to support

the conviction. Green, 599 F.3d at 367. Additionally, a

defendant may be convicted of conspiracy without knowing all of

its details and even if he plays only a minor role, as long as

he enters the conspiracy understanding that it is unlawful and

willfully joins in the plan at least once. Id. at 367-68; United

States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).

A.

Shippy argues that the Government failed to produce

sufficient evidence of his participation in a conspiracy

because, “[a]lthough a conspiratorial agreement need not be

proved by direct evidence, there was not even substantial

inferential or circumstantial evidence against Mr. Shippy.”

Supp. Appellant’s Br. 11. Shippy emphasizes that he was unknown

to any of the informant co-conspirators who testified at his

trial, he did not have drugs or cash in his home at the time he

was arrested, he was not shown to own or have used the phone

number ascribed to him, and none of the conversations he

allegedly had with Foster involved any quantity of cocaine in

any event. Id. at 14. Shippy makes an alternative argument to

the effect that at most, the evidence showed that he was merely

a buyer of cocaine base for his own personal use and not a

knowing member of a distribution conspiracy.

17
 The Government responds by essentially arguing that

Foster’s conduct was robustly proven to comprise drug

trafficking and that Shippy’s calls and visits to Foster’s home

matched the pattern of Foster’s known customers.

Under Burgos, a conspiracy may be adequately proven even

where it has an “elusive quality,” and the defendant has “little

or no knowledge of the entire breadth of the criminal

enterprise.” 94 F.3d at 858. “Circumstantial evidence tending to

prove a conspiracy may consist of a defendant’s ‘relationship

with other members of the conspiracy, the length of this

association, [the defendant’s] attitude [and] conduct, and the

nature of the conspiracy.’” Id. (citing United States v.

Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)).

We have no hesitation in concluding that the mosaic of

evidence described above was sufficient to permit the jury to

find beyond a reasonable doubt that Shippy was a knowing member

of the Foster drug trafficking conspiracy. The phone calls

attributed to Shippy unmistakably suggest drug trafficking

transactions to the degree that their content is unusually

opaque and seems to involve code words that are consistent with

testimony from known buyers. See, e.g., Supp. J.A. 1 (mention of

a “Q”); id. at 357 (Agent Guzzo’s testimony that a “Q” indicated

a quarter ounce of crack). Shippy’s relatively frequent, brief

visits to Foster’s building during the surveillance period also

18
match the pattern of known buyers observed by investigators.

While Shippy did attest to visiting another resident who lived

in a unit in Foster’s building, the duration of some of his

stops was so short that when coupled with the coded language, it

reasonably supports the inferences drawn by the jury that the

visits involved momentary drug transactions. See, e.g., id. at

384-86, 820 (testimony that Shippy was parked at Foster’s

building, after calling to “remind [him] about the 14,” for two

to three minutes). Whether the evidence demonstrated that Shippy

was carrying on his own entrepreneurial drug sales business with

Foster as his supplier, on the one hand, or was a mere innocent

in the wrong place at the wrong time on the wrong cell phone, on

the other hand, were quintessentially jury questions.

Shippy calls our attention to United States v. Hickman, 626

F.3d 756 (4th Cir. 2010), as an example of a case where direct

evidence of a defendant’s participation in a drug trafficking

conspiracy supported denial of a motion for acquittal. Indeed,

Hickman involved a defendant whose purchase of drugs had been

arranged by fairly explicit phone calls monitored by law

enforcement, and who in fact was found to have a quantity of

heroin in his car when he was eventually stopped and searched.

Id. at 761. Shippy, in contrast, was never observed with any

19
drugs, nor were drugs or cash found in his home.10 But these

obvious differences between the two cases provide no support to

Shippy. The absence of any evidence of seizures of drugs, cash

or paraphernalia from Shippy or Shippy’s residence does not

defeat the Government’s case as a matter of law.

The evidence adduced at trial was essentially that Shippy’s

conduct of contacting and visiting Foster matched the stark

patterns of known customers. Furthermore, corroborating the

inference of a drug purchase purpose for his visits most

strongly are three particular phone calls in which Foster and

Shippy discussed drugs with relative specificity. On December 8,

Shippy discussed purchasing a “Q” (i.e., quarter ounce, or 7

grams, of crack cocaine) from Foster. On December 27, Foster

told Shippy, “you got to check that chicken out too man it cooks

pretty good.” J.A. 804. From this evidence, and testimony from

Agent Guzzo that “Q” and “chicken” both refer to crack, the jury

could reasonably infer that Shippy was involved in a conspiracy

to possess and distribute cocaine base. Approximately one month

later, on January 25, 2009, Shippy also referred to “those

10
We note that Foster was arrested approximately two months
before Shippy, who admitted he knew that Foster had been taken
into custody (although he testified to believing that tax
evasion might have been the cause). There was clearly an
opportunity for Shippy to remove drugs or cash from his
residence if he suspected police might investigate him as an
associate of Foster.

