PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4391
DONNA CONZUELLA JOHNSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4392
JOHN ALBERT MARTIN, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 06-4527
CRAIG ARNOLD SCOTT, a/k/a Craig
Levi,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:04-cr-00235-RWT)
2 UNITED STATES v. JOHNSON
Argued: September 24, 2009
Decided: December 2, 2009
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Shedd and Judge Agee joined.
COUNSEL
ARGUED: Gregory Bruce English, ENGLISH & SMITH,
Alexandria, Virginia; Daniel H. Ginsburg, BENNETT &
BAIR, LLC, Greenbelt, Maryland; Jason E. Silverstein,
ROLAND WALKER & MARK ZAYON, PA, Baltimore,
Maryland, for Appellants. Deborah A. Johnston, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland,
for Appellee. ON BRIEF: Gary E. Bair, BENNETT & BAIR,
LLC, Greenbelt, Maryland, for Appellant John Albert Martin,
Jr.; Roland Walker, ROLAND WALKER & MARK
ZAYON, PA, Baltimore, Maryland, for Appellant Craig
Arnold Scott. Rod J. Rosenstein, United States Attorney, Bal-
timore, Maryland, Bonnie S. Greenberg, Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Donna C. Johnson, Craig A. Scott, and John A. Martin
were convicted of conspiracy and other offenses in relation to
the distribution of narcotics. On appeal, they raise various
UNITED STATES v. JOHNSON 3
claims, some collectively and others individually. After care-
ful consideration, we find that these claims lack merit, and we
affirm the judgment of the district court.
I.
This case involves an extensive drug-trafficking organiza-
tion that operated in Maryland, the District of Columbia, New
York, and elsewhere. The major figures in this organization
included Paulette Martin, Gwendolyn Levi, and Moises
Uriarte. From March until June 2004, investigators, acting
with court authorization, tapped Paulette Martin’s phone
lines. From these wiretaps, they learned that Paulette Martin
was obtaining heroin from Levi. As a result, they obtained
authorization to tap Levi’s cellular phone line and intercepted
her communications with her heroin supplier, Uriarte. In June
2004, the investigation culminated in the arrest of over thirty
individuals and the execution of over twenty search warrants.
Johnson, Scott, and John Martin were each tied to the orga-
nization in different ways. Johnson accompanied Levi to pur-
chase heroin from Uriarte on at least one occasion. On April
23, 2004, officers observed Johnson and Levi drive from
Levi’s Maryland residence to a furniture store in New York
City to meet Uriarte. Levi entered the store carrying a box
containing about a quarter of a million dollars and exited with
a gift-wrapped package that she placed in the trunk of the
vehicle. That night, Johnson and Levi drove back into Mary-
land, where state police pulled them over. The police searched
the trunk and seized the package, which contained approxi-
mately 2300 grams of heroin. Johnson and Levi were then
arrested.
Scott is Levi’s son. Calls intercepted in April 2004 revealed
that he helped Levi process and distribute heroin. On one
occasion, he complained to Levi that several of his heroin
customers were "on hold." Levi instructed him to obtain fifty
grams of heroin from her basement, and he later confirmed
4 UNITED STATES v. JOHNSON
that he had done so. On another occasion, Levi asked Scott to
go to her house and package some heroin for distribution,
which Scott later confirmed he had done. Subsequent to
Levi’s arrest, officers executed a search warrant at her home
and found a heroin processing operation in her basement, the
location from which she had directed Scott to obtain the her-
oin.
John Martin resided with Paulette Martin in Maryland and
helped her distribute cocaine and heroin.* Investigators inter-
cepted numerous phone calls in which John Martin discussed
his drug-trafficking activities with Paulette Martin and others.
On one occasion, John Martin and Paulette Martin discussed
moving her drug supply from their residence to a performing
arts school, which Paulette Martin used as a front for various
illegal activities. On June 1, 2004, officers executed search
warrants at both their residence and the school. At the resi-
dence, they discovered, among other things, cocaine, cocaine
base, over $7000 in cash, a digital scale, and a sheet of paper
indicating money owed to "Gwen." They also recovered a
black shaving kit, containing heroin, cocaine, and an employ-
ment check in John Martin’s name. At the school, they dis-
covered, among other things, more cocaine, cocaine base, and
heroin—much of which was packaged for distribution.
Johnson, Scott, and John Martin were among many individ-
uals indicted in connection with this drug conspiracy in the
United States District Court for the District of Maryland. The
three were tried together in November and December 2005.
On December 22, 2005, a jury convicted all three defendants
of conspiring to distribute and possess with intent to distribute
controlled substances in violation of 21 U.S.C. § 846 (2006).
