United States v. Anthony Sellers

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4701

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY SELLERS,

Defendant – Appellant.

No. 10-4702

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALCINDO ROCHELLE MATTHEWS,

Defendant – Appellant.

No. 10-4917

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
SIGMUND DIAOLA JAMES, a/k/a Sig,

Defendant – Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:08-cr-00944-MBS-21; 5:08-cr-00944-MBS-18; 5:08-cr-
00944-MBS-1)

Argued: September 21, 2012 Decided: February 28, 2013

Before SHEDD, KEENAN, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion. Judge Shedd wrote a separate opinion
concurring in part and dissenting in part.

ARGUED: Beattie Balentine Ashmore, BEATTIE B. ASHMORE, PA,
Greenville, South Carolina; Jan Simpson Strifling, Columbia,
South Carolina, for Appellants. John David Rowell, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Bradley M. Kirkland, BRADLEY M. KIRKLAND,
LLC, Columbia, South Carolina, for Appellant Alcindo Rochelle
Matthews. William N. Nettles, United States Attorney, Columbia,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

On consolidated appeal, Appellants Anthony Sellers,

Alcindo Rochelle Matthews, and Sigmund Diaola James challenge

their convictions and subsequent sentences stemming from a drug

conspiracy. Appellants dispute the admissibility of evidence

gained from searches of their vehicles. Appellants Sellers and

James also dispute the district court’s calculation and

proportionality of their life sentences. For the following

reasons, we affirm Appellants’ convictions. We conclude,

however, that the district court erred in sentencing Appellant

James by applying the murder cross-reference provision in United

States Sentencing Guidelines Manual (“Guidelines”) § 2D1.1(d)

and in treating as relevant conduct, an unrelated and uncharged

murder. Accordingly, we vacate James’s sentence and remand for

resentencing.

I.

The events of this case stem from the surveillance of

Sellers, Matthews, James, and others by Drug Enforcement Agency

(“DEA”) agents and Orangeburg County officers regarding possible

drug-related activities in Orangeburg, South Carolina. On May

21, 2007, South Carolina state highway patrol officers stopped

James for speeding. Upon running James’s license and

registration, Officer James LaChance was informed James had an

3
outstanding warrant in Orangeburg County. After James was

detained, he alerted Officer LaChance to money inside the

vehicle. Officer LaChance then returned to the vehicle and

located the money inside the console along with a rear-facing

video camera. Other officers, including a K-9 search team,

subsequently continued to search James’s vehicle.

Following James’s arrest and the search of James’s

vehicle, DEA agents continued to surveil James’s whereabouts.

On January 16, 2008, the DEA secured a wiretap of James’s

telephone. On January 19, 2008, the DEA, acting without a

warrant, placed an electronic Global Positioning System (“GPS”)

device on the exterior of James’s vehicle. Over the course of

the next several days, DEA agents used the GPS device to track

James’s whereabouts. On February 2, 2008, the GPS device ceased

transmitting, apparently because the device’s batteries had been

exhausted. On March 6, 2008, agents removed the device from

James’s vehicle. Relying partially on information gained from

the use of the GPS device, the DEA then secured another wiretap

of James’s phone on February 13, 2008, and again on March 16,

2008. A total of seven wiretaps were issued from January 2008

to July 2008 to secure evidence of the scope of the drug

conspiracy at issue in this case.

On August 14, 2008, Sellers was stopped by police for

an improper lane change while driving. Upon approaching the

4
vehicle, Officers Phillip Furtick and Terry Logan noticed a

strong odor of marijuana. Officer Furtick asked Sellers and his

passenger to step out of the vehicle, at which point Sellers

admitted to there being marijuana inside the vehicle. Officer

Logan also observed a partially hidden bag of what appeared to

be cocaine under the passenger seat as the passenger exited the

vehicle. The police officers then placed Sellers and his

passenger under arrest and searched the vehicle. The search

uncovered marijuana, cocaine, a pistol, and roughly $3,000.

On September 17, 2008, as a result of the evidence

gained from the search of James’s and Sellers’s vehicles, the

GPS surveillance, the wiretaps, and other information, James,

Sellers, and Matthews were indicted on drug conspiracy charges.

Following a series of superseding indictments, in the

third superseding indictment James was ultimately indicted on

the following seven charges: (1) conspiracy to possess with

intent to distribute five kilograms or more of cocaine and 50

grams or more of cocaine base in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A), and 846; (2) use of a communication

facility to facilitate said conspiracy in violation of 21 U.S.C.

§ 843(b) and 18 U.S.C. § 2; (3) possession with intent to

distribute 500 grams or more of cocaine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; (4)

possession with intent to distribute a quantity of cocaine in

5
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C.

§ 2; (5) money laundering in violation of 18 U.S.C. §§ 2,

1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1956(h); (6) possession

with intent to distribute a quantity of cocaine within 1,000

feet of a school in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 860(a), and 18 U.S.C. § 2; and (7) possession with

intent to distribute 500 grams or more of cocaine within 1,000

feet of a school in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), 860(a), and 18 U.S.C. § 2.

