PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 09-5067
WILLIAM LEONARDO GRAHAM, a/k/a
Leo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:08-cr-00411-WDQ-4)
Argued: January 31, 2013
Decided: March 29, 2013
Before TRAXLER, Chief Judge, and AGEE and DAVIS,
Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Chief Judge Traxler and Judge Agee joined.
COUNSEL
ARGUED: Michael Alan Wein, Greenbelt, Maryland, for
Appellant. Michael Clayton Hanlon, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
2 UNITED STATES v. GRAHAM
Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.
OPINION
DAVIS, Circuit Judge:
A jury convicted Appellant William Leonardo Graham of
one count of conspiracy to distribute more than five kilograms
of cocaine, in violation of 21 U.S.C. § 846. Pursuant to 21
U.S.C. § 851, the district court imposed a mandatory life sen-
tence. On appeal, Graham asserts reversible error in three
respects: (1) an alleged violation of the Court Reporter Act,
28 U.S.C. § 753(b); (2) the admission of statements by cocon-
spirators recorded during wiretapped conversations; and (3)
his life sentence contravenes the Constitution. For the reasons
set forth below, we reject each of Graham’s contentions and
we therefore affirm the judgment.
I.
Although several of Graham’s codefendants testified
against him and thereby provided direct evidence of his par-
ticipation in the narcotics conspiracy, their trial testimony was
significantly bolstered by recordings of their wiretapped con-
versations which occurred during the existence of the conspir-
acy. Graham’s focus on appeal before us is that (1) the full
vindication of his right to appellate review has been denied by
the lack of a reliable trial record of the wiretapped conversa-
tions; and, in any event, (2) the district court abused its discre-
tion when it admitted the wiretapped conversations. For the
reasons explained within, we reject each of these contentions.
A.
On September 11, 2008, Graham was named with seven
others in count one of a superseding indictment charging con-
UNITED STATES v. GRAHAM 3
spiracy to distribute and possess with intent to distribute five
kilograms or more of cocaine from March 2006 through
August 2008. Graham alone proceeded to trial; his codefen-
dants entered into plea agreements or (as to one) the indict-
ment was dismissed on motion of the government. Prior to
trial, Graham’s counsel discussed with the prosecuting Assis-
tant United States Attorney ("AUSA") the admissibility of
five recordings of wiretap conversations among Graham’s
codefendants in which Graham was not a participant. The
government indicated that it planned to seek admission of the
recordings as non-hearsay coconspirator statements and/or
pursuant to the present sense impression exception to the
hearsay rule.
Trial took place from August 17 through August 24, 2009.
During opening statements, the AUSA explained to the jury
that the government would present testimony of the case
agent regarding the investigation, specifically as to how the
government was able to install a wiretap on the cellphone of
codefendant Lawrence Reeves, and thereby intercept conver-
sations between Reeves and codefendants Devon Marshall
and Justin Gallardo. The government further explained that
the jury would hear in the recordings that Reeves, Marshall,
and Gallardo were attempting to collect a drug debt from Gra-
ham. (Reeves, Marshall, and Gallardo all testified against
Graham pursuant to plea agreements with the government.)
The government’s first witness, Drug Enforcement Agency
("DEA") Special Agent Thomas Cindric, testified that investi-
gators recorded approximately 35,000 conversations in the
course of the investigation of the conspiracy. Cindric also
confirmed that there were no recordings of Graham himself
talking on the wire.
Next, Reeves testified. He explained how he and Gallardo
were in a partnership: Gallardo received drugs from Arizona,
Reeves distributed them to various buyers and sellers, and
Gallardo returned the proceeds to the Arizona suppliers.
4 UNITED STATES v. GRAHAM
Reeves also described working with Graham to sell drugs,
including going to Graham’s house to "pick up the money that
he owed [him] for [a] [ ] shipment of drugs that [he] gave
him." J.A. 178. Reeves testified that he received a total of six
shipments of cocaine from Arizona. At some point, Reeves
met Marshall, one of Graham’s customers. Reeves testified
that Marshall was unhappy with Graham’s prices and began
to buy directly from Reeves.
