PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-4117
DARNELL ANTHONY YOUNG, a/k/a
DJ Nelly Nell, a/k/a Nelly,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
No. 08-4118
DARNELL ANTHONY YOUNG, a/k/a
DJ Nelly Nell, a/k/a Nelly,
Defendant-Appellee.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:06-cr-00491-WDQ-1)
Argued: May 11, 2010
Decided: June 28, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and
AGEE, Circuit Judges.
2 UNITED STATES v. YOUNG
Affirmed in part, vacated in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion, in which
Judge Niemeyer and Judge Agee joined.
COUNSEL
ARGUED: William A. Mitchell, Jr., BRENNAN, SULLI-
VAN & MCKENNA, LLP, Greenbelt, Maryland, for
Appellant/Cross-Appellee. Tonya Kelly Kowitz, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee/Cross-Appellant. ON BRIEF: Alexander Zeno,
Washington, D.C., for Appellant/Cross-Appellee. Rod J.
Rosenstein, United States Attorney, Jason M. Weinstein,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for
Appellee/Cross-Appellant.
OPINION
TRAXLER, Chief Judge:
Darnell Young was convicted of drug-related charges and
received a within-Guidelines sentence of 136 months’ impris-
onment. Young appeals his convictions and sentence, and the
government cross-appeals the sentence imposed by the district
court. We reject Young’s challenges, but we agree with the
government that the district court erred when it concluded that
the drug-quantity determinations made by the jury prevented
the court from finding a different quantity at sentencing.
Accordingly, we affirm Young’s convictions, vacate his sen-
tence, and remand for resentencing.
I.
After a lengthy investigation, the government in October
2006 indicted Young on various drug and weapons charges,
UNITED STATES v. YOUNG 3
alleging that Young was part of a conspiracy to distribute
cocaine that operated from 1999 through 2004. On November
1, 2006, the government obtained a warrant authorizing
Young’s arrest. After the warrant was issued, the government
ultimately determined that Young lived in a townhouse in
Owings Mills, Maryland.
On November 6, 2006, federal law enforcement agents
established surveillance of Young’s townhouse to determine
if he was there and could be arrested. The agents watched a
silver SUV park near the townhouse and saw a man later
identified as Errol Wynter approach the house. Wynter
knocked on the door and the door was quickly opened. While
Wynter was inside the townhouse, the agents checked the
license plate number of the SUV and learned that it was titled
to a car dealership associated with someone known to law
enforcement as "Clive," who was believed to be Young’s
cocaine supplier. After about five minutes, Wynter emerged
from the townhouse carrying a red plastic bag. Agents
stopped Wynter shortly after he left the townhouse and found
in the vehicle five cell phones and the red plastic bag, which
contained approximately $40,000 packaged in bundles. The
agents seized the money and allowed Wynter to leave.
Shortly after Wynter was stopped, the agents obtained a
key to Young’s townhouse from the complex’s leasing office
and then proceeded to Young’s townhouse. The agents repeat-
edly knocked loudly on the door and announced themselves
as police. When Young did not answer the door after approxi-
mately twenty seconds, an agent used the key and opened the
door. When the agents entered, they saw Young on the stairs,
which were adjacent to the front door. Young did not comply
when the agents ordered him to lie on the floor, so the agents
forced him to the ground, removed a loaded gun from the
waistband of his pants, and handcuffed him.1
1
Young testified at the suppression hearing that he heard banging at his
door but did not hear the police announce themselves. When he heard the
banging at the door, Young took his gun from a box in his bedroom,
loaded it, and put it in his waistband before going downstairs.
4 UNITED STATES v. YOUNG
The kitchen was just a few feet away from where the offi-
cers entered the house, and an open plastic bag was on the
kitchen island in plain view. The agents could see into the bag
and saw that it contained two brick-shaped items composed of
a white powder that appeared to be cocaine. The agents then
applied for a search warrant, and they waited at the house for
the warrant. After receiving the search warrant, the agents
searched the house and found two kilograms of cocaine in the
plastic bag in the kitchen, approximately three kilograms of
cocaine in the washing machine, $17,000 in cash, and seven
cell phones and chargers. One of those cell phones had been
used only from October 12, 2006, through November 4, 2006
—two days before Young was arrested. That phone had been
used to make and receive calls from only one number, a num-
ber that belonged to one of the cell phones seized from Wyn-
ter.