Sellers was indicted on the following five charges:

(1) conspiracy to possess with intent to distribute five

kilograms or more of cocaine and 50 grams or more of cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and

846; (2) possession with intent to distribute a quantity of

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

and 18 U.S.C. § 2; (3) knowingly possessing and using a firearm

during, in relation to and in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1); (4) felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2), and 924(e); and (5) aiding and abetting in possession

with intent to distribute a quantity of cocaine within 1,000

feet of a school in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 860(a), and 18 U.S.C. § 2.

6
 Matthews was indicted on the following charge: money

laundering in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i),

1956(a)(1)(B)(i), and 1956(h).

Appellants pled not guilty and a jury trial commenced.

At trial, Appellants moved to suppress evidence gained from the

search of James’s vehicle, information gathered from the GPS

device including the wiretaps that relied in part on the GPS

data, and the search of Sellers’s vehicle. The district court

denied Appellants’ motions to suppress. The jury found James,

Sellers, and Matthews guilty on all counts.

During sentencing, the district court found by a

preponderance of the evidence that in 2004 James had also

committed the murder of Vance Davis. Relying on testimony from

witnesses confirming James murdered Davis and at the time James

was involved in the drug trade, the district court attributed

Davis’s murder to James as conduct relevant to the drug

conspiracy under Guidelines § 1B1.3(a). Over James’s objection,

the district court adopted the pre-sentence investigation report

and applied the cross-reference found in Guidelines

§ 2D1.1(d)(1) for first degree murder, Guidelines § 2A1.1, to

increase James’s base offense level from 38 to 43.

James and Sellers were sentenced to life in prison on

August 19, 2010 and June 17, 2010, respectively. Matthews was

sentenced to 24 months in prison on June 17, 2010. Appellants

7
each filed timely appeals to this court. James, Sellers, and

Matthews challenge the district court’s denial of their motions

to suppress evidence gained from the searches of James’s and

Sellers’s vehicles and the information gained from the GPS and

resulting wiretaps. James and Sellers also appeal the district

court’s imposition of their life sentences.

Thus, this court possesses jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

On appeal, Appellants challenge the district court’s

denial of their motions to suppress various categories of

evidence. The following categories warrant our discussion here,

and each will be addressed in turn: (A) evidence gained from the

search of James’s vehicle; (B) evidence gained from the search

of Sellers’s vehicle; and (C) the installation and use of a GPS

device on James’s vehicle and the subsequent wiretaps that

relied on the GPS information.

When reviewing a district court’s denial of a motion

to suppress, this court reviews legal conclusions de novo, and

any factual determinations for clear error. United States v.

Kelly, 592 F.3d 586, 589 (4th Cir. 2010). When the district

court denies a defendant’s motion to suppress, as the reviewing

court, we construe the evidence in the light most favorable to

8
the government. Id. In the event we find a constitutional

error on direct review, “the government has the burden of

proving that a constitutional error was ‘harmless beyond a

reasonable doubt.’” Bauberger v. Haynes, 632 F.3d 100, 104 (4th

Cir. 2011) (quoting Chapman v. California, 386 U.S. 18, 24

(1967)).

When reviewing a district court’s determination of

necessity for the authorization of the interception of

communications under 18 U.S.C. § 2518, we review for an abuse of

discretion. United States v. Wilson, 484 F.3d 267, 280 (4th

Cir. 2007).

A.

Search of James’s Vehicle

James argues the district court erred when it denied

his motion to suppress and found evidence gained from the search

of his vehicle admissible as the product of a valid inventory

search.

As a starting point, to comply with the Fourth

Amendment’s prohibition against unreasonable searches and

seizures, generally police must obtain a warrant before

conducting a search. Kelly, 592 F.3d at 589 (4th Cir. 2010). A

warrantless search may be valid however, and the resulting

evidence admissible, if the search is conducted “‘within one of

the narrow and well-delineated exceptions’ to the Fourth

9
Amendment’s warrant requirement.” United States v. Currence,

446 F.3d 554, 556 (4th Cir. 2006) (quoting Flippo v. West

Virginia, 528 U.S. 11, 13 (1999)). One such exception includes

evidence gained from a valid inventory search. United States v.

Matthews, 591 F.3d 230, 234 (4th Cir. 2009) (citing United

States v. Banks, 482 F.3d 733, 738–39 (4th Cir. 2007)).

The inventory search exception is applied when police

officers impound vehicles or detain suspects. Matthews, 591

F.3d at 235. Its justifications are two-fold; an inventory

search serves to protect the detainee’s property, and also

protects the police from accusations of theft and from

potentially dangerous items. Id. Once a suspect is detained,

the inventory search exception does not give arresting officers

carte blanche to rummage through the detainee’s property looking

for possible evidence of criminal activity. In order for the

inventory search exception to apply, the search must have been

performed pursuant to standardized criteria -- such as a uniform

policy –- and such criteria must have been administered in good

faith. United States v. Banks, 482 F.3d 733, 739 (4th Cir.

2007). Importantly, “nothing prohibits the discretion of police

officers in making inventory searches so long as that discretion

is based on standard criteria and on the basis of something

other than the suspicion of criminal activity.” United States

10
v. Ford, 986 F.2d 57, 60 (4th Cir. 1993) (citing Colorado v.

Bertine, 479 U.S. 367, 375 (1987)).

