UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4720
ROBERT MOSES WILKERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-96-167-H)
Submitted: January 12, 1999
Decided: March 2, 1999
Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, John
Howarth Bennett, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury convicted Robert Moses Wilkerson of conspiracy to distrib-
ute and possess with intent to distribute crack cocaine in violation of
21 U.S.C. § 846 (1994) (Count 1), and using or carrying a firearm
during and in relation to a drug trafficking crime in violation of 18
U.S.C.A. § 924(c) (West Supp. 1998) (Counts 2, 3, and 8). The dis-
trict court sentenced him to life imprisonment on Count 1, a 60-month
consecutive sentence on Count 2, a 240-month consecutive sentence
on Count 3, and a 240-month consecutive sentence on Count 8.
Wilkerson appeals his convictions, asserting that the evidence was
insufficient to convict him under § 924(c) on Count 2, the Govern-
ment in its closing argument improperly stated that in order to acquit
Wilkerson the jury must find that Government witnesses conspired to
obtain a conviction, and the Government violated 18 U.S.C.A.
§ 201(c)(2) (West Supp. 1998), by promising leniency in exchange
for its witnesses' testimony. Wilkerson also appeals his sentence on
the grounds that the district court erred in sentencing him to life
imprisonment when it cross-referenced to the first-degree murder
guideline, see U.S. SENTENCING GUIDELINES MANUAL §§ 2D1.1(d),
2A1.1 (1995), and in sentencing him to three consecutive sentences
for the § 924(c) convictions in Counts 2, 3, and 8. Finding no revers-
ible error, we affirm.
I.
Wilkerson first asserts that the evidence was insufficient to convict
him of using or carrying a firearm on June 6, 1992, during and in rela-
tion to a drug trafficking crime (Count 2). In deciding whether the
evidence was sufficient, the relevant question is not whether the court
is convinced of guilt beyond a reasonable doubt, but rather whether
the evidence, when viewed in the light most favorable to the govern-
2
ment, was sufficient for a rational trier of fact to have found the
essential elements of the crime beyond a reasonable doubt. See United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868); Glasser v. United States, 315 U.S. 60, 80 (1942). If sub-
stantial evidence exists to support a verdict, the verdict must be sus-
tained. See Glasser, 315 U.S. at 80.
Testimony at trial discloses that Wilkerson was involved with
Ralph Winkfield, Chris Speights, Ralph Speights, and many others in
a conspiracy to distribute crack cocaine in the Fayetteville, North Car-
olina, area from January 1992 until approximately October 1996. On
June 6, 1992, officers stopped a car after they observed it leave a
house suspected of drug activity. Wilkerson was one of four occu-
pants in the car, and he was riding in the front passenger seat. Officers
discovered a semi-automatic weapon under Wilkerson's seat and 1.1
grams of crack cocaine in his sock. Wilkerson admitted ownership of
both the gun and drugs. Wilkerson told officers that he had traded the
gun for another gun earlier in the day. Finally, Ralph Winkfield testi-
fied that he was Wilkerson's sole supplier of crack cocaine in June
1992 and that he supplied Wilkerson with the 1.1 grams of crack.
To sustain a conviction under § 924(c), the Government must prove
that (1) defendant used or carried a firearm, and (2) he did so during
and in relation to a drug trafficking offense.1 See United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). We have defined "carry"
as "knowing possession and bearing, movement, conveyance, or
transportation of the firearm in some manner." Id. at 653; see also
Muscarello v. United States, ___ U.S. #6D 6D6D#, 66 U.S.L.W. 4459, 4463
(U.S. June 8, 1998) (Nos. 96-1654, 96-8837) (holding that "carry" in
§ 924(c) "includes the carrying of a firearm in a vehicle"). In addition,
"[a] firearm is carried `in relation to' a drug trafficking offense if it
has `some purpose or effect with respect to the drug trafficking crime'
and if its presence was not `the result of accident or coincidence.'"
Mitchell, 104 F.3d at 654 (quoting Smith v. United States, 508 U.S.
223, 238 (1993)).