In addition, Johnson was convicted of traveling in interstate
commerce in the commission of unlawful activity in violation
of 18 U.S.C. § 1952 and possession with intent to distribute
*According to Martin’s brief, he and Paulette Martin have never been
married and are not related.
UNITED STATES v. JOHNSON 5
heroin in violation of 21 U.S.C. § 841. Scott was convicted of
the use of a communications device to facilitate narcotics traf-
ficking in violation of 21 U.S.C. § 843(b) and possession with
intent to distribute heroin in violation of 21 U.S.C. § 841.
Lastly, the jury convicted Martin of three counts of the use of
a communications device to facilitate narcotics trafficking in
violation of 21 U.S.C. § 843(b).
The district court sentenced Johnson to 135 months impris-
onment and five years supervised release, Scott to 150 months
imprisonment and five years supervised release, and Martin to
375 months imprisonment and ten years supervised release.
On appeal, Johnson, Scott, and Martin raise various claims,
some collectively and some individually. Collectively, they
contend, first, that the district court abused its discretion by
not granting a mistrial when a government witness refused to
testify and, second, that they were prejudiced by prosecutorial
vouching during closing argument. Individually, Johnson
challenges the sufficiency of the evidence supporting her
three convictions. Also individually, Martin challenges the
admission of expert testimony and a prior conviction. He also
raises two sentencing issues. We address these claims in turn
and set forth additional facts as they become necessary.
II.
The defendants first contend that the district court abused
its discretion by not granting a mistrial when Gwendolyn
Levi, a government witness, took the stand and refused to tes-
tify. According to the defendants, the government put Levi on
the stand with the knowledge that she would refuse to testify
and thereby cause the jury to infer that she had incriminating
information about the defendants.
A.
Levi entered into a plea agreement with the government
that required her to testify at trial. But on the night before she
6 UNITED STATES v. JOHNSON
was scheduled to take the stand, she met with prosecutors and
informed them that she no longer intended to testify. She did
not, however, provide any explanation for her change of heart,
nor did she indicate that she might invoke her Fifth Amend-
ment privilege against self-incrimination. During the meeting,
she was extremely emotional and said that some of her family
members were encouraging her to testify. By the end, she
agreed to reconsider the matter overnight, taking her family’s
advice into account.
The next day, the government called Levi to the stand. She
took the oath and answered a few questions about her back-
ground. After testifying that she was arrested in April 2004,
she refused to answer any more questions. At that point, the
district court excused the jurors and then questioned Levi out-
side of their presence. Levi stated that she simply did not wish
to testify and denied that she was concerned about incriminat-
ing herself or her son, Craig Scott. After consulting with her
attorney, however, she informed the court that she did not
wish to testify because of her privilege against self-
incrimination. In response, the government obtained an
immunity order to compel her to testify, but Levi still refused.
Ultimately, the district court held Levi in contempt of court
and gave the following instruction to the jury:
You may recall that a witness by the name of Gwen-
dolyn Levi was called to the stand and testified
briefly, and then she decided she did not wish to tes-
tify further. I have ordered her testimony stricken.
You should disregard in its entirety everything you
heard out of the mouth of Gwendolyn Levi. You
should also draw no inference in any way, shape or
manner concerning her decision that she did not wish
to further testify.
J.A. 1785. The district court also denied the defendants’
motion for a mistrial. It specifically found that the govern-
UNITED STATES v. JOHNSON 7
ment had engaged in no misconduct regarding Levi’s
expected testimony and that any inference that was created by
Levi’s refusal to testify did not add critical weight to the gov-
ernment’s case.
B.
We review a district court’s denial of a motion for a mis-
trial for abuse of discretion. United States v. Allen, 491 F.3d
178, 189 (4th Cir. 2007). The Supreme Court has noted two
circumstances in which a government witness’s invocation of
a testimonial privilege may constitute reversible error. Namet
v. United States, 373 U.S. 179, 186-87 (1963). The first is
"when the Government makes a conscious and flagrant
attempt to build its case out of inferences arising from use of
the testimonial privilege." Id. at 186. The second is when "in-
ferences from a witness’ refusal to answer added critical
weight to the prosecution’s case in a form not subject to
cross-examination, and thus unfairly prejudiced the defen-
dant." Id. at 187. Neither of these circumstances was present
here.