In this case, after police stopped and arrested James,

James indicated to police that he had a significant amount of

cash inside the vehicle. Prior to discovery of the money and

rear-facing camera, Officer LaChance conducted the inventory

search in compliance with state highway patrol procedures and in

good faith in response to James’s notification that he had money

in the vehicle. At the suppression hearing, Officer LaChance

testified that the South Carolina state highway patrol inventory

search procedures require officers to start searching on one

side of a vehicle and progressively search to the other side.

In the police video submitted to the district court, Officer

LaChance clearly begins his search with the driver’s side door,

before moving to the driver’s seat, and finally the inner

console. Once Officer LaChance located the money in the inner

console, he stopped his search and sought confirmation from his

fellow officers that the money had been found. Also during this

search, Officer LaChance noted the rear-facing camera installed

on the dashboard.

Most of James’s objections center around the events

that followed. After initially locating the money and rear-

facing camera, a K-9 crew was called in and other officers

repeatedly searched portions of James’s vehicle. James argues

11
these repeated searches were not conducted pursuant to police

inventory policy and were administered merely in an attempt to

locate incriminating evidence.

James’s reliance on these arguments is misplaced. This

court need not consider whether the subsequent searches were

valid inventory searches simply because they produced no

evidence that was ever admitted at trial. The money and rear-

facing camera were discovered while Officer LaChance first

initiated his inventory search pursuant to official policy. If,

in fact, the subsequent searches by other officers and the K-9

search were not performed according to official policy or were

performed in bad faith, it is of no moment because there is no

indication in the record that any testimony related to the

subsequent searches or physical evidence discovered during the

subsequent searches was ever admitted at trial. Therefore, the

district court did not err in denying James’s motion to suppress

and allowing the money and photographs to be admitted as

evidence that was discovered pursuant to a valid inventory

search.

B.

Search of Sellers’s Vehicle

Sellers argues the district court erred when it denied

his motion to suppress and found evidence gained from the search

of his vehicle admissible. Sellers contends the search of his

12
vehicle violated his Fourth Amendment right to be free from

unreasonable searches and seizures, because the search did not

fall within the parameters of the exception to the warrant

requirement for the search of a vehicle incident to a recent

occupant’s arrest, as articulated by the Supreme Court in

Arizona v. Gant, 556 U.S. 332 (2009).

Sellers mistakenly relies only on select portions of

the Gant decision, and ignores other Supreme Court precedent.

In Gant, the Supreme Court clarified the rules governing a

search of an automobile incident to arrest set forth in New York

v. Belton, 453 U.S. 454 (1981), and held that two circumstances

could authorize a warrantless search of a vehicle incident to an

arrest: (1) the possibility of access to the vehicle by a recent

occupant; or (2) the likelihood of discovering evidence related

to the offense of arrest. 556 U.S. at 343 (“Accordingly,

we . . . hold that . . . [police may] search a vehicle incident

to a recent occupant’s arrest only when the arrestee is

unsecured and within reaching distance of the passenger

compartment at the time of the search. . . . [W]e also conclude

that circumstances unique to the vehicle context justify a

search incident to a lawful arrest when it is reasonable to

believe evidence relevant to the crime of arrest might be found

in the vehicle.” (footnote, citations, and internal quotation

marks omitted)).

13
 Here, police officers made a valid stop of Sellers for

a traffic violation. See United States v. Hassan El, 5 F.3d

726, 730 (4th Cir. 1993). Upon making the stop, the officers

were permitted to direct Sellers and his passenger out of the

vehicle. See Maryland v. Wilson, 519 U.S. 408, 415 (1997). If

these were the only facts of this case, then the search would

not have been permissible under Gant because Sellers and his

passenger did not have access to the interior of the vehicle,

and there would have been no basis for officers to believe there

was a likelihood of discovering evidence related to a traffic

violation inside the vehicle.

Importantly, however, the police officers in this case

possessed more information. Officers Furtick and Logan noticed

a strong odor of marijuana emanating from the vehicle, Sellers

admitted to there being marijuana inside the vehicle, and

Officer Logan observed a partially hidden bag of what appeared

to be cocaine under the passenger seat as the passenger exited

the vehicle.

In Gant, the Supreme Court noted that the search

incident-to-arrest exception is not the only exception that may

justify the search of a vehicle. 556 U.S. at 346. Indeed,

“[o]ther established exceptions to the warrant requirement

authorize a vehicle search under additional circumstances when

safety or evidentiary concerns demand.” Id. Most germane to

14
this case, “[i]f there is probable cause to believe a vehicle

contains evidence of criminal activity, United States v. Ross,

authorizes a search of any area of the vehicle in which the

evidence might be found.” Id. at 347 (citation omitted).

In this case, the drug-related odor, admission, and

visual identification clearly gave police officers probable

cause to believe the vehicle contained evidence of criminal

activity and justified the search under United States v. Ross,

456 U.S. 798 (1982), even though the criminal drug activity was

not the original offense that justified the arrest. The

district court, therefore, did not err in denying Sellers’s

motion to suppress the drugs, gun, and money gathered during the

search of Sellers’s vehicle.

C.

GPS Device

James argues the district court erred by denying his

motion to suppress evidence gained from the installation of a

GPS device on his vehicle and its subsequent use. James

contends the GPS tracking data should have been suppressed, as

well as the resulting wiretaps that relied in part on the GPS

data, as fruit of the poisonous tree. 1

1
Matthews also challenges the GPS data and wiretaps under
the same theories as James and their challenges will be treated
together.