Reeves testified that while working with Graham to sell the
fourth shipment of narcotics, which was delivered to Gra-
ham’s home and contained approximately 26 kilograms of
cocaine and about 200 pounds of marijuana, they "gave [the
drugs] to [Graham] up front and expected to get payment
afterwards, after he was done selling." Id. at 191. Graham
complained about the quality of the marijuana, however, and
told them "he tried to sell" it but could not. Id. at 192. As a
result, he owed Reeves and Gallardo money for the mari-
juana, which resulted in the Arizona suppliers going unpaid.
According to Reeves, Graham’s debt after that transaction
was "about $30,000." Id.
Reeves further testified that Graham had received a portion
of four of the six shipments from Arizona, but future supplies
had ended "[b]ecause Leo [Graham] owed [them] on the
money on the marijuana and he refused to pay. And therefore,
[they] cut him off." J.A. 199. Specifically, Reeves explained
that the sixth shipment was the last shipment from Arizona:
There was a huge, basically, beef between myself,
Mr. Gallardo, and the people in Arizona because of
this marijuana, and because of the shortage, how
those [kilos] came short, and the money not come in.
So they basically shut us down.
J.A. 199.
UNITED STATES v. GRAHAM 5
Thereafter, Reeves asked Marshall to assist in persuading
Graham to pay the debt. Reeves and Marshall planned to tell
Graham that "Mexicans" were looking for him in hopes that
he would be intimidated into paying the debt. Id. at 203. Dur-
ing Reeves’s testimony, the government played three record-
ings1 of wiretapped phone conversations on Reeves’s phone.
The jurors were given binders containing transcripts of each
recording played during the trial. When a recording was
played, the prosecutor referenced the corresponding tab num-
ber in the transcript binder for the jury to follow along.
Justin Gallardo was the second cooperating codefendant to
testify. He testified that he transported cocaine from Arizona
to Maryland, helped Reeves distribute it in Baltimore, and
took the money earned from the sales to Arizona. Gallardo
confirmed that Graham received multiple kilograms of each
cocaine shipment the group received. He testified that he kept
tally sheets, which were seized in August 2008 during the
execution of a search warrant issued for his home. Gallardo
used the sheets to keep track of the amount and type of drug
each customer received and the money paid, and the portion
of the money to be returned to Arizona. Gallardo’s tally
sheets showed that Graham acquired cocaine and marijuana
from the group and that he owed or paid money for those
drugs.
1
Call number 1452 was played first, and it corresponded to "tab 8" in
the binder. During call 1452, Reeves and "Big Moe" spoke about Moe’s
attempts to locate Graham. "Big Moe" was another associate, and he was
offered a portion of the pay-out if he was successful in persuading Graham
to pay the debt.
The second call played was call 23, which corresponded to "tab 13" in
the binder. It consisted of Reeves talking with Gallardo about Marshall’s
attempts to get Graham to pay the debt. Reeves told Gallardo that Graham
had refused to pay.
The third call played was call 1454, which corresponded to "tab 9" in
the binder. The call was between Reeves and "Big Moe." Reeves
explained Marshall’s attempt to intimidate Graham by telling him "Esses"
were looking for him, and that Graham continued to refuse to pay the debt.
6 UNITED STATES v. GRAHAM
Marshall was the third cooperating codefendant to testify.
He explained that in early 2007 he began selling cocaine that
he received from a supplier named "Leonardo." Marshall
identified Graham as his supplier, "Leonardo." According to
Marshall, he would pick up kilogram quantities of cocaine
from Graham at Graham’s home. Marshall stated that in Octo-
ber 2007 he began to obtain his supply directly from Reeves.
Marshall testified that Reeves informed him that Graham
owed Reeves money,2 and at Reeves’s request, Marshall
agreed to talk to Graham. When he did so, Marshall told Gra-
ham that Mexican cocaine suppliers were looking for him. In
response, Marshall testified, Graham said he refused to give
any money to Reeves until he "gets some more product" —
"coke." J.A. 385.