Regarding the first, the district court specifically found "no
basis to find any misconduct on the part of the prosecutor,"
and the record supports that conclusion. J.A. 2721. While the
government knew that Levi was hesitant to testify, it had a
reasonable basis to expect that she would. First of all, she
risked violating her plea agreement if she refused. Second,
she indicated that some of her family members were encour-
aging her to testify and said that she would take their advice
into account. Third, she did take the stand and recite the oath;
at that point, it was reasonable for the government to assume
that she had resolved her internal conflicts and decided to ful-
fill her commitment to testify. What is more, once Levi finally
invoked her Fifth Amendment privilege, the government
promptly obtained an immunity order to compel her to testify.
This is not a case where the government attempted to build its
case out of improper inferences. The record is clear that the
8 UNITED STATES v. JOHNSON
prosecution wanted Levi to testify and reasonably expected
she would.
Regarding the second, the district court also specifically
found "no basis for concluding that . . . there[ ] [was] preju-
dice" to the defendants, and the record supports this conclu-
sion as well. J.A. 2722. There is reason to doubt that Levi’s
appearance had much effect; this was a brief episode in a
month-long trial in which the government presented substan-
tial evidence of the defendants’ guilt. But even if Levi’s
refusal to testify did prejudice the defendants, that prejudice
was cured by the district court’s instruction. That instruction
let the jurors know in no uncertain terms that they were to dis-
regard her appearance entirely and draw no inferences from
her refusal to testify. We presume that juries follow such
instructions. Richardson v. Marsh, 481 U.S. 200, 206 (1987).
And we see no reason why that presumption should be rebut-
ted here. Accordingly, we find that the district court did not
abuse its discretion in declining to grant a mistrial.
III.
All three defendants next contend that the prosecutor
improperly vouched for the credibility of the government’s
witnesses during her closing argument. Near the outset of her
closing argument, the prosecutor stated to the jury, "I’m con-
vinced, by the close of the arguments, that you will find there
is sufficient evidence to find each and every one of the defen-
dants guilty beyond a reasonable doubt." J.A. 2585. Defense
counsel objected that she was stating a personal opinion, and
the district court instructed her, "Just state what you think the
evidence will show." J.A. 2585-86. The prosecutor continued,
"I think, based on the evidence presented, that you will find
each and every one of the defendants guilty beyond a reason-
able doubt of each and every one of the counts of the indict-
ment before you." J.A. 2586. She then proceeded to describe
the evidence to the jury.
UNITED STATES v. JOHNSON 9
The defendants argue that, by using the phrases "I’m con-
vinced" and "I think," the prosecutor improperly conveyed her
personal opinion that the government’s witnesses were credi-
ble. We disagree.
A prosecutor may not vouch for government witnesses dur-
ing her closing argument. United States v. Sullivan, 455 F.3d
248, 259 (4th Cir. 2006). "Vouching generally occurs when
the prosecutor’s actions are such that a jury could reasonably
believe that the prosecutor was indicating a personal belief in
the credibility of the witness." United States v. Lewis, 10 F.3d
1086, 1089 (4th Cir. 1993). The rule against vouching exists
because "the prosecution’s opinion carries with it the impri-
matur of the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the evi-
dence." United States v. Young, 470 U.S. 1, 18-19 (1985).
In this case, the prosecutor did not engage in vouching by
using the phrases "I’m convinced" and "I think." The remarks
here are similar to the ones at issue in United States v. Adam,
where this court found that a prosecutor used phrases like "I
think" in an "innocuous, conversational sense" rather than as
"an attempt to replace the evidence with the prosecutor’s per-
sonal judgments." 70 F.3d 776, 780 (4th Cir. 1995). The same
is true here. A reasonable juror, looking at these remarks in
context, would have taken them as nothing more than an "in-
nocuous, conversational" way for the prosecutor to introduce
her review of the evidence. The prosecutor did not follow up
"I think" by suggesting that a witness was trustworthy;
instead, she proceeded to say that "based on the evidence
presented" the jury would find the defendants guilty and then
discussed that very evidence.
At oral argument, the defendants urged us to hold that pros-
ecutors must use more impersonal phrases such as "I submit"
or "I contend" in lieu of "I’m convinced" or "I think." We
decline to do so. We doubt that the difference between these
two sets of phrases has much practical import. But even if we
10 UNITED STATES v. JOHNSON
were to grant that it is preferable for prosecutors to use the
former, "we recognize that great latitude is accorded counsel
in presenting closing arguments to a jury." United States v.
Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004), sentence
vacated on other grounds by Olliviere, 543 U.S. 1112 (2005).
In our adversary system, prosecutors are permitted to try their
cases with "earnestness and vigor," Berger v. United States,
295 U.S. 78, 88 (1935), and "the jury is entrusted within rea-
son to resolve . . . heated clashes of competing views." Bates
v. Lee, 308 F.3d 411, 422 (4th Cir. 2002).