15
 While James’s appeal was pending before this court,

the Supreme Court in United States v. Jones, 132 S. Ct. 945

(2012) addressed the precise issue implicated by this case:

whether the installation of a GPS tracking device to a target’s

vehicle, and its subsequent use, without a valid warrant,

constituted an unlawful search. In Jones, the Supreme Court

relied on the common-law trespassory test for a search –- noting

that the Katz v. United States, 389 U.S. 347 (1967) reasonable-

expectation-of-privacy test merely supplemented but did not

replace the trespassory test –- and found that such installation

and use violated the Fourth Amendment. 132 S. Ct. at 952. The

Supreme Court also noted, “[t]respass alone does not qualify [as

a search], but there must be conjoined with that what was

present here: an attempt to find something or to obtain

information.” Id. at 951 n.5. Just as in Jones, the DEA agents

in this case attached a GPS device to a target’s vehicle and

used the device to gain information about the target’s

whereabouts, all absent a valid warrant. 2 The search in this

case, therefore, violated James’s Fourth Amendment rights.

2
To be fair, the officers in Jones acted pursuant to a
warrant, albeit a warrant that had expired and was executed in
the wrong location. See 132 S. Ct. at 948. In this case, there
is no indication in the record that the DEA agents made any
attempt to secure a warrant to authorize installation of the GPS
device.

16
 In its briefing, the government does not challenge the

applicability of Jones to the present case. Rather, the

government argues that because Jones was decided after the

events of this case, the DEA’s actions should be viewed through

the good-faith standard as stated in Davis v. United States, 131

S. Ct. 2419 (2011), and therefore any evidence gained from the

GPS installation and its use should not be subjected to the

exclusionary rule. This court need not venture along this line

of inquiry for the result is the same even if Davis does not

apply.

1.

GPS Tracking Data

Even assuming Davis does not apply to this case, and

the district court erred in denying James’s motion to suppress

evidence gained from the GPS device, there is no indication that

any data gained from the GPS device was ever introduced at

trial. The government has stated that no such evidence was

introduced, and Appellants do not offer anything in the record

to the contrary. It is self-evident that there can simply be no

error in the admission of evidence when evidence is not

admitted. Appellants simply do not identify any direct tracking

information gained from the use of the GPS device that was ever

introduced either in testimony or by exhibit.

17
 2.

Wiretaps

The main thrust of James’s argument on appeal,

however, is not that the district court should have explicitly

suppressed direct GPS data, but rather that the district court

should have suppressed any evidence that was gained as a

proximate result of the GPS data –- specifically the February

through July 2008 wiretaps. In essence, James argues that

because the wiretap applications in part contained information

derived from an illegal GPS search, any evidence gained from the

wiretaps should be suppressed as “fruit of the poisonous tree.”

James argues this result is required because without the GPS

data, the wiretap applications lacked the required showing of

probable cause and necessity. We disagree.

Congress has provided a statutory framework to guide

the regulation of wiretapping and electronic surveillance.

United States v. Apple, 915 F.2d 899, 904 (4th Cir. 1990). In

order to issue a wiretap, a judge must determine, on the basis

of the application for the wiretap, that probable cause exists

to believe that (1) an individual is committing, has committed,

or is about to commit an offense enumerated in 18 U.S.C. § 2516;

(2) particular communications concerning that offense will be

obtained by the wiretap; and (3) the target facilities will be

used in connection with the offense. 18 U.S.C. § 2518(3); see

18
United States v. Webster, 639 F.2d 174, 177 (4th Cir. 1981).

The trial judge must also determine (4) the necessity for the

wiretap –- that is, normal investigative procedures have been

tried and have failed or reasonably appear to be unlikely to

succeed if tried or appear to be too dangerous. 18 U.S.C.

§ 2518(3)(c).

The wiretap statute also provides grounds for the

suppression of wiretap communications. Id. §§ 2515;

2518(10)(a). For example, a defendant may seek suppression of

wiretap communications when “the order of authorization or

approval under which [the communication] was intercepted is

insufficient on its face . . . .” Id. § 2518(10)(a)(ii).

Although at issue here is the availability of suppression for a

statutory violation, as a opposed to a constitutional violation,

Fourth Amendment principles may also inform the court’s

analysis. See United States v. Clerkley, 556 F.2d 709, 719 (4th

Cir. 1977) (“In other words, the violation must substantially

impinge upon Fourth Amendment values sought to be protected by

Congress in restricting and rendering uniform the use of

wiretaps.”); see also United States v. Baranek, 903 F.2d 1068,

1072 (6th Cir. 1990) (noting that although the wiretap statute

may provide greater protection than the Fourth Amendment, Fourth

Amendment evidence suppression doctrines are still relevant).