After meeting with Graham, Marshall relayed the informa-
tion to Reeves via telephone. Call 22, which was "tab 12" of
the transcript binder, was played to the jury. In that call, Mar-
shall told Reeves that Graham had refused to pay the debt. In
this conversation, however, Marshall did not tell Reeves that
Graham wanted more drugs, and Marshall explained during
his testimony that this was because he (Marshall) did not like
to talk about drugs over the phone. Marshall did indicate dur-
ing the call, however, that Graham had said more, and that he
(Marshall) would discuss it with Reeves the next day.
In its rebuttal closing argument, the government replayed
the first twenty-three seconds of one of the conversations
between Reeves and "Big Moe." See supra n.1.
The district court instructed the jury that the actual
recorded conversations constituted the evidence, and not the
2
Call 20, which corresponded to "tab 11" of the transcript binder, was
played for the jury. In that call, Reeves asked Marshall to "pull it off" (i.e.,
get Graham to pay the debt), and told Marshall that he could "keep the
rest" if he could manage to get the debt paid. J.A. 664.
UNITED STATES v. GRAHAM 7
transcripts, which were simply aids to follow the conversa-
tions.
The jury convicted Graham of conspiracy to distribute five
kilograms or more of cocaine. The parties entered a stipula-
tion that stated that the exhibits from the trial would be "re-
tained by counsel who offered them, pending appeal." J.A.
503.
Graham was sentenced on November 6, 2009. During the
sentencing proceeding, the government reminded the district
court that it had filed an information under 21 U.S.C. § 851,
"noting that the Defendant had three prior felony drug
offenses." J.A. 515. The court asked whether there was a
mandatory minimum sentence in the case, and the govern-
ment confirmed that Graham faced a mandatory life sentence
as a result of the § 851 information. In response, the court
stated "[f]rankly, if I were applying 3553(a) factors, there is
no way that I would impose that sentence in this case . . . .
[I]t would be a severe sentence, but it would certainly not be
a life sentence that I am required to impose in this case." J.A.
516. The court imposed a sentence of life imprisonment. Gra-
ham filed a timely notice of appeal.
B.
We appointed appellate counsel for Graham. During his
research of appealable issues, counsel discovered that none of
the recordings played during trial had themselves been
recorded or transcribed by the court reporter during their pre-
sentation to the jury. Concerned that, as he had not been pres-
ent for trial, his incomplete knowledge of the trial record
might impede his representation of Graham before us, counsel
filed and we granted a consent motion to rescind the briefing
order to permit counsel to pursue relief before the district
8 UNITED STATES v. GRAHAM
court pursuant to Federal Rule of Appellate Procedure
("FRAP") 10.3
Thereafter, in summer 2011, the government provided to
counsel a copy of a CD containing the recordings and a copy
of the transcript binder. The district court held an evidentiary
hearing to determine which recordings were played for the
jury during trial. Prior to the hearing, the government submit-
ted two affidavits to the district court. One was of the lead
trial prosecutor, a former AUSA. The former AUSA stated
that he, his co-counsel, and the case agent, had reviewed the
DEA wiretaps in Graham’s case, and selected which calls
would be played at trial. He stated that he organized the prep-
aration of the transcripts for the calls they planned to play for
the jury, and checked the transcripts for errors prior to trial.
He stated that, based on his recollection, as refreshed by his
review of the trial transcript, the wiretap CD, and examination
of the transcript binder, he could "attest that the compact disk
provided to [him] by [the current AUSA] contains true and
accurate copies of the wiretap recordings played during the
trial in [Graham’s] case." J.A. 710. He specifically identified
which recorded calls from the duplicate CD had been played
3
Federal Rule of Appellate Procedure 10(e) provides as follows in perti-
nent part:
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly dis-
closes what occurred in the district court, the difference must be
submitted to and settled by that court and the record conformed
accordingly.
(2) If anything material to either party is omitted from or mis-
stated in the record by error or accident, the omission or misstate-
ment may be corrected and a supplemental record may be
certified and forwarded:
...