Closing argument, in particular, is a time for energy and
spontaneity, "not merely a time for recitation of uncontro-
verted facts." United States v. Francisco, 35 F.3d 116, 120
(4th Cir. 1994). It should not be subject to a voluminous code
of courtroom etiquette. For if it were, prosecutors would be
left to walk on egg shells, and the quality of advocacy would
suffer. To be sure, there are some lines that prosecutors may
not cross. See, e.g., Griffin v. California, 380 U.S. 609, 615
(1965) (commenting on a defendant’s decision not to testify).
But to parse through a prosecutor’s closing statement for
minor infelicities loses sight of the function of our adversary
system, which is to engage opposing views in a vigorous
manner.
The defendants also contend that the remarks in question
created the impression that the prosecutor had information
from Gwendolyn Levi indicating that the defendants were
guilty that was not available to the jury. In support of this the-
ory, the defendants point out that the prosecutor alluded to
Levi’s anticipated testimony in her opening statement but that
Levi never actually testified at trial. Although the defendants
do not frame it as such, their argument appears to be a claim
of improper bolstering. See United States v. Sanchez, 118
F.3d 192, 198 (4th Cir. 1997) ("[B]olstering is an implication
by the government that the testimony of a witness is corrobo-
rated by evidence known to the government but not known to
the jury."). Regardless of how the argument is framed, it has
UNITED STATES v. JOHNSON 11
no merit. The prosecutor made no reference to Levi’s aborted
testimony in her closing statement. It is thus pure speculation
to suppose that the jury understood the phrases "I’m con-
vinced" and "I think" to be a subtle hint involving Levi.
Finally, even if we were somehow inclined to find that the
disputed comments were improper, no retrial would be neces-
sary because the defendants have failed to show that the com-
ments so prejudicially affected their substantial rights as to
deprive them of a fair trial. See United States v. Jones, 471
F.3d 535, 542 (4th Cir. 2006); Sanchez, 118 F.3d at 198.
IV.
We now turn to the individual claims. Johnson’s sole indi-
vidual claim is that the evidence presented at trial was insuffi-
cient to support her three convictions. She contends that the
evidence against her consisted of little more than the fact that
she was driving a car in which drugs were found. But the
record actually shows that the government presented substan-
tial other evidence of her guilt. Among other things, it pro-
duced a telephone call in which Levi and Johnson discussed
whether Levi had been in contact with Uriarte and testimonial
and video evidence that Johnson was very nervous during the
stop of the vehicle. We have carefully reviewed this evidence
under the standard in United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (en banc), and we conclude it was suf-
ficient to support the jury’s verdict.
V.
Martin raises four individual claims. First, he contends that
the district court admitted the testimony of two expert wit-
nesses in violation of his Sixth Amendment right "to be con-
fronted with the witnesses against him" because the experts
based their opinions in part on testimonial statements from
unidentified declarants.
12 UNITED STATES v. JOHNSON
A.
As noted above, the government received court authoriza-
tion and intercepted telephone calls between various members
of the drug conspiracy. To help the jury interpret those calls
at trial, the government presented two police officers, Ser-
geant Christopher Sakala and Corporal Thomas Eveler, as
experts on the subject of drug trafficking. Both officers had
extensive training and experience, and Martin does not ques-
tion their qualifications.
Sakala and Eveler testified that several seemingly innocu-
ous terms used in these calls, such as "tickets" and "T-shirts,"
were actually code words for narcotics. Sakala explained how
he reached his conclusions. Because drug traffickers fre-
quently use code words to avoid detection, he looked for "pat-
terns of conversation[ ] that [did not] make sense." J.A. 161.
For example, members of this conspiracy often discussed
buying and selling large numbers of "tickets" but did not
specify "which shows they wanted tickets for . . . . where they
wanted to sit, [or] what days they wanted to go to the show."
J.A. 162. Therefore, it became "obvious" in his view that
"tickets" was a code word for narcotics. Id.
Likewise, Eveler explained that he decoded the conversa-
tions by looking for unusual "pattern[s] of speech." J.A. 416.
During Eveler’s cross-examination, the following occurred.
Eveler was asked if he was basing his conclusions on "con-
text, . . . the manner of speaking and a variety of other mat-
ters," and he responded:
Yes, I’m basing it on the context—as you said, I’m
basing it on other events occurring around the time
of the intercepted call. I’m basing it on the known
nature of the organization. I’m basing it on infor-
mant information, on interviews I’ve done, on evi-
dence that was seized and on the entire—on all the
UNITED STATES v. JOHNSON 13
facts that were developed the course of the investiga-
tion.