19
 In this case, setting aside the allegedly

impermissible GPS information contained in the wiretap

application, the surviving information contained in the

application remained sufficient to support a finding of probable

cause and necessity required to issue the wiretap. See United

States v. Gillenwaters, 890 F.2d 679, 681–82 (4th Cir. 1989)

(recognizing that courts have set aside suspect material in an

affidavit for a search warrant and then evaluated probable

cause, even when the suspect information was obtained through an

illegal search). Like the probable cause standard for a search

warrant, the probable cause standard necessary to comply with 18

U.S.C. § 2518(3) requires not absolute certainty, but rather a

“fair probability” that evidence of the subject offense will be

uncovered given the totality of the circumstances. United

States v. Depew, 932 F.2d 324, 327 (4th Cir. 1991) (citing

United States v. Alfano, 838 F.2d 158, 161–62 (6th Cir. 1988)).

Similarly, the showing of “necessity” for the wiretap is not

prodigious and “the Government ‘need only present specific

factual information sufficient to establish that it has

encountered difficulties in penetrating the criminal enterprise

or in gathering evidence [such that] wiretapping becomes

reasonable.’” United States v. Wilson, 484 F.3d 267, 281 (4th

Cir. 2007) (quoting United States v. Smith, 31 F.3d 1294, 1298

(4th Cir. 1994)).

20
 Excising the allegedly impermissible GPS information

from the wiretap applications in this case, it is clear the

wiretap applications satisfy the probable cause and necessity

standards. For example, the affidavits set forth the array of

investigatory techniques DEA officers employed to shed light on

the drug conspiracy. The techniques employed by DEA officers

included extensive stationary and mobile physical surveillance,

interviews, telephone pen registers, telephone toll records, and

the analysis of public records. The affidavits also describe

the difficulties faced by officers in this case, including:

performing discreet mobile and stationary surveillance and

collecting garbage in the sparsely populated rural environment

of the targets; electronic counter-surveillance measures and

“look-outs” employed by the targets; evasive measures taken by

targets in response to perceived surveillance; and the inability

to insert undercover agents in, or recruit confidential sources

from, the target’s organization. This showing was sufficient.

Although the district court abused its discretion in relying on

the additional GPS information in issuing the wiretaps,

inclusion of this information was harmless beyond a reasonable

doubt and a good faith inquiry under Davis is not required. See

Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011).

Therefore, we affirm the convictions of Appellants James,

Sellers, and Matthews.

21
 III.

Appellants James and Sellers also challenge the

district court’s imposition of a life sentence. James argues

the district court erred when it found by a preponderance of the

evidence that he murdered Vance Davis and attributed the murder

at sentencing, as “relevant conduct” to the drug conspiracy in

this case. James and Sellers also both argue their life

sentences are not proportional to their crimes and therefore

violate the Eighth Amendment’s prohibition on cruel and unusual

punishment.

In reviewing a sentence imposed by the district court,

we review for both procedural and substantive reasonableness.

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). We

review unpreserved challenges of procedural sentencing error for

plain error. Id. at 576–77. We review preserved challenges of

procedural sentencing error for an abuse of discretion and

reverse unless we conclude that the error was harmless. Id. at

576. If the sentence is procedurally reasonable, we then review

the underlying substantive reasonableness of the sentence under

an abuse of discretion standard. Id. at 575. If we find the

sentence to be procedurally unreasonable, we are foreclosed from

reviewing the underlying substantive reasonableness of the

sentence. United States v. Horton, 693 F.3d 463, 472 (4th Cir.

2012).

22
 In reviewing whether a sentence is within the

constitutional limits of the Eighth Amendment’s prohibition

against “cruel and unusual punishments” an appellate court asks

whether the imposed sentence is proportionate to the crime

committed. Solem v. Helm, 463 U.S. 277, 290 (1983). To

determine proportionality, we consider “(1) the gravity of the

offense and the harshness of the penalty; (2) the sentences

imposed on other criminals in the same jurisdiction; and (3) the

sentences imposed for commission of the same crime in other

jurisdictions.” United States v. Wellman, 663, F.3d 224, 231

(4th Cir. 2011) (citing Solem, 463 U.S. at 292).

A.

Relevant Conduct Enhancement

During sentencing, the district court found by a

preponderance of the evidence that James had committed the

murder of Vance Davis and that this qualified as relevant

conduct under the sentencing guidelines. Specifically, the

district court relied on two witnesses who confirmed that James

murdered Davis. Over James’s objection, the district court

adopted the pre-sentence investigation report and applied the

cross-reference found in Guidelines § 2D1.1(d)(1) for first

degree murder, Guidelines § 2A1.1. This application of the

cross-reference increased James’s offense level under § 2D1.1

from 38 to 43.

23
 In reviewing an enhancement for relevant conduct for

procedural error, we conduct two separate analyses. First, we

review for clear error the district court’s factual finding that

the defendant committed the relevant conduct offense by a

preponderance of the evidence. Horton, 693 F.3d at 474–75.

Second, we review de novo the district court’s legal

determination that the relevant conduct offense qualifies for

the applicable cross-reference provision in the Guidelines. Id.

As this court noted in Horton, the clear error

standard of review is “very deferential” toward the factual

findings made by the district court. 693 F.3d at 474. At

sentencing, the district court heard testimony by two witnesses,

Robert Jones and Avery Haigler, each indicating James had

murdered Vance Davis. Although James pointed out that there

were certain discrepancies between other evidence and the

testimony of Jones and Haigler, that fact alone, does not

overcome the fact that there was a sufficient amount of evidence

for the court to conclude, by a preponderance of the evidence,

that James murdered Davis.