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1 It is undisputed that Wilkerson's conduct in Count 2 did not amount
to use of the gun, as use is defined in Bailey v. United States, 516 U.S.
137, 143, 148 (1995).
3
Although Wilkerson admits that he possessed the gun, he asserts
that he did not carry it because he was not driving the vehicle in
which officers found the gun. The evidence at trial discloses that offi-
cers observed the car in which Wilkerson was riding leave a house
where officers believed drug activities occurred, the officers discov-
ered the gun under the front passenger seat where Wilkerson was rid-
ing, and Wilkerson had traded earlier in the day another weapon for
the one officers found. This evidence is sufficient to establish that
Wilkerson bore, moved, conveyed, or transported the gun in some
manner, regardless of the fact that he was not driving the car. See id.
at 653.
Wilkerson also contends that the evidence did not establish that he
carried the firearm "during and in relation to" the conspiracy. Wink-
field's testimony sufficiently linked the gun and drugs to the conspir-
acy because Winkfield supplied the 1.1 grams of crack to Wilkerson
during the time when the conspiracy was ongoing. See id. at 654.
Contrary to Wilkerson's contention that Winkfield's testimony alone
is insufficient as a matter of law to convict, uncorroborated testimony
of a single witness may be sufficient even if the witness is an accom-
plice or informant. See United States v. Wilson , 115 F.3d 1185, 1189-
90 (4th Cir. 1997). Finally, the jury had the opportunity to consider
Winkfield's testimony in light of his involvement in the conspiracy,
and we do not review the jury's credibility determination. See United
States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). We therefore find
that the evidence was sufficient to convict Wilkerson of the § 924(c)
violation charged in Count 2. See Mitchell, 104 F.3d at 652; Burgos,
94 F.3d at 862.
II.
Wilkerson next alleges that his convictions should be reversed
because the Government made improper remarks during its closing
argument when it suggested to the jury that in order to acquit Wilker-
son the jury must believe that the Government's witnesses conspired
to craft its case against Wilkerson in order to obtain some benefit for
themselves. Because Wilkerson did not object to the Government's
closing argument, our review is limited to review only for plain error.
See United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998). To
find plain error: (1) there must be an error; (2) the error must be plain;
4
(3) the error must affect substantial rights; and (4) if the first three
conditions are met, the reviewing court must determine that the for-
feited error "`seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings.'" United States v. Olano, 507 U.S. 725,
732-37 (1993) (quoting United States v. Atkinson , 297 U.S. 157, 160
(1936)).
The Government in its closing argument summarized the evidence
against Wilkerson on each count. In discussing the credibility of its
witnesses, the Government stated:
[R]emember what I told you in opening statement, the way
to catch drug dealers is with other drug dealers. . . . People
turn themselves in are convicted [sic]. They give informa-
tion on other people. That's how you put together cases on
more people. That's how it's done. And let's not be naive.
Anybody like that who takes the witness stand certainly
hopes that the information that they provide will get them
some benefit--everybody knows that. But they all testified,
they had to tell the truth. Without that, they get nothing. And
none of them ha[s] been promised anything. . .. Is this all
some sort of setup? I don't know. Why don't you ask[the
drug dealers who testified]. Ask them if they all sat down
in a room and decided to make all this up just to get some-
thing for themselves. People who weren't even together,
often didn't know each other. They had one thing in com-
mon, they all conspired to distribute crack cocaine with . . .
Wilkerson. That, they did have in common. So think about
it. Think about what makes sense to you.
(J.A. at 482-83). The Government then pointed out that defense coun-
sel questioned the witnesses' credibility on cross-examination but
continued that determining credibility was within the jury's province.
Reversal based upon improper remarks by the prosecutor during
closing argument is merited when the remarks actually were improper
and when they prejudicially affected defendant's substantial rights so
as to deprive him of a fair trial. See United States v. Chorman, 910
F.2d 102, 113 (4th Cir. 1990). Even if we assume, without deciding,
that Wilkerson satisfies the first prong--that the prosecutor's remarks
5
were improper--the comments were not sufficiently prejudicial so as
to deny Wilkerson a fair trial. See United States v. Young, 470 U.S.