J.A. 740. Martin then objected that Eveler was presenting tes-
timonial hearsay to the jury. The district court overruled the
objection, explaining:
Someone who gives opinions on the meanings of
terms of drug transactions has got to rely upon not
just what they’ve heard on a particular tape but upon
their experience in the field of drug communications
and that may have come about through being on the
streets. These are things that form their expertise. I
think it’s more than the scope of traditional expert
testimony for him to rely upon some things.
I’m not going to allow him to come in here and tes-
tify to the things that would be classic hearsay testi-
mony about what someone else in this case told him,
. . . that’s not what I’m going to do. I think the foun-
dation for the opinions he gives can include informa-
tion he learns through activities on the streets and
through discussions with informants in a general
sense of how drug people communicate with each
other.
J.A. 743-44.
Later in the trial, Sakala took the stand again. On direct
examination, he explained that he considered several sources
of information, such as evidence that had been seized during
the investigation, before reaching a conclusion about the
meaning of a particular conversation. In addition, he took into
account "interviews with witnesses, cooperators, [and] coop-
erating defendants." J.A. 1170. Martin again objected, and the
district court overruled on the same grounds as above.
On appeal, Martin contends that the district court’s rulings
violated the Confrontation Clause as interpreted by Crawford
14 UNITED STATES v. JOHNSON
v. Washington, 541 U.S. 36 (2004), because the experts based
their opinions on testimonial interviews with informants and
cooperating witnesses.
B.
In Crawford, the Supreme Court held that the Confronta-
tion Clause bars the "admission of testimonial statements of
a witness who did not appear at trial unless he was unavail-
able to testify, and the defendant had a prior opportunity for
cross-examination." 541 U.S. at 53-54. "[F]or a statement to
be testimonial, the declarant must have had a reasonable
expectation that his statements would be used prosecutorially
. . . ." United States v. Udeozor, 515 F.3d 260, 269 (4th Cir.
2008). Crawford forbids the introduction of testimonial hear-
say as evidence in itself, but it in no way prevents expert wit-
nesses from offering their independent judgments merely
because those judgments were in some part informed by their
exposure to otherwise inadmissible evidence.
An expert witness’s reliance on evidence that Crawford
would bar if offered directly only becomes a problem where
the witness is used as little more than a conduit or transmitter
for testimonial hearsay, rather than as a true expert whose
considered opinion sheds light on some specialized factual sit-
uation. Allowing a witness simply to parrot "out-of-court tes-
timonial statements of cooperating witnesses and confidential
informants directly to the jury in the guise of expert opinion"
would provide an end run around Crawford. United States v.
Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007). For this reason,
an expert’s use of testimonial hearsay is a matter of degree.
See Ross Andrew Oliver, Note, Testimonial Hearsay as the
Basis for Expert Opinion: The Intersection of the Confronta-
tion Clause and Federal Rule of Evidence 703 After Crawford
v. Washington, 55 Hastings L.J. 1539, 1560 (2004)(describing
a "continuum of situations" in which experts rely on testimo-
nial hearsay). The question is whether the expert is, in
essence, giving an independent judgment or merely acting as
UNITED STATES v. JOHNSON 15
a transmitter for testimonial hearsay. As long as he is apply-
ing his training and experience to the sources before him and
reaching an independent judgment, there will typically be no
Crawford problem. The expert’s opinion will be an original
product that can be tested through cross-examination.
This is as it should be because expert witnesses play a valu-
able role in our criminal justice system. As recognized in Fed-
eral Rule of Evidence 702, experts often "assist the trier of
fact to understand the evidence or to determine a fact in
issue." To better fulfill this role, experts are permitted to con-
sider otherwise inadmissible evidence as long as it is "of a
type reasonably relied upon by experts in the particular field."
Fed. R. Evid. 703. Some of the information experts typically
consider surely qualifies as testimonial under Crawford. Were
we to push Crawford as far as Martin proposes, we would dis-
qualify broad swaths of expert testimony, depriving juries of
valuable assistance in a great many cases. Here, for example,
it was permissible for the district court to conclude that the
expert testimony would help the jury understand exchanges
that might otherwise appear nonsensical or impenetrable.