Finding the district court did not clearly err in its

factual determination that James murdered Davis, we now turn to

the legal question of whether the relevant conduct offense can

be applied under the cross-reference provision. In reviewing

the district court’s determination of relevant conduct for

24
sentencing purposes, the interrelation of two provisions in the

Guidelines requires discussion: (1) § 2D1.1(d) (“the Cross-

Reference Provision”); and (2) § 1B1.3 (“the Relevant Conduct

Guideline”).

The offense level for James’s offenses of conviction –

- the drug conspiracy and possession convictions –- is

established under Guideline § 2D1.1. Subsection (d) of § 2D1.1

provides the Cross-Reference Provision, which states in relevant

part: “If a victim was killed under circumstances that would

constitute murder under 18 U.S.C. § 1111 . . . apply § 2A1.1

(First Degree Murder) or § 2A1.2 (Second Degree Murder), as

appropriate, if the resulting offense level is greater than that

determined under this guideline.” USSG § 2D1.1(d)(1).

Unless otherwise specified in the Guidelines, the

application of the Cross-Reference Provision depends on whether

the cross-referenced offense –- in this case, first degree

murder –- constitutes relevant conduct under the Relevant

Conduct Guideline found in § 1B1.3(a). Horton, 693 F.3d at 476.

Neither the parties, the district court, nor the Pre-Sentence

Investigation Report identifies whether the cross-referenced

offense should be considered relevant conduct under

§ 1B1.3(a)(1) or § 1B1.3(a)(2), or any other provision for that

matter. Under any provision, however, we find the cross-

25
referenced murder offense not to be relevant conduct

attributable to the drug conspiracy in this case.

The Relevant Conduct Guideline, § 1B1.3(a), states in

relevant part, that the application of a cross-reference shall

be determined on the basis of:

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

***

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

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

USSG § 1B1.3(a).

Here, the Davis murder cannot be considered relevant

conduct under either provision. First, with respect to

§ 1B1.3(a)(1)(A), the evidence is insufficient to conclude that

the murder occurred during, in preparation for, or in the course

of attempting the drug conspiracy in this case. While all the

witnesses at sentencing agreed James had murdered Davis, their

testimony was inconsistent, at best, as to whether the murder

involved drug-related activities, or was an act of vengeance for

Davis’s alleged attempted robbery of James’s mother’s residence.

26
 Although James’s pre-sentence report indicates that

Lenell Walker stated to police officers that Davis stole drugs

from James, prompting James’s retribution, the testimony of

Robert Jones and Avery Haigler at sentencing provides no such

connection. At most, Jones and Haigler indicated that at the

time of Davis’s murder, James was involved in the drug trade.

Neither witness, however, indicated Davis successfully stole

drugs from James or that they believed Davis was motivated by

James’s involvement in the drug trade. In fact, both Jones and

Haigler testified that James was infuriated not because of any

connection the attempted break-in may have had to drugs, but

rather because the attempted break-in occurred at his mother's

residence. In short, their testimony, and the overall weight of

the evidence, does not connect the attempted robbery and the

Davis murder with drug-related activity.

Furthermore, there was no evidence Davis was ever a

part of the drug conspiracy in this case, or that James ever

sold drugs to, or purchased them from, Davis. 3 Even if the

3
In the original indictment, and the first and second
superseding indictments, the grand jury found, and the
indictments charged, that the drug conspiracy in this case began
at least as early as May 2007. The Davis murder occurred in
July 2004. If the relevant conduct offense had occurred far
beyond the temporal scope of the underlying offense, this would
have further indicated that the murder was not related to the
drug conspiracy. The parties acknowledged at oral argument,
however, that the third superseding indictment charged that the
(Continued)
27
murder happened to be “drug-related” in some sense, nothing

connects the Davis murder to the particular drug conspiracy in

this case.

James was never charged with Davis’s murder nor had he

otherwise ever been implicated in the murder up until the

present case. We cannot simply assume every act committed by a

convicted criminal, no matter how heinous, is connected and

relevant to the offense of conviction. To do so would turn the

relevant conduct analysis into an impermissible conduit for

punishing uncharged and unproven conduct and would circumvent

the criminal process.

Second, § 1B1.3(a)(2) is also inapplicable to the

present case. As we recently held in Horton, in order for

§ 1B1.3(a)(2) to apply, both the offense of conviction and the

relevant conduct offense must be capable of grouping. Horton,

693 F.3d at 479. Because homicide offenses are explicitly

excluded from grouping, § 1B1.3(a)(2) cannot apply. See id. at

477 (noting that § 1B1.3(a)(2) relies on § 3D1.2(d), which in

conspiracy began, not in 2007, but in 2001. Therefore, we do
not rely on the timing of the murder and the conspiracy in
reaching our conclusion that the government failed to show the
two events were sufficiently related to qualify as relevant
conduct.

28
turn excludes Chapter Two, Part A offenses (except § 2A3.5),

which include the guideline for murder).

We therefore conclude that the district court

committed procedural error in finding the Davis murder to be

relevant conduct to the underlying conspiracy in this case, and

thus increasing James’s base offense level under the cross-

reference provision.

B.