The day after Young was arrested, the government obtained
a superseding indictment, changing the end-date of the con-
spiracy to on or about November 6, 2006, the date of Young’s
arrest, and adding Wynter as a co-defendant, who by then had
been identified as cocaine supplier "Clive." Although the
indictment alleged a seven-year conspiracy, the government at
trial focused only on the relationship between Young and
Wynter and only presented evidence recovered from Young’s
house on November 6, and from Wynter when he was stopped
on November 6 and when he was arrested two days later.
Wynter eventually pleaded guilty, and Young proceeded to
trial.
At trial, Young sought to suppress the evidence seized from
his house, arguing that the agents did not properly knock and
announce their presence before entering his townhouse to exe-
cute the arrest warrant. The district court denied the motion,
concluding that the officers complied with the knock-and-
announce requirements before entering the house and saw in
plain view the cocaine on the kitchen counter when they
entered.
UNITED STATES v. YOUNG 5
The jury convicted Young of conspiracy to distribute
cocaine, see 21 U.S.C.A. § 846 (West 1999), and distribution
of and possession with intent to distribute cocaine, see 21
U.S.C.A. § 841(a) (West 1999), but acquitted Young of pos-
session of a firearm in furtherance of a drug-trafficking crime,
see 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2010). By way
of a special verdict form, the jury concluded that, as to both
the conspiracy and substantive drug counts, at least 500 grams
but less than five kilograms of cocaine were involved.
The presentence report prepared for Young’s sentencing
concluded that Young was involved in the distribution of at
least 50 but less than 150 kilograms of cocaine. After apply-
ing two offense-level enhancements, the PSR determined that
Young’s total offense level should be 40, which, when com-
bined with Young’s category I criminal history, yielded an
advisory sentencing range of 292-365 months.
At the sentencing hearing, the government sought to pre-
sent evidence to establish that Young was involved in the dis-
tribution of between 90 and 100 kilograms of cocaine. The
district court, however, announced its intention to sentence
Young based on the drug quantity found by the jury, not the
quantity recommended in the PSR. The court stated that
because the jury had concluded beyond a reasonable doubt
that the case involved at least 500 grams but less than five
kilograms of cocaine, the court was not free to increase
Young’s punishment within the statutory maximum by con-
cluding, under a lower standard of proof, that a greater quan-
tity of drugs was involved. To preserve an adequate record for
appeal, the court permitted the government to proffer its drug-
quantity evidence, and the court made a finding that the prof-
fered evidence would have established that Young’s offenses
involved between 90 and 100 kilograms of cocaine.
Based on the jury’s drug-quantity determination, the district
court set Young’s base offense level at 30. The court added
a two-level enhancement for possession of a firearm, but
6 UNITED STATES v. YOUNG
rejected the government’s request for a two-level obstruction
of justice enhancement, for a total base offense level of 32.
With Young’s category I criminal history, the advisory
Guidelines sentencing range was 121-150 months, and the
district court sentenced Young to 136 months. If the district
court had accepted the drug quantity established by the gov-
ernment’s proffer, Young’s offense level would have been 38
and his advisory sentencing range would have been 235-293
months.
II.
We first consider Young’s various challenges to his convic-
tions and sentence.
A.
Young contends that the district court erred in denying his
motion to suppress the evidence seized from his townhouse.
The warrant for Young’s arrest gave police the authority to
enter his house to effect the arrest, provided that they had rea-
son to believe he was present in the house. See Payton v. New
York, 445 U.S. 573, 603 (1980) ("[F]or Fourth Amendment
purposes, an arrest warrant founded on probable cause implic-
itly carries with it the limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the
suspect is within."). Young does not contend that the arrest
warrant was invalid, or that the police lacked reason to
believe he was inside the house. Instead, Young argues that
the evidence should be suppressed because the police when
executing the arrest warrant failed to properly knock and
announce their presence before entering his house.