It is nonetheless appropriate for district courts to recognize
the risk that a particular expert might become nothing more
than a transmitter of testimonial hearsay and exercise their
discretion in a manner to avoid such abuses. Turning to the
facts here, there is no question that Sakala and Eveler did not
become mere transmitters of testimonial hearsay. Assuming
for the sake of argument that the interviews they considered
were testimonial, the experts never made direct reference to
the content of those interviews or even stated with any partic-
ularity what they learned from those interviews. Instead, each
expert presented his independent judgment and specialized
understanding to the jury. That understanding was not surpris-
ingly the product of the accumulation of experience over
many years of investigation of narcotics organizations and
contacts with the informants and witnesses who operate
within them. Sakala and Eveler explained how, based on their
16 UNITED STATES v. JOHNSON
knowledge of narcotics trafficking, they were able to identify
odd conversational patterns in the phone calls and decipher
various code words. The fact that their expertise was in some
way shaped by their exposure to testimonial hearsay does not
mean that the Confrontation Clause was violated when they
presented their independent assessments to the jury. Because
they did not become mere conduits for that hearsay, their con-
sideration of it poses no Crawford problem.
This case differs, for example, from the Second Circuit’s
case in United States v. Mejia, 545 F.3d 179 (2d Cir. 2008).
In that case, an expert stated, among other things, that a gang
"taxed" non-gang members who wanted to deal drugs in bars
controlled by the gang. The expert explained that he was told
this important fact "by a gang member" during a custodial
interview. Id. at 188. In other words, the expert simply passed
along an important testimonial fact he learned from a particu-
lar interview. Thus, it was hard to believe that he applied any
independent expertise to the substance of his testimony. Id. at
199. Nothing of that sort happened here, however. The
experts were applying their expertise, derived over many
years and from multiple sources, to interpret the transcripts of
phone conversations. And the district court took pains to
guard against the danger that the experts would become, in
essence, mere conduits for testimonial hearsay. As it
explained with regard to Officer Sakala, "He is not being
asked to provide what someone else told him. He is using his
information and his experience and whatever other informa-
tion he may have derived from his investigation to interpret
what is being said during this phone call . . . ." J.A. 1171.
In addition to providing independent judgments, the experts
in this case were in fact subject to cross-examination, as
required by the Confrontation Clause. This availability for
cross-examination sets the circumstances here apart from
those presented in Melendez-Diaz v. Massachusetts, 129 S.
Ct. 2527 (2009). There, the government produced an expert’s
testimony in the form of an affidavit but did not put the expert
UNITED STATES v. JOHNSON 17
on the stand or demonstrate both that the expert was unavail-
able and the defendant had a prior opportunity to cross-
examine him. Id. at 2532. Here, however, both experts took
the stand. Therefore, Martin and his co-defendants, unlike the
defendant in Melendez-Diaz, had the opportunity to test the
experts’ "honesty, proficiency, and methodology" through
cross-examination. Id. at 2538. And judging from the record,
they did so effectively. For example, Sakala conceded during
cross-examination that there were some conversations in
which the word "tickets" was actually being used in its normal
sense. This situation was, therefore, a far cry from the one in
Melendez-Diaz where the expert was nowhere to be found.
Where, as here, expert witnesses present their own indepen-
dent judgments, rather than merely transmitting testimonial
hearsay, and are then subject to cross-examination, there is no
Confrontation Clause violation. Accordingly, we find no error
in the admission of Sakala and Eveler’s testimony.
VI.
Martin next contends that the district court abused its dis-
cretion by admitting his 1980 conviction for armed robbery
for impeachment purposes. Assuming that the district court
erred in admitting these convictions, we conclude that the
error was harmless.
A.
Although the record is murky, the facts relevant to Martin’s
claim appear to be as follows. Before Martin took the stand,
the government sought permission from the district court to
impeach him with his 1980 conviction for robbery with a
deadly weapon and use of a handgun under Federal Rule of
Evidence 609. Under this rule, evidence of a prior conviction
punishable by over one year of imprisonment is admissible
for impeachment purposes "if the court determines that the
probative value of admitting this evidence outweighs its prej-
18 UNITED STATES v. JOHNSON
udicial effect to the accused." Fed. R. Evid. 609(a)(1). If,
however, "a period of more than ten years has elapsed since
the date of the conviction or of the release of the witness from
the confinement imposed for that conviction, whichever is the
later date," then evidence of the conviction is inadmissible
unless "the court determines, in the interests of justice, that
the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial
effect." Fed. R. Evid. 609(b).
Confusion arose about whether Martin had been confined
for his 1980 conviction within ten years of the 2005 trial. The
government produced two reports which suggested that Mar-
tin had been paroled for the conviction in November 1988 but
reincarcerated from April 2000 until May 2001 due to a
parole violation. According to Martin, however, these reports
did not reflect the fact that the relevant commissioner deter-
mined that he was not in violation of his parole and conse-
quently restored him to his previous parole status. In Martin’s
view, the operative date for purposes of Rule 609 was there-
fore November 1988, not May 2001.