Proportionality of Life Sentences

With respect to Appellant James, because we find

significant procedural error in the calculation of his sentence,

we do not reach the underlying substantive reasonableness of his

sentence. See Horton, 693 F.3d at 472. Finding no error with

respect to Appellant Sellers, however, nothing prevents us from

considering the proportionality of Sellers’s life sentence.

As noted, in reviewing the proportionality of a life

sentence, this circuit applies the three-part test found in

Solem. 463 U.S. at 292. We examine “(1) the gravity of the

offense and the harshness of the penalty, (2) the sentences

imposed on other criminals in the same jurisdiction, and (3) the

sentences imposed for commission of the same crime in other

jurisdictions.” United States v. Kratsas, 45 F.3d 63, 66 (4th

Cir. 1995) (citing Solem, 463 U.S. at 292).

29
 In this case, the district court correctly applied the

Solem test and determined Sellers’s statutorily required life

sentence was not constitutionally disproportionate in violation

of the Eighth Amendment. Under the first prong of the Solem

test, Sellers’s offenses were considerably serious. Sellers was

determined by the district court to be part of a conspiracy to

distribute five kilograms or more of cocaine. This circuit has

recognized that smaller amounts of drugs in a conspiracy can be

equally serious. United States v. Kellam, 403 F. App’x 815, 817

(4th Cir. 2010) (finding the gravity of 500 grams to 1.5

kilograms of drugs included in a conspiracy to be sufficiently

serious to satisfy the first Solem prong). Sellers also

possessed a significant criminal history related to drug

convictions. This circuit has repeatedly found that life

sentences for similar major drug conspiracies for defendants

with a history of drug convictions are not disproportionate to

similar sentences under the Sentencing Guidelines and sentences

imposed by states within this circuit. See Id. at 817 (citing

United States v. D’Anjou, 16 F.3d 604, 613–14 (4th Cir. 1994)).

Accordingly, Sellers’s life sentence is not

constitutionally disproportionate to constitute an Eighth

Amendment violation.

30
 IV.

For the aforementioned reasons, we affirm the

convictions of James, Sellers, and Matthews. We also affirm

Sellers’s sentence. We vacate James’s sentence and remand to

the district court for resentencing. 4

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

4
We have examined all remaining issues raised by the
Appellants in their brief and find them to be without merit.

31
SHEDD, Circuit Judge, concurring in part and dissenting in part:

Although I concur in almost all of the majority’s opinion,

I respectfully dissent from its conclusion that the district

court erred in applying the murder cross-reference when

determining Sigmund James’s sentence.

I agree with the majority that the framework of United

States v. Horton, 693 F.3d 463 (4th Cir. 2012), governs our

analysis and that we review the district court’s factual

findings for clear error and its legal determinations de novo,

id. at 474. I further agree with the majority that the district

court did not clearly err in finding that James murdered Vance

Davis. 1

I disagree with the majority, however, on whether the

murder cross-reference can be applied based on Davis’s murder.

The evidence in the record provides a sufficient connection

between Davis’s murder and the drug conspiracy for the murder to

1
The evidence established that James lured Davis to join
him by telling Davis that he (James) wanted Davis’s help with
something. J.A. 1018–19. James and Davis drove off together,
and soon after that James told Davis to pull over. J.A. 1019.
James then shot Davis five times: once in the head, once in the
back, once in the chest, and twice through Davis’s right arm and
into his chest, J.A. 993–94. Any one of these shots could have
been fatal. J.A. 992–94. James left Davis’s bullet-riddled
body lying on a prominent road in Orangeburg on which a large
public high school is located. J.A. 975.

32
be considered relevant conduct under United States Sentencing

Guideline § 1B1.3(a)(1)(A).

First, it is important to clarify exactly what the record

was that the district court was permitted to use in sentencing

James and that we can consider here. The majority seems to

believe that the district court could not consider the

Presentence Report’s (“PSR”) evidence about why James killed

Davis. See ante at 27. Such a position is incorrect.

At sentencing, James at first objected to the entire PSR,

and when prompted for more specific objections, he objected to

all of paragraphs 62, 63, 64, 65, and 66 of the PSR, which

described how and why James killed Vance Davis. J.A. 959, 1189–

91. What followed this objection leaves no doubt that James

objected to the fact that he killed Davis, not why he killed

Davis.

After the objection, the district court took testimony from

four witnesses—Orangeburg police Captain Ronda Bamberg, Robert

Jones, Avery Haigler, and James—regarding Davis’s murder. J.A.

972–1089. The testimony of the witnesses and arguments of

counsel at the sentencing hearing focused only on whether James

killed Davis, not whether that killing was relevant to the drug

33
conspiracy. 2 See J.A. 972–1093. After having heard and

considered all of this evidence, the district court overruled

James’s objections to these paragraphs, making an explicit

finding of fact that James killed Davis. J.A. 1101; see United

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991) (holding

that a district court may comply with Federal Rule of Criminal

Procedure 32(c)(3)(D) either by separately reciting its findings

or expressly adopting the recommendations of the PSR).

Confirming that James objected only to the question of whether

he committed the murder, after the district court made this

finding, James’s counsel stated “None, your Honor, no,” when

asked if he had any further objections. J.A. 1101. Based on

the testimony, arguments, and even James’s allocution, 3 James’s

objection to these paragraphs in the PSR was based on the fact

that he allegedly did not kill Davis, not why he killed Davis.