The Fourth Amendment protects against unreasonable
searches and seizures. See U.S. Const. amend. IV. One ele-
ment of the reasonableness inquiry is the requirement that
police knock, announce their presence, and wait a reasonable
time before entering a house to execute a search or arrest war-
UNITED STATES v. YOUNG 7
rant. See Wilson v. Arkansas, 514 U.S. 927, 929 (1995). This
constitutional requirement is reflected in 18 U.S.C.A. § 3109,
which provides that an officer "may break open any outer or
inner door or window of a house . . . to execute a search war-
rant, if, after notice of his authority and purpose, he is refused
admittance." 18 U.S.C.A. § 3109 (West 2000); see United
States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994).2
Although an officer may not forcibly enter unless he has been
refused admittance, such a refusal need not be expressly made
—"the refusal may be constructive or reasonably inferred
from the circumstances." United States v. Gallegos, 314 F.3d
456, 459 (10th Cir. 2002) (internal quotation marks omitted).
The officers in this case did knock and announce their pres-
ence before entering the townhouse. Young, however, con-
tends that the twenty seconds the officers waited before
entering the townhouse was not long enough for them to infer
that they had been refused admittance. According to Young,
the agents should have waited a minimum of two minutes
before entering his house. We disagree.
"[A] constructive refusal occurs, giving police the right to
enter by force, where the occupants do not admit the officers
within a reasonable period of time." Id. (internal quotation
marks omitted). Because the ultimate question is the reason-
ableness of the officers’ conduct, there can be no bright-line
rule establishing the length of time that police must wait to
enter after announcing their presence. The reasonableness of
the delay varies with each case and depends on the totality of
the circumstances. See United States v. Lipford, 203 F.3d 259,
270 (4th Cir. 2000); United States v. Ward, 171 F.3d 188,
193-94 (4th Cir. 1999).
2
While section 3109 refers only to search warrants, its standards govern
the execution of arrest warrants as well. See Miller v. United States, 357
U.S. 301, 308-09 (1958); United States v. Alejandro, 368 F.3d 130, 133
(2d Cir. 2004).
8 UNITED STATES v. YOUNG
Implicit in the district court’s conclusion that the agents
complied with the knock-and-announce requirements is the
factual determination that the twenty-second wait was reason-
able. We cannot conclude that the district court clearly erred
in that regard. See United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003) ("In considering a district court’s denial
of a motion to suppress evidence, we review the court’s fac-
tual findings for clear error and its legal determinations de
novo."); Ward, 171 F.3d at 194 (reviewing for clear error dis-
trict court’s finding that agents waited a reasonable time after
knocking and announcing before entering); United States v.
Banks, 10 F.3d 1044, 1057 (4th Cir. 1993) (reviewing explicit
and implicit factual findings for clear error). Young himself
testified at the suppression hearing that the townhouse was
relatively small, and the agents had just observed Young
promptly answer the door when Wynter knocked. Under these
circumstances, we believe the agents could reasonably infer
after twenty seconds that they had been effectively refused
admittance to the townhouse. See, e.g., United States v. Mor-
ris, 436 F.3d 1045, 1049 (8th Cir. 2006) ("[E]ntry into the res-
idence of a drug trafficking suspect, ten seconds after
knocking and announcing at a reasonable evening hour, was
constitutionally reasonable."); United States v. Pennington,
328 F.3d 215, 221 (6th Cir. 2003) (finding no knock-and-
announce violation where officers forcibly entered defen-
dant’s residence eight to ten seconds after announcing their
presence); United States v. Spriggs, 996 F.2d 320, 323 (D.C.
Cir. 1993) (finding fifteen-second wait sufficient to satisfy the
requirements of the knock-and-announce rule). The district
court therefore did not err in concluding that the agents com-
plied with their knock-and-announce obligations.3
3
In Hudson v. Michigan, 547 U.S. 586, 594 (2006), the Supreme Court
held that suppression is not an appropriate remedy for knock-and-
announce violations occurring in the execution of search warrants. The
government contends that Hudson applies to knock-and-announce viola-
tions arising from the execution of arrest warrants, see United States v.