The district court took the government’s view and admitted
the prior conviction under Rule 609(a)(1). As a result of that
ruling, the government used the conviction to impeach Martin
during cross-examination.
After the jury convicted Martin in this matter, the probation
office prepared a presentence report. The report indicated that
Martin had been paroled for his 1980 conviction in November
1988, but it made no mention of a 2000 parole violation or
resulting reincarceration. As the government now concedes,
this report contradicts the earlier reports on which the govern-
ment relied in the district court.
B.
We review a district court’s evidentiary rulings for abuse of
discretion and subject such rulings to harmless error review.
UNITED STATES v. JOHNSON 19
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).
Martin raises several potential errors that the district court
made in admitting the 1980 conviction, but we need not
address them. Assuming that the district court erred in admit-
ting the conviction, that error was harmless. "Any error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded." Fed. R. Crim. P. 52(a). Errone-
ously admitted evidence is harmless if a reviewing court is
able to "say, with fair assurance, after pondering all that hap-
pened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error."
Kotteakos v. United States, 328 U.S. 750, 765 (1946); Brooks,
111 F.3d at 371.
Here, we are able to say with fair assurance that the jury’s
verdict was not substantially swayed by the admission of
Martin’s 1980 conviction. First of all, the government pro-
duced substantial evidence of Martin’s guilt, including drugs
and drug paraphernalia seized from his residence and the per-
forming arts school and numerous intercepted phone calls in
which Martin discussed drug distribution. Second, Martin
made several admissions that undermined his credibility.
Among other things, he stated that he used cocaine and heroin
"daily" during 2004, sold marijuana, and lied to an employer
about his drug use and criminal history. Third, the govern-
ment impeached Martin with drug possession convictions
from 1996 and 2002. Those convictions were both more
recent and more closely related to the crimes for which he
was on trial than was the 1980 conviction. Given that the jury
had substantial evidence of Martin’s guilt and several power-
ful reasons to doubt his credibility, we do not think that its
verdict was affected by the prosecutor’s mention of the 1980
conviction. Thus, we conclude that any potential error was
harmless.
VII.
We now turn to Martin’s sentence. At his sentencing hear-
ing on April 6, 2006, the district court attributed more than
20 UNITED STATES v. JOHNSON
1.5 kilograms of crack cocaine to Martin and consequently
assigned him a base offense level of 38, using the drug quan-
tity table then in effect. See U.S. Sentencing Guidelines Man-
ual ("U.S.S.G.") § 2D1.1 (2005 & Supp. 2006). It then
applied a two-level enhancement for obstruction of justice
under U.S.S.G. § 3C1.1, yielding a total offense level of 40.
Because of Martin’s criminal history category of VI, the
resulting guidelines range was 360 months to life imprison-
ment. In the alternative, the district court reasoned that, even
if it had erred in its drug quantity calculations, Martin’s
offense level would nonetheless be bumped up to 37 due to
his career offender status under U.S.S.G. § 4B1.1. Given his
criminal history category of VI, the resulting guidelines range
would be the same as above: 360 months to life.
Martin then requested a downward variance based on his
age, the age of his family members, and what he described as
his relatively minor role in the conspiracy. After hearing argu-
ment from both parties, the district court reviewed the factors
in 18 U.S.C. § 3553(a) and denied Martin’s request. It
imposed a sentence of 375 months’ imprisonment, explaining
that the low end of the advisory range was inappropriate given
Martin’s "significant and long-running involvement with drug
distribution." J.A. 2862.
On appeal, Martin contends that he must be resentenced in
light of Gall v. United States, 128 S. Ct. 586 (2007), which
was decided after his sentencing hearing. According to Mar-
tin, Gall relaxed the appellate standard of review for sen-
tences that are outside of the advisory guidelines ranges. Had
the district court known that a non-guidelines sentence would
be accorded deference under Gall, he argues, it may well have
granted him the variance he requested. This claim is not only
foreclosed by our precedent but also based on unsubstantiated
speculation.
In United States v. Curry, we rejected this very claim, hold-
ing that our review was limited to the reasonableness of "the
UNITED STATES v. JOHNSON 21
actual sentence imposed by the court." 523 F.3d 436, 439 (4th
Cir. 2008). Whether the district court felt "constrained" by
this court’s pre-Gall standard of review for non-guidelines
sentences had "no impact on this court’s inquiry into whether
the actual sentence imposed was reasonable or not." Id. at
441. While that holding controls here, we also note that,
unlike the defendant in Curry, Martin can point to nothing in
the record that suggests that the district court felt constrained
by this court’s pre-Gall cases. Here, the district court did not
even sentence Martin at the low end of the advisory range, so
it is highly unlikely that it would have gone outside that range
had it only known about Gall’s standard of review.