(B) by the district court before or after the record has been for-
warded . . .
FRAP 10(e).
UNITED STATES v. GRAHAM 9
at each reference in the trial transcript to a tape being played
to the jury.
During the hearing, the former AUSA testified consistently
with the averments in his affidavit. He stated that he was in
the courtroom when all of the recordings were played to the
jury. He further testified that in preparation for the hearing, he
reviewed each page of the trial transcript which indicated a
recorded call had been played and "compar[ed] them to the
transcripts and ma[de] sure that the transcripts were the tran-
scripts that related to those calls." J.A. 729.
The second affidavit submitted prior to the hearing was of
DEA Task Force Officer Detective William Nickoles. Nick-
oles stated that he was the case agent on Graham’s case and,
in that capacity, he reviewed wiretap recordings and the tran-
scripts of the recordings selected to be used at trial. He
asserted that he was present at trial when the calls were
played on August 18, 2009, and when the prosecutor played
a portion of a call during his rebuttal closing argument. Nick-
oles averred that he reviewed the contents of the CD that con-
tained copies of the recordings prepared for trial, and the copy
of the transcript binder prepared for the trial, and based on
that review and his best recollection of relevant events, he
could "attest that the compact disk provided to [him] by [the
current AUSA] contains the true and accurate copies of the
wiretap recordings played during the trial in [Graham’s]
case." J.A. 714.
Nickoles also testified at the hearing. He explained that,
while working as the case agent on Graham’s case, he had
reviewed every wiretap call in the case. He also stated that he
executed his affidavit after listening to the audio CD and
reviewing the transcript binder provided to him, which
together led him to conclude that they were accurate copies of
the originals used in Graham’s trial. Finally, he testified that
the transcribed portions of the five phone calls in the five tabs
10 UNITED STATES v. GRAHAM
in the transcript binder were played in their entirety, and only
the transcribed portions were played to the jury.
On July 25, 2012, the district court issued a Memorandum
Opinion and Order Confirming Record on Appeal, which
made findings as to which calls, and which portions of the
calls, were heard by the jury. Six tapes were played at trial,
covering five calls; one recording was replayed during the
government’s rebuttal argument. The district court "[found]
beyond a reasonable doubt that the wiretap recordings played
at trial were those indicated by the testimony and affidavits"
presented by the government. J.A. 804. Thereafter, the parties
resumed their briefing in this appeal.4
C.
Graham argues that the court reporter’s failure to transcribe
the contents of the wiretap conversations played to the jury
during trial constituted a violation of the Court Reporter Act
("CRA"), 28 U.S.C. § 753(b), and that the district court
lacked sufficient proof at the FRAP 10 hearing to conclude
definitively what wiretap recordings were played to the jury.
In response, the government argues that the district court’s
findings and conclusions are sound and that, even if the dis-
trict court erred in failing to ensure at trial that the wiretap
conversations played were recorded or transcribed contempo-
raneously by the court reporter, the error was resolved by the
district court’s FRAP 10 conclusions.
We review a district court’s compliance with the CRA de
novo. United States v. Brown, 202 F.3d 691, 696 (4th Cir.
2000).
The CRA states, in pertinent part:
4
In our summary of the evidence set forth above in section I.A. of this
opinion, we have interpreted the record fully in accordance with the dis-
trict court’s findings and conclusions.
UNITED STATES v. GRAHAM 11
Each session of the court and every other proceeding
designated by rule or order of the court or by one of
the judges shall be recorded verbatim . . . . Proceed-
ings to be recorded under this section include (1) all
proceedings in criminal cases had in open court
....
28 U.S.C. § 753(b).
We have not previously addressed the issue whether a dis-
trict court’s failure to ensure the transcription of audio record-
ings played during a trial constitutes a violation of the CRA.