Pelletier, 469 F.3d 194, 201 (1st Cir. 2006) (concluding that Hudson
applies in the context of an arrest warrant), while Young argues that there
UNITED STATES v. YOUNG 9
Young also contends that the evidence should have been
suppressed because the police used the arrest warrant as a pre-
text to search his house. According to Young, the police had
ample opportunity to arrest him outside his house in the days
before they executed the arrest warrant, and on the day of the
arrest they could have simply waited for him to come outside.
Young thus argues that the police used the arrest warrant as
a pretext to get inside the house where they could search for
drugs, and he contends that the evidence found in his house
should therefore be suppressed.
This argument is without merit. Whether or not the agents
executing the warrant hoped there might be evidence in plain
view once they entered the house, their subjective motivations
are irrelevant to our Fourth Amendment analysis. See Brig-
ham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) ("An
action is reasonable under the Fourth Amendment, regardless
of the individual officer’s state of mind, as long as the circum-
stances, viewed objectively, justify the action. The officer’s
subjective motivation is irrelevant." (citation, internal quota-
tion marks and alteration omitted)). The arrest warrant gave
the agents the right to enter Young’s house, and the agents
properly executed that warrant and saw drugs in plain view
when they entered. Those drugs provided probable cause for
the agents to obtain a search warrant, and execution of that
warrant led to the discovery of other evidence. Because
Young does not challenge the validity of the arrest warrant or
the subsequently issued search warrant, there is no basis to
suppress the evidence found in his house.
B.
Young also challenges the sufficiency of the evidence sup-
porting his conspiracy conviction. According to Young, the
are different considerations present in arrest-warrant cases that counsel
against an extension of Hudson. Given our conclusion that the agents com-
plied with the knock-and-announce requirements, we need not consider
whether Hudson applies in cases involving the execution of arrest war-
rants.
10 UNITED STATES v. YOUNG
government’s evidence at most showed the existence of a
buyer-seller relationship between Young and Wynter, which
Young contends is insufficient to show the existence of a con-
spiracy. See, e.g., United States v. Mills, 995 F.2d 480, 485
(4th Cir. 1993) (noting that evidence showing a buyer-seller
relationship is not alone enough to establish a drug-
distribution conspiracy).
"A defendant challenging the sufficiency of the evidence
faces a heavy burden," United States v. Foster, 507 F.3d 233,
245 (4th Cir. 2007), because the jury’s verdict "must be
upheld on appeal if there is substantial evidence in the record
to support it," id. at 244 (emphasis added). "[S]ubstantial evi-
dence is evidence that a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt." United States v. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). Our review
is thus limited to determining whether, "viewing the evidence
and the reasonable inferences to be drawn therefrom in the
light most favorable to the [g]overnment, . . . the evidence
adduced at trial could support any rational determination of
guilty beyond a reasonable doubt." Id. at 863.
The evidence presented at trial established that Young was
in possession of almost five kilograms of cocaine, a quantity
that clearly was large enough to permit the jury to conclude
that the drugs were intended for distribution. See United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992) ("Intent
to distribute may be inferred from the quantity of drugs pos-
sessed."). Young and Wynter were each in possession of a
large amount of cash, which could be rationally viewed by the
jury as evidence of their involvement in a drug-distribution
scheme. See United States v. Fisher, 912 F.2d 728, 731 (4th
Cir. 1990) ("The large amount of cash found in Fisher’s pos-
session . . . is additional circumstantial evidence of his
involvement in narcotics distribution."). The evidence that
Young was in possession of multiple cell phones, including
one that was used only to call and receive calls from one of
UNITED STATES v. YOUNG 11
Wynter’s many cell phones, could likewise be viewed by the
jury as evidence of a drug-distribution conspiracy involving
Young and Wynter, particularly since a government expert
testified at trial that drug dealers frequently use different cell
phones to make and receive calls from their supplier, their
customers, and their families. The government’s evidence
thus established much more than a mere buyer-seller relation-
ship between Young and Wynter, and the evidence was more
than sufficient to support Young’s conviction for conspiring
to distribute cocaine. See United States v. Reid, 523 F.3d 310,
317 (4th Cir. 2008) ("[E]vidence of continuing relationships
and repeated transactions can support the finding that there
was a conspiracy, especially when coupled with substantial
quantities of drugs."); United States v. Yearwood, 518 F.3d
220, 226 (4th Cir.) ("[E]vidence of [a buyer-seller] relation-
ship, when combined with evidence of a substantial quantity
of drugs . . . would support a reasonable inference that the
parties were coconspirators." (internal quotation marks omit-
ted)), cert. denied, 129 S. Ct. 137 (2008).