Instead of addressing a "hypothetical sentence[ ] that the
sentencing judge did not give," Curry, 523 F.3d at 439, we
review Martin’s actual sentence for reasonableness. Under
Gall, our review has two steps. First, we must "ensure that the
district court committed no significant procedural error." Gall,
128 S. Ct. at 597. Second, we "consider the substantive rea-
sonableness of the sentence imposed under an abuse-of-
discretion standard[,] . . . tak[ing] into account the totality of
the circumstances, including the extent of any variance from
the Guidelines range." Id.
Martin’s sentence was free of any significant procedural
errors. A district court must properly calculate a defendant’s
advisory guidelines range, and there is no question that the
district court did so here. A district court must also "place on
the record an ‘individual assessment’ based on the particular
facts of the case before it." United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (quoting Gall, 128 S. Ct. at 597).
This explanation "need not be elaborate or lengthy," however.
Carter, 564 F.3d at 330. That is especially true where, as here,
the sentence is inside the advisory guidelines range. Gall was
quite explicit that district courts should provide "more signifi-
cant justification[s]" for major departures than for minor ones.
128 S.Ct. at 597. But when a district court does not depart or
vary at all, it may provide a less extensive, while still individ-
22 UNITED STATES v. JOHNSON
ualized, explanation. See United States v. Boyce, 564 F.3d
911, 917 (8th Cir. 2009) ("Less extensive explanation is nec-
essary when a guideline sentence is imposed."). This is
because guidelines sentences themselves are in many ways
tailored to the individual and reflect "approximately two dec-
ades of close attention to federal sentencing policy." United
States v. Johnson, 445 F.3d 339, 342 (4th Cir. 2006).
Here, the district court provided an individualized explana-
tion for imposing a guidelines sentence, observing that it was
"satisfied" that such a sentence would fulfill the purposes in
§ 3553(a). J.A. 2860. Among other things, the court noted that
despite Martin’s "long, troubled criminal history," he had
"just not gotten it yet." J.A. 2861. Therefore, it concluded, a
guidelines sentence was "necessary" to "afford adequate
deterrence" and "protect the public from further crimes." Id.
While this explanation was not lengthy, it was individualized
and sufficient to justify the sentence imposed. The district
court outlined the defendant’s particular history and charac-
teristics not merely in passing or after the fact, but as part of
its analysis of the statutory factors and in response to defense
counsel’s arguments for a downward departure. Accordingly,
we find no procedural error.
Martin’s sentence was also substantively reasonable. When
reviewing for substantive reasonableness on appeal, we may
presume that sentences that fall within a properly calculated
guidelines range are reasonable. Rita v. United States, 127 S.
Ct. 2456, 2462 (2007). Here, it was clearly reasonable for the
district court to impose a sentence above the low end but still
within the advisory range, given Martin’s "significant and
long-running involvement with drug distribution." J.A. 2862.
Thus, we find that Martin’s sentence was not only procedur-
ally sound but substantively reasonable as well.
VIII.
Lastly, Martin asks us to remand his case for resentencing
in light of Amendment 706 to the Sentencing Guidelines,
UNITED STATES v. JOHNSON 23
which lowered the base offense level for drug offenses
involving crack cocaine. See U.S.S.G. § 2D1.1 (2008);
U.S.S.G. Supp. to App’x C, Amend. 706. Martin was sen-
tenced prior to November 1, 2007, the effective date of the
amendment. But the amendment became retroactive on March
3, 2008 while his appeal was pending. See United States v.
Brewer, 520 F.3d 367, 373 (4th Cir. 2008) (discussing the his-
tory of Amendment 706).
Shortly after the opening briefs in this case were filed, we
addressed this very issue in another case. We held that, under
18 U.S.C. § 3582(c)(2), it is "for the district court to first
assess whether and to what extent [a defendant’s] sentence
may be . . . affected [by Amendment 706], and the [district]
court is entitled to address this issue either sua sponte or in
response to a motion by [the defendant] or the Bureau of Pris-
ons." Brewer, 520 F.3d at 373. Accordingly, we declined to
remand and affirmed without prejudice to the defendant’s
right to seek relief in the district court. Id.
Following Brewer, we do the same here. We are aware that
Martin concedes that applying Amendment 706 will not
change his advisory guidelines range, given that he is a career
offender. But our decision nonetheless does not prejudice his
ability to seek relief under § 3582(c)(2), for it is up to the dis-
trict court to consider his request in the first instance.
IX.
Because the claims raised by the defendants are without
merit, the judgment of the district court is
AFFIRMED.