We need not resolve the issue in this case, however, because
Graham is not entitled to relief on his claim in any event. In
United States v. Brown, we held that, although a defendant
has a right to a meaningful appeal, with the assistance of a
complete transcript, "omissions from a trial transcript only
warrant a new trial if ‘the missing portion of the transcript
specifically prejudices [a defendant’s] appeal.’" 202 F.3d 691,
696 (4th Cir. 2000) (quoting United States v. Gillis, 773 F.2d
549, 554 (4th Cir. 1985)). Thus, "‘to obtain a new trial,
whether or not appellate counsel is new, the defendant must
show that the transcript errors specifically prejudiced his abil-
ity to perfect an appeal.’" Brown, 202 F.3d at 696 (quoting
United States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999)).
Because we find the district court’s FRAP 10 findings were
amply supported by the evidence presented at the hearing and
enabled Graham to "perfect [his] appeal," we need not and do
not address whether the CRA was violated. Id.
D.
In reviewing the district court’s decision on a FRAP 10
motion, we consider the district court’s findings conclusive
"unless intentionally false or plainly unreasonable." United
States v. Hernandez, 227 F.3d 686, 695 (6th Cir. 2000) (citing
United States v. Zichettello, 208 F.3d 72, 93 (2nd Cir. 2000);
United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir. 1993);
12 UNITED STATES v. GRAHAM
United States v. Serrano, 870 F.2d 1, 12 (1st Cir. 1989);
United States v. Mori, 444 F.2d 240, 246 (5th Cir. 1971)).
Graham argues that the evidence presented at the FRAP 10
proceeding was insufficient to correct the lack of transcription
of the recordings played to the jury. This is so, he contends
conclusorily, because the trial court did not hear enough evi-
dence at the FRAP 10 hearing to find definitively which
recordings were played during the trial.
We disagree. The district court’s findings were adequately
supported by the evidence. First, the district court pointed to
the fact that both of the witnesses were closely involved in the
actual preparation of the original disc containing the record-
ings and transcript binder used at the trial. Both were present
throughout the trial. The district court also noted that the lead
trial prosecutor testified that he "very clearly" recalled which
recording was played in his rebuttal closing, and after review-
ing the trial transcript, the disc, and the transcript binder,
remembered which of the other recordings had been played.
J.A. 804-05. Lastly, the district court emphasized the fact that
"Graham [who attended the hearing with counsel] presented
no contradictory affidavits or testimony," and concluded that
the calls that were played were calls 20, 22, 23, 1452 and
1454. Id. at 805-06.
Based on the wealth of highly persuasive evidence before
the district court, we conclude the court had a sufficient basis
to find beyond a reasonable doubt that the copies of the disc
and transcript binder were genuine and accurate duplicates of
the calls that were played at trial. We have no hesitation in
concluding that Graham’s counsel has available in this case
an appellate record that fully and accurately reflects the pre-
trial and trial proceedings before the district court leading to
the jury’s verdict. Cf. Hernandez, 227 F.3d at 695.
UNITED STATES v. GRAHAM 13
E.
Graham next argues that the district court erred in admit-
ting the wiretap conversations of his coconspirators under
Federal Rule of Evidence ("FRE" or "Rule") 801(d)(2)(E)5
because the tapes merely captured "idle chatter" between
them about Graham’s past debt for marijuana, and because the
conversations were not in the course, or in furtherance, of a
conspiracy.
We review a district court’s admission of a statement under
Rule 801(d)(2)(E) for abuse of discretion. United States v.
Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). The abuse of
discretion standard is highly deferential, and a reviewing
court should not reverse unless the ruling is "manifestly erro-
neous." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)
(quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)).
The standard for admission of a coconspirator statement is
clear in this Circuit:
A statement is not hearsay if it is "a statement by a
co-conspirator of a party during the course and in
furtherance of the conspiracy" and is offered against
the party. Fed. R. Evid. 801(d)(2)(E). In order to
admit a statement under 801(d)(2)(E), the moving
5
Rule 801(d)(2)(E) provides:
(d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
(2) An Opposing Party’s Statement. The statement is offered
against an opposing party and:
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
The statement must be considered but does not by itself establish
. . . the existence of the conspiracy or participation in it under (E).
Fed. R. Evid. 801(d)(2)(E).