C.
Finally, Young raises various challenges to his sentence. As
to two of his claims (his claim that a district court does not
have the authority to increase a sentence beyond the statutory
minimum by making its own findings of fact and his claim
that a district court should not be able to enhance a sentence
based on acquitted conduct), Young acknowledges that the
claims are foreclosed by circuit precedent. He makes no sub-
stantive arguments on those claims but merely seeks to pre-
serve the issues for possible en banc review, and we need not
address those claims.
The one argument that Young does substantively address,
however, is also foreclosed by precedent. According to
Young, requiring sentencing courts to consider the factors set
out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010)
creates a mandatory sentencing scheme that is functionally
12 UNITED STATES v. YOUNG
identical to the mandatory Guidelines system that the
Supreme Court in Booker concluded violated the Sixth
Amendment. Young therefore argues that the post-Booker
sentencing procedure likewise violates the Sixth Amendment.
Consideration of the § 3553(a) factors is mandated by
Supreme Court precedent, see, e.g., Gall v. United States, 552
U.S. 38, 49-50 (2007), and we are not at liberty to disregard
Supreme Court precedent. Young must therefore direct his
argument to the Supreme Court, not this court.
III.
We now turn to the government’s cross-appeal challenging
the sentence imposed by the district court. The government
argues that the district court erred by concluding that the
jury’s drug-quantity finding prevented the court from deter-
mining that the drug quantity for sentencing purposes was
higher than the amount found by the jury. The government
contends that the jury’s finding established the maximum sen-
tence Young was eligible to receive under the statute but did
not otherwise affect the district court’s authority to find facts
as necessary to fix the sentence within that statutory maxi-
mum. We agree.
Under section 841, the minimum and maximum sentences
available for drug offenses increase as the quantity of drugs
increases. See 21 U.S.C.A. § 841(b)(1)(A)(ii) (setting mini-
mum sentence of 10 years and maximum sentence of life
imprisonment for cases involving five kilograms or more of
cocaine); id. § 841(b)(1)(B)(ii) (setting minimum sentence of
five years and maximum sentence of 40 years for cases
involving 500 grams or more of cocaine); id. § 841(b)(1)(C)
(setting no minimum sentence and maximum sentence of 20
years for cases involving unspecified quantities of a schedule
II controlled substance). The drug-quantity thresholds set
forth in § 841 are elements of the "aggravated drug trafficking
offense[s]." United States v. Promise, 255 F.3d 150, 156 (4th
Cir. 2001) (en banc). Thus, unless the drug-quantity threshold
UNITED STATES v. YOUNG 13
is alleged in the indictment and found by the jury, the convic-
tion is not for an aggravated drug-trafficking offense and the
defendant may not be sentenced to more than the 20 years
authorized by § 841(b)(1)(C). See id. at 156-57 ("[I]n order to
authorize the imposition of a sentence exceeding the maxi-
mum allowable without a jury finding of a specific threshold
drug quantity, the specific threshold quantity must be treated
as an element of an aggravated drug trafficking offense, i.e.,
charged in the indictment and proved to the jury beyond a rea-
sonable doubt." (footnote omitted)); United States v. Webb,
545 F.3d 673, 677 (8th Cir. 2008) ("[I]f the government
wishes to seek a sentence that exceeds the statutory sentenc-
ing range for an indeterminate amount of drugs, then it must
charge the facts giving rise to the increased sentence in the
indictment and must prove those facts to the jury beyond a
reasonable doubt." (internal quotation marks and alteration
omitted)), cert. denied, 129 S. Ct. 2021 (2009).