James could have argued that, even if he did kill Davis, he did

so for a reason unrelated to the drug conspiracy, but James

never made that argument.

2
In these pages of the transcript, James took the stand and
emphatically denied killing James. J.A. 1059. All of James’s
testimony focused on whether he killed James, not any motivation
for the killing. See J.A. 1059–89.
3
When allocuting, James again denied the murder, without
ever arguing that the murder was unrelated to the drug
conspiracy. J.A. 1106.

34
 Because the district court addressed James’s specific

objection, it did not need to make an explicit finding about the

murder’s relevance to the drug conspiracy. On this point, the

district court was entitled to rely on the PSR’s evidence about

why James killed Davis. Having overruled James’s objection to

the fact of the killing, the district court could, as it did, 4

adopt and rely upon the other facts in the PSR, including from

the paragraphs to which James had objected on another basis, to

use in sentencing James. J.A. 1101–03.

Having clarified what evidence is in the record and can be

considered when determining James’s sentence, the next issue is

whether that evidence sufficiently connects Davis’s murder with

the drug conspiracy. The answer is unequivocally yes.

Most obviously connecting the murder with the drug

conspiracy are two statements from the PSR. First, paragraph 63

states that Lenell Walker told special agents from the Drug

Enforcement Agency that James told him (Walker) that he (James)

killed Davis because Davis had stolen drugs from him (James).

J.A. 1190. Second, paragraph 64 states that James told Jones

4
Although the district court perhaps could have more
explicitly stated that it was adopting the other facts in the
PSR, that the district court adopted those facts is obvious.
See J.A. 1101–03. Without having done so, the district court
would have had no basis for determining the applicable statutory
provisions, which the district court based on the PSR.

35
that Davis had broken into his (James’s) home and stolen

cocaine, prompting Jones to tell James to resolve the problem or

Jones would not provide James any more cocaine. J.A. 1190–91.

These two pieces of evidence leave no doubt that the district

court could have found that James shot Davis in relation to the

drug conspiracy.

No other evidence in the PSR or from the sentencing hearing

contradicts these statements about why James killed Davis such

that the district court could not have found that James’s

motivation for killing Davis was drug-related. The other

evidence shows the following: James killed Davis after Davis had

attempted to break into and rob James’s mother’s trailer, J.A.

1010; James was living in his mother’s trailer at that time,

J.A. 1010; James had engaged in drug transactions at that

trailer, J.A. 1043; and James was deeply engaged in a drug

conspiracy at this time, ante at 27–28 n.3. None of this is

inconsistent with the two statements from the PSR about why

James killed Davis. 5

Although the majority focuses on the “inconsistent”

testimony about whether Davis attempted to rob James because of

5
Nothing is necessarily inconsistent about the fact that
James described an attempted robbery by Davis and a robbery by
Davis. James may have been discussing two separate incidents,
or he may have varied the story depending on his audience.

36
his drug-related activities or simply attempted to rob James’s

mother, ante at 26, the majority’s analysis belies its claim of

any inconsistency. In fact, the majority’s analysis indicates

that it believes that the testimony clearly supports the

conclusion that James killed Davis out of anger that Davis tried

to rob James’s mother. See ante at 27. Yet the testimony is

not nearly so clear. James was undoubtedly upset about the

attempted robbery, but neither Jones nor Haigler testified at

the hearing about specifically why James was upset. Their

statements about the trailer belonging to James’s mother are

more descriptive of where the attempted robbery took place than

of why James was upset. See J.A. 1010–12, 1039–42. Their

testimony is certainly, at the very least, not dispositive that

the motive for the killing was that Davis tried to rob James’s

mother. Furthermore, to the extent that this evidence is

inconsistent with the PSR, the district court could choose to

rely on the evidence from the PSR about the motive for the

killing rather than the testimony at the sentencing hearing.

This testimony therefore provides little support for the

majority’s conclusion.

Taken together, the evidence overwhelmingly supports the

conclusion that the murder was relevant to the drug conspiracy.

To conclude that James killed Davis in connection with the drug

conspiracy—whether because James believed Davis stole drugs from

37
him or because James needed to “send a message” that he would

not tolerate such threats against him—is not difficult. In

reality, it is the most logical conclusion when considering the

evidence in the record and taking into account what common

knowledge tells us about the connection between drug dealers and

gun violence. See United States v. Mitten, 592 F.3d 767, 777–78

(7th Cir. 2010) (recognizing that “[d]rug traffickers will

commonly possess firearms to protect their product, to protect

their drugs, to protect their cash, to protect their life and

even to protect their turf” (alteration in original)); cf.

United States v. Grogins, 163 F.3d 795, 799 (4th Cir. 1998)

(noting that “the background fact that the connection between

illegal drug operations and guns in our society is a tight

one”).

This conclusion thus does not “turn the relevant conduct

analysis into an impermissible conduit for punishing uncharged

and unproven conduct,” as the majority fears. Ante at 28.

Instead, this conclusion ensures that James receives the most

just punishment that reflects all of his actions relating to his

crimes of conviction. Therefore, I believe the district court

did not err by finding that the murder was relevant to the drug

conspiracy and thus properly applied the murder cross-reference,

and I respectfully dissent from the majority’s contrary

conclusion.

38