14 UNITED STATES v. GRAHAM
party must show that (i) a conspiracy did, in fact,
exist, (ii) the declarant and the defendant were mem-
bers of the conspiracy, and (iii) the statement was
made in the course of, and in furtherance, of the con-
spiracy. See, e.g., United States v. Heater, 63 F.3d
311, 324 (4th Cir. 1995). Idle conversation that
touches on, but does not further, the purposes of the
conspiracy does not constitute a statement in further-
ance of a conspiracy under Rule 801(d)(2)(E). See
United States v. Urbanik, 801 F.2d 692, 698 (4th Cir.
1986).
United States v. Pratt, 239 F.3d 640, 643 (4th Cir. 2001). "A
statement by a co-conspirator is made ‘in furtherance’ of a
conspiracy if it was intended to promote the conspiracy’s
objectives, whether or not it actually has that effect." United
States v. Shores, 33 F.3d 438, 443 (4th Cir. 1994), cert.
denied, 514 U.S. 1019 (1995).
The existence of the three prongs of admissibility for
coconspirator statements (existence of a conspiracy, member-
ship therein of defendant and declarants, and the statements
being made in the course of and in furtherance of that conspir-
acy) must be supported by a preponderance of the evidence.
See Blevins, 960 F.2d at 1255. The incorrect admission of a
statement under the coconspirator statement exclusion from
the definition of hearsay is subject to harmless error review.
United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986).
Graham first contends that the district court erred by not
making explicit findings on the existence of a conspiracy
prior to admitting the statements. This argument fails, how-
ever, because a trial court is not required to hold a hearing to
determine whether a conspiracy exists before admitting state-
ments under the rule, and the court need not explain the rea-
soning behind the evidentiary ruling. Blevins, 960 F.2d at
1256. We "may affirm a judgment where the record reveals
that the co-conspirator’s statements were plainly admissible,
UNITED STATES v. GRAHAM 15
whether or not a detailed rationale for admitting the state-
ments had been stated by the trial court." Id.
Next, Graham argues that each of the five recordings
played for the jury was nothing more than "profanity laden
conversation" about collecting a debt from Graham, but that
"[t]here’s no way that [conversations about] a ‘debt collect-
ing’ job" constituted coconspirator statements. Appellant’s
Br. at 65-66 (brackets added). In other words, Graham con-
tends that the conversations played for the jury were not "in
furtherance of a conspiracy" to distribute cocaine.
The government responds that the only issue surrounding
the admissibility of the statements is whether the conspiracy
continued to exist on June 27, 2008, when the recordings were
made. The government points to the efforts of Reeves and
Marshall to collect the unpaid sums from Graham so that the
money could be used to salvage the relationship with their
Arizona-based supplier as indicative that the conspiracy was
ongoing at the time of the calls. To the extent Graham is argu-
ing that he withdrew from the conspiracy, the government
adds, that claim must fail because it is the defendant who has
the burden of establishing withdrawal, and "‘[a] mere cessa-
tion of activity in furtherance of the conspiracy is insuffi-
cient.’" Gov’t’s Br. at 46-47 (quoting United States v. Walker,
796 F.2d 43, 49 (4th Cir. 1986)). The government contends
that although Graham may have refused to pay the debt, he
did not take affirmative action to withdraw from the conspir-
acy.
Additionally, the government argues the conversations
were "in furtherance of the conspiracy," because "it was nec-
essary for members of the conspiracy, Reeves and Marshall,
to discuss the status of the conspiracy, the status of its mem-
bers, and monies owed by one member to another." Gov’t’s
Br. at 57.
The government’s position is persuasive. The evidence
demonstrates that one of the primary reasons Reeves and
16 UNITED STATES v. GRAHAM
Marshall sought to collect the debt from Graham was to gain
funds to continue or re-establish their drug supply, which
according to their testimony at trial, had been plentiful before
Graham’s refusal to ante up dislocated their profitable enter-
prise. Additionally, the evidence shows that Graham himself
continued to want to engage in further drug activities with the
group by receiving more cocaine. There is, in contrast, no evi-
dence that Graham attempted to disavow the conspiracy and
communicate his departure to his coconspirators. See Smith v.
United States, 133 S. Ct. 714, 719 (2013) (holding that the
burden rests with the defendant to establish withdrawal from
a conspiracy). What we have said in the context of substantive
liability for a conspiracy offense applies with equal force in
the context of the admissibility of coconspirator statements:
"evidence of an internal conflict between [a defendant] and
other members of the conspiracy" is not alone sufficient to
undermine proof that coconspirator statements were made in
furtherance of and in the course of the conspiracy. See United
States v. Green, 599 F.3d 360, 369 (4th Cir.), cert. denied,
131 S.Ct. 271 (2010).
Even though Graham himself was not captured in a conver-
sation with a coconspirator in any of the 35,000 calls recorded
during the investigation of this case, and even though there
was adversity between Graham and his coconspirators, each
call played at trial contained discussions that rendered them
"in furtherance" of the overall conspiracy. The calls all con-
sisted of the speakers exchanging information about the status
of their efforts to collect the intra-conspiracy debt owed by
Graham. Some included discussions of the plan to give Gra-
ham the impression (to intimidate him into paying) that
"Esses" or "Mexicans" were looking for him to collect on the
debt, and most ended with the speakers planning the next time
they would discuss their efforts to persuade Graham to pay
up. It is apparent that debt collection was a primary aim of the
conspiracy at the time the calls were made, most likely
because recoupment of the unpaid funds had some bearing on
UNITED STATES v. GRAHAM 17
the group’s ability to receive additional narcotics from their
Arizona source.
In short, the district court’s admission of the challenged
statements was neither erroneous nor, it necessarily follows,
an abuse of discretion. Blevins, 960 F.2d at 1256.
II.
Finally, invoking the strongly-worded sentiments expressed
by the district court at sentencing to the effect that it would
not choose to impose a life sentence if it had a choice in the
matter,6 Graham challenges his mandatory life sentence.7
Although the argument is not made with great clarity, we
understand his principal purpose to be that he wishes to pre-
serve the issue in the event the Supreme Court should elect to
reexamine its holding in Almendarez-Torres v. United States,
523 U.S. 224 (1998).8 In any event, we are bound by
6
The district court stated:
In this case, if I did have my discretion, I would impose a harsh
sentence. It would be a sentence at the bottom of the guidelines.
It would be a 30-year sentence, which I find would be appropriate
and would meet the goals of 3553(a), because you certainly
deserve, I believe, every day of the sentence within the guide-
lines, but, as I said, at the bottom of the guidelines. I impose,
because I am required to, a sentence of life.
J.A. 528.
7
The government’s timely filing of a 21 U.S.C. § 851 information put
Graham on notice of its intent to prove at sentencing three prior felony
drug offense convictions, rendering Graham eligible for an enhanced sen-
tence under 21 U.S.C. § 841.
8
See, e.g., United States v. Mason, 628 F.3d 123, 133-34 (4th Cir.
2010):
Finally, Mason contends that the fact of his prior convictions
needed to be proved to a jury beyond a reasonable doubt.
Because that fact was not found by a jury beyond a reasonable
18 UNITED STATES v. GRAHAM
Almendarez–Torres unless and until the Supreme Court says
otherwise. Accordingly, we reject the challenge to Graham’s
sentence.
III.
For the reasons set forth, the judgment is
AFFIRMED.
doubt, he asserts, the use of the prior convictions to enhance his
sentence violated his Sixth Amendment rights. Mason candidly
acknowledges that this argument is presented for purposes of pre-
serving the issue for the Supreme Court and that, under the pres-
ent jurisprudence of Almendarez–Torres v. United States, 523
U.S. 224 (1998), such an argument cannot be sustained. We
agree. Moreover, we note that since Almendarez–Torres, the
Supreme Court has repeatedly affirmed the exception, as have
we. See Shepard v. United States, 544 U.S. 13, 25–26 & n. 5
(2005); Apprendi v. New Jersey, 530 U.S. 466, 488–90 (2000);
United States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005).