The indictment in this case alleged that Young’s crimes
involved more than five kilograms of cocaine. The jury, how-
ever, found Young guilty of lesser-included offenses involv-
ing less than five kilograms of cocaine but more than 500
grams. The jury’s drug-quantity finding therefore established
40 years as the maximum sentence that could be imposed on
Young. But beyond establishing the maximum sentence, the
jury’s drug-quantity determination placed no constraint on the
district court’s authority to find facts relevant to sentencing.
In order to select a sentence within a jury-verdict-
authorized maximum sentence, the district court must make
relevant factual findings based on the court’s view of the pre-
ponderance of the evidence. When making those factual find-
ings, the district court may consider acquitted conduct, so
long as the court determines that the conduct was established
by a preponderance of the evidence. This judicial fact-finding
was a critical part of the sentencing process before Booker,
and it remains a critical part of the process after Booker. See
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
14 UNITED STATES v. YOUNG
(explaining that post-Booker, "[s]entencing judges may find
facts relevant to determining a Guidelines range by a prepon-
derance of the evidence, so long as that Guidelines sentence
is treated as advisory and falls within the statutory maximum
authorized by the jury’s verdict"), cert. denied, 129 S. Ct. 950
(2009); United States v. Perry, 560 F.3d 246, 258-59 (4th
Cir.) ("It has long been established that sentencing courts may
consider acquitted conduct in establishing drug amounts for
the purpose of sentencing, so long as the amounts are estab-
lished by a preponderance of the evidence. And, we reject
Perry’s assertion that this point is no longer valid in light of
United States v. Booker, 543 U.S. 220 (2005)." (citations
omitted)), cert. denied, 130 S. Ct. 177 (2009); see also Rita
v. United States, 551 U.S. 338, 352 (2007) (noting that "many
individual Guidelines apply higher sentences in the presence
of special facts, . . . [and that] [i]n many cases, the sentencing
judge, not the jury, will determine the existence of those
facts").
By determining that the evidence presented at trial estab-
lished that Young’s crimes involved between 500 grams but
less than five kilograms of cocaine, the jury in this case effec-
tively acquitted Young of involvement with the distribution of
more than five kilograms. The district court was free to con-
sider, as it would with any other acquitted conduct, whether
the government could establish a higher quantity under a pre-
ponderance of the evidence standard. See Webb, 545 F.3d at
677 ("[A] district court may impose a sentence based on a
drug quantity determination greater than that found by the
jury so long as the sentence does not exceed the statutory
maximum of the convicted offense and the district court’s cal-
culation is supported by sufficient evidence."); United States
v. Florez, 447 F.3d 145, 156 (2d Cir. 2006) (rejecting defen-
dant’s claim that the district court erred by attributing 10-30
kilos of heroin to the defendant for sentencing purposes when
the jury found the defendant was only involved with 3-10
kilos of heroin, noting that "judicial authority to find facts rel-
evant to sentencing by a preponderance of the evidence sur-
UNITED STATES v. YOUNG 15
vives Booker" (internal quotation marks and alteration
omitted)).
To the extent that Young suggests the government was
estopped from establishing a higher drug quantity at sentenc-
ing because it elected not to present that evidence at trial, the
argument is without merit. The government at sentencing
properly sought to establish as relevant conduct the total
quantity of drugs attributable to Young. "Relevant conduct"
under the Guidelines, of course, often includes a broader
range of conduct than the conduct underlying the offense of
conviction. See, e.g., United States v. Newsome, 322 F.3d 328,
339 (4th Cir. 2003). This is particularly so in drug cases,
where relevant conduct is defined to include "all acts and
omissions . . . that were part of the same course of conduct
or common scheme or plan as the offense of conviction."
U.S.S.G. § 1B1.3(a)(2).