1, 12-13 (1985) (discussing considerations relevant to issue of preju-
dice); Chorman, 910 F.2d at 113.
First, we note that reading the prosecutor's remarks in context, the
comments constituted only a small part of the Government's closing
argument and did not divert the jury's attention to extraneous matters.
Moreover, defense counsel extensively cross-examined the Govern-
ment witnesses about their plea agreements and possible sentence
reductions. Defense counsel also asked whether the witnesses had dis-
cussed their testimony with other witnesses prior to trial, to which
they responded that they had not. The prosecutor's comments there-
fore likely did not have a tendency to mislead the jury. Finally, absent
the remarks, the record discloses that the evidence was sufficient to
support Wilkerson's convictions. See Young, 470 U.S. at 12-13;
Chorman, 910 F.2d at 113. Because we conclude that the prosecutor's
comments did not substantially prejudice Wilkerson, we find no plain
error. See Olano, 507 U.S. at 732-37.
III.
Wilkerson asserts in his reply brief that his convictions should be
overturned because the Government secured witnesses' testimony in
exchange for favorable treatment in violation of 18 U.S.C.A.
§ 201(c)(2) (West Supp. 1998). As support for his contention, Wilker-
son relies on United States v. Singleton, 144 F.3d 1343 (10th Cir.
1998), reh'g en banc granted, 144 F.3d 1361 (10th Cir. July 10,
1998). The Government has moved to strike this portion of Wilker-
son's reply brief, arguing that the issue is not properly before the
court because it was not raised in Wilkerson's initial brief.
Although we deny the Government's motion to strike on the
ground that Singleton did not issue until after Wilkerson filed his ini-
tial brief, we decline to overturn his convictions. We note that the
Tenth Circuit has vacated the panel decision in Singleton. Moreover,
we are not aware of any such rule in this circuit. Finally, because
Wilkerson did not raise this novel argument at trial, we cannot say,
even assuming error, that any error was plain. See Olano, 507 U.S.
at 732-37.
6
IV.
Wilkerson also challenges his sentence on appeal, asserting that the
district court erred in sentencing him to life imprisonment on Count
1. We review the district court's legal determinations de novo, see
United States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996), and its
findings of fact for clear error. See United States v. Crump, 120 F.3d
462, 468 (4th Cir. 1997). "If the court's findings may rationally be
said to be supported by a preponderance of the evidence, they may
not be disturbed on appeal." Id.
Testimony at trial discloses that in November 1994, Chris Duffy,
a regular customer of Wilkerson's, was with Wilkerson and Chris and
Ralph Speights when Wilkerson and Duffy began arguing over
money that Duffy owed Wilkerson for drugs. Wilkerson shot Duffy
in the leg. Duffy begged Wilkerson to spare his life, but Wilkerson
shot Duffy in the head. When Duffy slumped to the ground, Wilker-
son fired another shot into Duffy's head. Wilkerson admitted shooting
Duffy to Winkfield but later blamed the shooting on Ralph Speights.
The probation officer recommended for the conspiracy count
(Count 1) a base offense level of forty-three. The officer relied on the
cross-reference in USSG § 2D1.1(d)(1) to apply the first-degree mur-
der guideline in USSG § 2A1.1, reasoning that Wilkerson's conduct
fell within 18 U.S.C.A. § 1111 (West Supp. 1998).2 With a total
offense level of forty-three and a criminal history category of I, the
applicable guideline range was life imprisonment. See USSG Ch. 5,
Pt. A.
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2 Section 1111 provides that
[m]urder is the unlawful killing of a human being with malice
aforethought. Every murder perpetrated by . . . willful, deliber-
ate, malicious, and premeditated killing; or committed in the per-
petration of . . . any . . . murder . . .; or perpetrated from a
premeditated design unlawfully and maliciously to effect the
death of any human being other than him who is killed, is mur-
der in the first degree.
18 U.S.C.A. § 1111(a).
7
Sentencing on a drug conspiracy conviction is controlled by USSG
§ 2D1.1. That section includes a cross-reference that applies "[i]f a
victim was killed under circumstances that would constitute murder
under 18 U.S.C. § 1111 had such killing taken place within the terri-
torial or maritime jurisdiction of the United States." USSG
§ 2D1.1(d)(1). In such cases, the sentencing court is to "apply § 2A1.1
(First Degree Murder)." Id. In turn, USSG§ 2A1.1 simply states
"Base Offense Level: 43." Thus, if the district court finds by a pre-
ponderance of the evidence that a victim was murdered in relation to
the federal crime or crimes for which defendant was convicted, it
must apply a base offense level of forty-three.
Wilkerson first asserts that the application of the cross-reference to
the first-degree murder guideline resulted in impermissible double
counting. He argues that applying the cross-reference essentially is
the same as applying the specific offense characteristic in USSG
§ 2D1.1(b)(1) (providing for a two-level enhancement if a dangerous
weapon--including a firearm--was possessed) because the murder
used to enhance his sentence on the conspiracy count also was the
basis for his § 924(c) conviction on Count 8. Because the guidelines
explicitly forbid as double counting the application of USSG
§ 2D1.1(b)(1) when defendant has been convicted of a § 924(c)
offense, see USSG § 2K2.4, comment. (n.2), Wilkerson asserts that
the application of the cross-reference also is impermissible double
counting.
The guidelines, however, do not explicitly prohibit the imposition
of both the cross-reference in USSG § 2D1.1(d)(1) and a consecutive
sentence on a § 924(c) conviction. Moreover, Wilkerson has not cited
any authority directly on point to support his position, nor have we
found any. Even without an express prohibition, Wilkerson contends
that the guidelines did not intend for him to be punished twice for the
same conduct.
Wilkerson asserts that the same conduct was used to apply the
cross-reference and the consecutive sentence on the§ 924(c) offense.
Although the same underlying facts surrounding Chris Duffy's mur-
der were used to enhance Wilkerson's sentence by applying the cross-
reference and to impose a consecutive sentence on the § 924(c)
offense, the triggering event for each application is different. For the
8
cross-reference, the triggering event was the murder; for the consecu-
tive sentence under § 924(c), the triggering event was the fact that
Wilkerson used or carried the firearm. Because the cross-reference
and the consecutive sentence address separate and distinct acts, we
find that application of both was not contrary to the guidelines' intent.
Wilkerson finally contends that even if the cross-reference was
appropriate, the evidence did not establish premeditation. Contrary to
Wilkerson's assertion, however, the Government established premedi-
tation by a preponderance of the evidence. See Crump, 120 F.3d at
468. During an argument between Wilkerson and Duffy over money
owed to Wilkerson for drugs, Wilkerson shot Duffy in the leg. Duffy
pleaded for his life, but Wilkerson twice shot him in the head--once
after Duffy had slumped to the ground. Although Wilkerson chal-
lenges Chris Speights' credibility, we do not review the fact finder's
credibility determinations. See Wilson, 118 F.3d at 238. We therefore
find that the district court's findings were not clearly erroneous.
V.
Next, Wilkerson challenges his sentences for his§ 924(c)
convictions--60 months on Count 2, 240 months on Count 3, and 240
months on Count 8--claiming that the district court erred in ordering
that Wilkerson serve each § 924(c) sentence consecutively. We have
held, however, that multiple, consecutive sentences under § 924(c) are
appropriate whenever there have been multiple, separate acts of using
or carrying a firearm, even when all of those acts relate to a single
predicate offense. See United States v. Camps , 32 F.3d 102, 108 (4th
Cir. 1994). Wilkerson was convicted of multiple, separate incidents
of using or carrying a firearm during the course of a drug distribution
conspiracy. Thus, under the reasoning in Camps , the district court did
not err in sentencing Wilkerson to three consecutive sentences for his
§ 924(c) convictions.
VI.
Accordingly, we affirm Wilkerson's convictions and sentence and
deny the Government's motion to strike. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
9
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
10