20
customers,” id. at 818, a reference that any reasonable juror

could conclude was an allusion to Shippy’s customers, not to

Shippy himself as a mere customer of Foster.

To summarize, the Government produced evidence at trial

that established Shippy’s movements matched those of Foster’s

crack cocaine buyers, and his conversations indicated discussion

of crack cocaine quantities and arguably his own buyers. While

Shippy denied that he was a participant in those calls, and he

offered the jury innocent explanations for his intermittent

presence at and around the Foster residence, the jury made those

relevant findings against him, as it was authorized to do.11 In

light of the substantial evidence presented at trial, even if

much of it was circumstantial, and deferring as we must to the

jury’s role in judging the weight and credibility of the

testimony, Shippy has not satisfied his burden to make out a

case of evidentiary insufficiency. United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007) (“A defendant challenging the

sufficiency of the evidence faces a heavy burden.”).

B.

11
In addition to its assessment of Shippy’s demeanor on the
stand, the jury also had the benefit of comparing Shippy’s voice
in the recordings to what they heard when he testified.
Tellingly, the jury’s request during deliberations for dates and
times of the recordings, to compare with images of his arrival
at Foster’s building, suggests the jurors’ care and attention to
their responsibilities.

21
 Shippy also argues that he is entitled to a judgment of

acquittal as to his conviction for use of a communication

facility in committing, causing, or facilitating commission of a

felony under federal drug trafficking law. 21 U.S.C. § 843(b).

To obtain a conviction for a violation of § 843(b), the

Government must prove that the defendant: (1) used a

communication facility (in this case, a telephone); (2) to

commit, cause, or facilitate the commission of a drug offense;

and (3) did so knowingly and intentionally. Id.

Shippy asserts that the Government failed to provide

sufficient evidence that he did anything more, if he did

anything unlawful at all, than purchase an unspecified amount of

crack cocaine for personal use, which is not a felony, Supp.

Appellant’s Br. 18-19, and which, if true, would not support

conviction on the § 843(b) count. See Abuelhawa v. United

States, ––– U.S. ––––, 129 S. Ct. 2102, 2107 (2009) (holding

that a buyer who uses a telephone to make a misdemeanor drug

purchase does not “facilitate” felony drug distribution because

the term “facilitate” is limited to someone other than a

principal or necessary actor). But Shippy’s reliance on

Abuelhawa is misplaced.

In essence, Shippy argues before us that even if the

Government can show that he purchased crack cocaine from Foster

(ironically, a proposition Shippy vigorously disputed in his own

22
testimony at trial), the evidence failed to prove he was

involved in the distribution of those drugs to anyone else and

in so doing used a telephone. We reject Shippy’s contention.

Taken in the light most favorable to the Government, and

accepting the jury’s factual findings (i.e., that Shippy and

Foster were in fact discussing crack cocaine during their

conversations), the evidence indicates the following specific

purchase amounts:

Date Coded quantity Decoded quantity
December 8, 2008 “a Q” or “a half” ¼ ounce (7 g.)
or
½ ounce (14 g.)
December 27, 2008 “half the whole” ½ ounce (14 g.)
January 27, 2009 “the 14” ½ ounce (14 g.)

Together with the circumstances already described, these

quantities could reasonably be inferred to indicate an intent to

distribute, even if at a relatively small scale.12 It will be

recalled also that Shippy made mention of “those customers.” See

supra pp. 20-21.

In sum, for the same reasons we conclude the Government

adduced evidence sufficient to show Shippy’s knowing

participation in the overall conspiracy, we are satisfied that

the jury did not act irrationally in finding that Shippy

12
Testifying co-conspirator Lee, for example, made weekly
purchases of 128 grams (4.5 ounces) of crack from Foster. Co-
conspirator Renison testified to purchasing 20-60 grams, two or
three times a week.

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intended to distribute some if not all of the narcotics he

purchased from Foster, and that he used the telephone in the

course of his participation in the conspiracy. The amounts

discussed above are not so small as to preclude, as a matter of

law, a finding of intent to distribute, and circumstantial

evidence concerning Shippy’s use of a telephone to arrange drug

transactions was rationally interpreted by the jury against him.

Accordingly, the district court did not err in denying the

motion for judgment of acquittal as to the communication count.

C.

Shippy next argues that the district court erred in

imposing an enhanced mandatory minimum sentence of ten years’

imprisonment. Under 21 U.S.C. §§ 841(a) and 846, the sentences

for participants in drug conspiracies are set forth in § 841(b),

which “creates a three-part graduated penalty scheme for drug

distribution offenses, premised on the type and quantity of the

drugs involved.” United States v. Brooks, 524 F.3d 549, 557 (4th

Cir. 2008). We held in Brooks that “‘specific threshold drug

quantities must be treated as elements of aggravated drug

trafficking offenses, rather than as mere sentencing factors.’”

Id. (quoting United States v. Promise, 255 F.3d 150, 156 (4th

Cir. 2001) (en banc)).

Under the version of § 841(b) that was in effect both at

the time Shippy committed the conspiracy offense and at

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sentencing, the threshold quantity of cocaine base required for

a sentence under § 841(b)(1)(B), the section at issue here, was

five grams or more.13 For the statutory minimums of § 841(b) to

apply, the particular threshold drug amount must either be

admitted or found by a jury, beyond a reasonable doubt, to be

reasonably foreseeable to the defendant. Id. at 558.

As previously mentioned, the verdict sheet directed the

jury to indicate the amount of cocaine base attributable to each

defendant from among six choices: less than 50 grams, 50 - 149

grams, 150 - 499 grams, 500 grams – 1.49 kilos, 1.5 kilos – 4.49

kilos, or 4.5 kilos or more. As to Shippy, the jury found the

smallest listed amount, “less than 50 grams of cocaine base.”

Without question, the jury was not offered the opportunity

specifically to find that the amount attributable to Shippy was

“less than five grams.”

Thus, as the Government readily concedes, the district

court erred, United States v. Collins, 415 F.3d 304 (4th Cir.

13
Under that version of § 841(b)(1)(B), defendants
committing covered offenses involving five grams or more of
cocaine base “shall be sentenced to a term of imprisonment which
may not be less than [five] and not more than [forty] years.” 21
U.S.C. § 841(b)(1)(B). If the defendant commits such an offense
after a prior conviction for a felony drug offense has become
final, then the defendant “shall be sentenced to a term of
imprisonment which may not be less than [ten] years and not more
than life imprisonment.” Id. Shippy’s prior conviction thus
rendered him subject to a ten-year minimum mandatory sentence
for any drug amount equal to or more than five grams.

25
2005), and, although Shippy failed to object or to bring the

requirements of Brooks to the attention of the district court,

the error is plain under the applicable standard of review. See

United States v. Olano, 507 U.S. 725, 732 (1993) (successful

plain error review requires a showing that: (1) there was error;

(2) the error was plain; and (3) the error affected defendant’s

substantial rights); Foster, 507 F.3d at 251 (“In this case, the

jury never determined the individualized quantity of crack

attributable to each defendant for the penalty purposes of §

841(b) . . . . Because the jury was not properly instructed

under Collins, the defendants’ jury did not properly determine

the statutory threshold quantity of crack attributable to each

of them. Accordingly, the first two prongs of Olano (error and

plainness) are satisfied.”).

The issue presented is whether the Collins error affected

Shippy’s substantial rights and, if so, whether we should

exercise our discretion to correct the error in that it

“seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States v. Lynn, 592 F.3d 572,

577 (4th Cir. 2010) (internal quotation marks omitted). We are

satisfied that the district court’s error did not affect

Shippy’s substantial rights.

For reasons similar to those material here, we declined to

notice a Collins error in United States v. Jeffers, 570 F.3d 557

26
(4th Cir. 2009). There, we concluded that although the Collins

error affected the defendant’s substantial rights, i.e., he

received a sentence 24 months greater than the otherwise

applicable maximum sentence, we determined that a failure to

correct the error would not affect “the fairness, integrity or

public reputation of judicial proceedings.” Id. at 570. This

conclusion was based on our assessment that “overwhelming

evidence” supported the imposition of the higher sentence. Id.

Although in this case the evidence of Shippy’s involvement

with more than five grams of crack cocaine is not properly

described as “overwhelming,” it is, nonetheless, considerably

compelling. Indeed, we have no hesitation in concluding that

there is no reasonable likelihood that the jury would have found

a drug quantity of less than five grams.

The conversations between Shippy and Foster that the jury

determined to be drug-related referenced, as noted above, at

least three transactions that likely involved 7-14 grams of

crack each. Supp. J.A. 1 (referencing a “Q” and “a half”); J.A.

804 (“half of the whole”); id. at 820 (“the 14”). To the degree

that the jury found Shippy guilty of conspiracy, it is logically

necessary to conclude that the jury credited the testimony of

Agent Guzzo that the language used during the phone calls was

code, and that this code indicated drug quantities. The record

plainly indicates that the attributable quantity the district

27
court reached was consistent with (and even potentially more

conservative than) the most likely conclusions of the jury.

Notably, at sentencing Shippy conceded that the proper

quantity of crack attributable to him under the prosecution’s

evidence was 5-20 grams, and he requested application of the

guideline range for that very amount. Supp. Appellant’s Br. 24;

J.A. 874 (objection to the draft PSR noting “the Defendant was

responsible for at most one-half ounce of crack cocaine based on

the evidence adduced at trial which equates to 14 grams

therefore Mr. Shippy should be responsible for no more than 14

grams or at last between 5 and 20 grams of cocaine base”); id.

at 829 (requesting the “actual guideline amount” of

imprisonment). This concession was fully justified by the

evidence.

III.

For the reasons set forth herein, the judgment is

AFFIRMED

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