The government’s decision to limit the evidence it pre-
sented at trial necessarily affected the jury’s drug-quantity
determination, but that trial decision did not tie the hands of
the government, or the district court, at sentencing. There is
no requirement that the government present its relevant con-
duct evidence at trial, nor is the district court at sentencing
bound by the evidence presented at trial when determining
drug quantity or other relevant conduct. See United States v.
Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) ("Determining drug
quantity is a task for the sentencing court, and in performing
that task it is not bound by jury findings or evidence presented
at trial, but may consider any reliable proof." (citation omit-
ted)); cf. United States v. Butner, 277 F.3d 481, 487 (4th Cir.
2002) ("In determining the loss amount, a sentencing court
may consider relevant conduct that has not been charged and
proven at trial, if it is shown by a preponderance of the evi-
dence at sentencing."). The government therefore was entitled
to establish Young’s relevant conduct through evidence that
had not been presented at trial, and the district court was obli-
gated to consider that evidence (so long as the evidence was
16 UNITED STATES v. YOUNG
reliable) for purposes of calculating Young’s advisory sen-
tencing range. See U.S.S.G. § 1B1.3(a) (stating that a defen-
dant’s offense level "shall be determined on the basis of" the
offense of conviction and relevant conduct (emphasis added));
United States v. Hayes, 322 F.3d 792, 802 (4th Cir. 2003)
(noting that "a court has no discretion to disregard relevant
conduct" when calculating offense level); see also United
States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) ("[A]
sentencing court may give weight to any relevant information
before it, including uncorroborated hearsay, provided that the
information has sufficient indicia of reliability to support its
accuracy.").
Because the jury’s drug-quantity finding established the
maximum sentence that could be imposed but did not other-
wise constrain the district court’s authority to make factual
findings as necessary to select the appropriate sentence from
within the range authorized by the jury’s verdict, the district
court erred by concluding that it was bound by the jury’s
drug-quantity finding. Young does not contend that any error
in this regard is harmless, nor would the record permit such
a conclusion. See, e.g., United States v. Lynn, 592 F.3d 572,
576 (4th Cir. 2010) (recognizing that procedural sentencing
errors are subject to review for harmlessness). As previously
discussed, the district court permitted the government to prof-
fer its evidence showing the higher drug quantity. The court
stated that the proffered evidence would have established
Young’s involvement with between 90 and 100 kilograms of
cocaine and that the court "would have accepted that testi-
mony." J.A. 671. If the district court had recognized its
authority to consider the drug quantity established by the gov-
ernment’s proffer, Young’s advisory sentencing range would
have been 235-293 months—almost double the 121-150
month sentencing range used by the district court. The district
court imposed a sentence within the lower range, without giv-
ing any indication that it would have imposed the same sen-
tence even if it were not bound by the jury’s drug-quantity
determination or that a sentence within the higher Guidelines
UNITED STATES v. YOUNG 17
range would have been too high. Under these circumstances,
we cannot conclude that the district court’s error in applying
the Guidelines did not affect the court’s selection of the sen-
tence imposed, and we therefore cannot conclude that the
error was harmless. See United States v. Harris, 597 F.3d 242,
261 (5th Cir. 2010) ("A procedural error made during sen-
tencing is harmless if the error did not affect the district
court’s selection of the sentence imposed."). We must there-
fore vacate Young’s sentence and remand for re-sentencing.
IV.
To summarize, we find no error in the district court’s deter-
mination that the agents when executing the arrest warrant
complied with the knock-and-announce requirements of the
Fourth Amendment, and we reject Young’s claims that the
evidence seized from his townhouse should have been sup-
pressed. We conclude that the government presented suffi-
cient evidence to sustain Young’s conspiracy conviction, and
we reject Young’s various challenges to his sentence. On the
government’s cross-appeal, however, we conclude that the
district court erred by viewing the jury’s drug-quantity deter-
mination as precluding the court from finding a higher quan-
tity for sentencing purposes. Because the district court’s error
was not harmless, we hereby vacate Young’s sentence and
remand for re-sentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED