United States v. Scheetz , 293 F.3d 175 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4177
TIMOTHY SEAN SCHEETZ, a/k/a Germ,
a/k/a G,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4183
THOMAS WALKER LABUWI, II,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
CLIFTON SCOTT BROOKS, JR., a/k/a  No. 01-4243
Blue Eyes, a/k/a Benjamin Michael
Mendoza, a/k/a Benjamin A.
Martin,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-78-F)
2 UNITED STATES v. SCHEETZ
Argued: April 4, 2002
Decided: June 6, 2002
Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
W. Craig BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Niemeyer and Judge Broadwater joined.
COUNSEL
ARGUED: Joseph Bart Gilbert, MCNEIL & GILBERT, Jackson-
ville, North Carolina, for Appellant Scheetz; Joseph Blount Cheshire,
V, CHESHIRE & PARKER, Raleigh, North Carolina, for Appellant
Labuwi; Joseph Edward Zestotarski, Jr., POYNER & SPRUILL,
L.L.P., Raleigh, North Carolina, for Appellant Brooks. Christine Wit-
cover Dean, Assistant United States Attorney, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: John Stuart Bruce, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
In this consolidated criminal appeal, Timothy Scheetz (Scheetz),
Thomas Labuwi (Labuwi), and Clifton Scott Brooks (Scott Brooks)
appeal from the district court’s judgment entered in their respective
cases. We affirm.
UNITED STATES v. SCHEETZ 3
I
A
In late 1993, Benjamin Brooks moved from Florida to a house in
Fayetteville, North Carolina that his cousin, Scheetz, was sharing with
Mary Olivas (Olivas) and Donald Hayes (Hayes). Shortly after he
moved in, Benjamin Brooks began to assist Scheetz with his drug dis-
tribution operation by distributing marijuana and collecting money. In
general, Scheetz’s drug distribution operation purchased and sold
drugs on the front.1
In January or February 1994, Scheetz and Olivas moved to South-
ern Pines, North Carolina, which allowed Benjamin Brooks, who
remained at the Fayetteville house with Hayes, to become more active
in Scheetz’s Fayetteville operations. In addition to his responsibilities
of delivering marijuana and collecting money, Benjamin Brooks
began to receive marijuana shipments and prepare the marijuana for
distribution. The marijuana shipments, weighing twenty to thirty
pounds each, came from Scheetz’s source in California and were
delivered by way of Federal Express.
In April 1994, the house in Fayetteville was searched by law
enforcement officers who found marijuana and methylenedioxy-
methamphetamine (Ecstasy). Following the search, Hayes and Benja-
min Brooks were arrested and charged with violations of North
Carolina state drug laws. In November 1994, Hayes and Benjamin
Brooks left for Pennsylvania to avoid being convicted of the pending
North Carolina state drug law charges.
In the spring of 1996, Todd Davis (Davis) met Labuwi at Sandhills
Community College, which they were both attending. Labuwi distrib-
uted marijuana for the Scheetz drug distribution operation and also
helped in breaking down marijuana shipments. In 1997, Labuwi intro-
duced Davis to Scheetz, and, in the spring of 1997, Davis began buy-
ing marijuana from Labuwi. Around this same time frame, Davis,
along with Labuwi, went to Scheetz’s house to help breakdown mari-
1
"Fronting" is the practice of supplying narcotics on credit.
4 UNITED STATES v. SCHEETZ
juana shipments, which were now arriving from Scheetz’s California
source in crates delivered by various freight companies and were
averaging 200 pounds.
Davis also performed several other tasks for Scheetz’s drug distri-
bution operation. He went to Pennsylvania to collect money from
Benjamin Brooks and Hayes, made a trip to California to pay
Scheetz’s California source, and delivered money on several occa-
sions to a courier for the California source at various locations in
Raleigh and Charlotte, North Carolina.
In July 1997, Benjamin Brooks and Hayes were arrested in Penn-
sylvania. After Benjamin Brooks was placed on bond, Scheetz and
Davis went to Pennsylvania and brought Benjamin Brooks back to
Southern Pines, North Carolina. A short time later, Benjamin Brooks
moved to Wilmington, North Carolina and, once again, began selling
marijuana for the Scheetz drug distribution operation.
In August 1997, Benjamin Brooks and Davis began selling mari-
juana to Scott Brooks. Thereafter, Scott Brooks became more
involved in the Scheetz drug distribution operation. Scott Brooks
went to Raleigh, North Carolina to obtain marijuana from Scheetz and
also assisted Scheetz and others in breaking down the marijuana ship-
ments which, at that time, were ranging between 150 and 300 pounds.
In February 1998, the apartment Benjamin Brooks and Davis
shared in Wilmington was searched by law enforcement officers and
Davis was arrested and charged with North Carolina state drug law
violations. In July 1998, Scott Brooks was arrested and charged with
violating North Carolina state drug law after his car was stopped for
a traffic infraction by law enforcement officers in Wrightsville Beach,
North Carolina. During a subsequent search of the car and Scott
Brooks’s person, the law enforcement officers recovered marijuana
and a large amount of money.
In 1999, Labuwi began to distribute Ecstasy for Scheetz. Accord-
ing to Davis, the Scheetz drug distribution operation received at least
four shipments of Ecstasy from a source in Florida.
UNITED STATES v. SCHEETZ 5
After Davis had served his sentence on the North Carolina state
drug law charges stemming from his arrest in February 1998, he
resumed working for Scheetz. After resuming his association with
Scheetz, Davis began distributing marijuana with Jeff Baker (Baker)
and one of their customers was Michael Hagins. Michael Hagins
became indebted to them for marijuana, and when he was unable to
pay them, Davis and Baker paid Scheetz the money due. After Davis
and Baker stopped supplying Michael Hagins with marijuana, they
began selling marijuana to Michael Hagins’ brother, Ed Hagins, who
also got behind in his payments for the marijuana.
In February 2000, Davis was again arrested on North Carolina state
drug law charges after a shipment of Ecstasy was seized. Scheetz was
paying for the Ecstasy with money that was owed to his California
marijuana source. After the shipment of Ecstasy was seized, Scheetz
needed money to pay his California marijuana source.
In an effort to raise money to pay the California marijuana source,
Scheetz called Michael Hagins, threatened to kill him and his family
if his debt to Davis and Baker was not paid, and told Michael Hagins
that he was responsible for Ed Hagins’ debt because, while Scheetz
knew Michael Hagins, he did not know Ed Hagins.
Meanwhile, Scheetz was trying to collect all monies owed to his
organization in order to recoup the loss from the Ecstasy seizure
because his California marijuana source was pressuring him for pay-
ment. Matthew Lamb (Lamb), another distributor for Scheetz, had a
customer, Shane Hunsucker (Hunsucker), and Scheetz thought Hun-
sucker owed Lamb money. Consequently, on April 9, 2000, Scheetz,
Scott Brooks, and Lamb went to Hunsucker’s residence to collect the
money. Scott Brooks held a gun to Patrick Lovette (Lovette), Hun-
sucker’s roommate, while Scheetz did the same to Hunsucker.
Scheetz gave his gun to Scott Brooks and told him to keep the weap-
ons on both Lovette and Hunsucker. Scheetz then stuck a pair of clip-
pers up Hunsucker’s nose and threatened him. The next day, Lamb
and Labuwi went to Hunsucker’s house and Hunsucker paid them
some money.
Thereafter, on the evening of April 10, 2000, Scheetz, Labuwi,
Scott Brooks, and Lamb went to Pembroke, North Carolina intending
6 UNITED STATES v. SCHEETZ
to go to Michael Hagins’ residence to collect the money he owed to
Davis and Baker. On the way, they stopped at a Wal-Mart where they
purchased black clothing for Labuwi. When they got near Michael
Hagins’ residence, Scheetz, Labuwi, and Scott Brooks changed into
black clothing and put dark paint on their faces. Scheetz handed out
guns to Labuwi and Scott Brooks. Lamb stayed in the car, while
Scheetz, Labuwi, and Scott Brooks went to what they thought was
Michael Hagins’ residence, but turned out to be the residence occu-
pied by Marcus Locklear (Locklear) and Jennifer Lester (Lester). The
trio kicked in the door, told Locklear to get down, and Labuwi shot
Locklear, killing him. Lester saw two of the people; the one whose
voice she recognized as Scheetz’s was standing across from her, and
the other passed in front of her doorway holding a weapon. She heard
a third person speaking from the door area. When they realized she
was there, they left the residence, Scheetz leaving last and saying they
would return. As they exited the residence, Michael Hagins’ room-
mate, Ronald Floyd (Floyd), drove up. Floyd was driving his Chevro-
let Camero which Michael Hagins had borrowed when he had gone
to pick up marijuana from Scheetz. As the trio went by, they shot at
Floyd, striking him in both legs. After they returned to the car,
Labuwi said that he had shot Locklear, and Scott Brooks said that he
had shot at the car driven by Floyd to keep Floyd from following
them.
B
On October 18, 2000, by way of a superseding indictment returned
by a federal grand jury sitting in the Eastern District of North Caro-
lina, Scheetz, Labuwi, and Scott Brooks were charged in count one
with conspiracy to distribute and to possess with the intent to distrib-
ute in excess of twenty kilograms of Ecstasy and in excess of 1,000
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
846, and in count three with using or carrying firearms during and in
relation to the count one conspiracy (with said firearms being dis-
charged) in violation of 18 U.S.C. § 924(c). In count two, Scheetz
was charged with conspiracy to commit money laundering in viola-
tion of 18 U.S.C. §§ 1956(a)(1)(A), (a)(1)(B), and (h).
Scheetz, Labuwi, and Scott Brooks each pled not guilty, and, prior
to the beginning of the trial, Scott Brooks unsuccessfully moved to
UNITED STATES v. SCHEETZ 7
suppress the marijuana and the money that was discovered after his
car was searched by law enforcement officers in July 1998. The jury
trial began on October 31, 2000, and, on November 8, 2000, Labuwi
changed his pleas to guilty and entered pleas of guilty to counts one
and three. The trial continued as to Scheetz and Scott Brooks. On
November 13, 2000, the jury returned its special verdict in the case.
The jury found Scheetz guilty of counts one and two as charged, and
guilty of count three, but the jury found that the government had
failed to prove that Scheetz had discharged a firearm. The jury found
Scott Brooks guilty under count one of the lesser-included offense of
conspiracy to distribute and to possess with the intent to distribute
less than fifty kilograms of marijuana. The jury also found Scott
Brooks guilty of count three, but, like Scheetz, found that the govern-
ment failed to prove that Scott Brooks had discharged a firearm.
The district court sentenced Scheetz to life imprisonment on count
one, 240 concurrent months’ imprisonment on count two, sixty con-
secutive months’ imprisonment on count three, restitution of
$26,374.22, and a $300 special assessment. Labuwi was sentenced to
life imprisonment on count one, 120 consecutive months’ imprison-
ment on count three, restitution of $26,374.22, and a $200 special
assessment. Scott Brooks was sentenced to 60 months’ imprisonment
on count one and, following an upward departure, the district court
sentenced Scott Brooks to 262 consecutive months’ imprisonment on
count three, for a total sentence of 322 months’ imprisonment. Scott
Brooks was also sentenced to restitution of $26,374.22 and a $200
special assessment. Scheetz, Labuwi, and Scott Brooks each noted a
timely appeal.
II
Scott Brooks contends the district court erred in denying his motion
to suppress. We review factual determinations made by the district
court at a suppression hearing for clear error, and the district court’s
legal conclusions are reviewed by this court de novo. United States
v. Han, 74 F.3d 537, 540 (4th Cir. 1996).
The facts concerning the stop of Scott Brooks’s car in July 1998
are as follows. On July 10, 1998, the New Hanover County Sheriff’s
Department conducted a checkpoint in Wrightsville Beach, North
8 UNITED STATES v. SCHEETZ
Carolina. The law enforcement officers erected two signs on Salis-
bury Street visible to eastbound motorists approaching the check-
point. Both signs read "K-9 CHECK POINT AHEAD" and were
placed approximately 100 feet apart. (J.A. 95). The checkpoint itself
—where law enforcement officers actually were stopping motorists—
was visible from the location of the first sign.
The operational plan to be implemented by the checkpoint was
two-fold. Law enforcement officers stationed at the checkpoint itself
were to request and examine motorists’ driver’s licenses and vehicle
registration cards and be alert for impaired drivers. In addition, nar-
cotics officers observing from unmarked vehicles nearby were to
watch for motorists who threw items out of their vehicles or who
made u-turns or other evasive actions upon seeing the "K-9 CHECK
POINT AHEAD" signs. The narcotics officers planned to investigate
any vehicle involved in such conduct.
The narcotics officers were seated in unmarked police vehicles on
Pelican Drive just beyond the first checkpoint sign and about 100 feet
from the checkpoint itself. Pelican Drive runs parallel to Salisbury
Street and the two streets are separated by a grass median. Crossing
the median is not permitted, as indicated by double yellow lines on
Salisbury Street.
Although the two signs alerted motorists that there was a "K-9
CHECK POINT AHEAD," in fact, there was no K-9 officer at the
checkpoint. A K-9 officer was present and available to assist, how-
ever, in a vehicle parked near the narcotics officers who were observ-
ing the activities from Pelican Drive.
The narcotics officers stationed on Pelican Drive observed a bur-
gundy Pontiac Grand Am approach the checkpoint signs and then
execute an illegal u-turn across the grass median after passing the first
checkpoint sign but before reaching the checkpoint itself. Upon
observing that conduct, the narcotics officers pursued the Grand Am
and executed a stop.
Three narcotics officers approached the stopped car. Narcotics offi-
cers Almeida and Kennedy approached the driver’s side and
requested a driver’s license and vehicle registration card from the
UNITED STATES v. SCHEETZ 9
driver, Scott Brooks. Narcotics officer Blackmon approached the pas-
senger’s side and immediately signaled to narcotics officers Almeida
and Kennedy that he smelled the odor of marijuana emanating from
the interior of the car. Narcotics officers Almeida and Kennedy
smelled the same strong odor at the same time.
Upon smelling the odor of marijuana, the narcotics officers
directed Scott Brooks to step out and stand at the rear of the car. The
narcotics officers sought Scott Brooks’s consent to search the car but
Scott Brooks declined to give his consent. Based on the strong odor
of marijuana emanating from the car, the narcotics officers conducted
a search of the car, and, during the search, narcotics officer Kennedy
discovered marijuana in a knapsack inside the car. Upon the discov-
ery of the marijuana, the narcotics officers arrested Scott Brooks and
conducted a search of his person during which they recovered and
seized $2,725.
According to Scott Brooks, the district court erred in allowing into
evidence the evidence seized following the stop of his car because the
stop of his car was part of a checkpoint whose primary purpose was
drug interdiction, and, therefore, the checkpoint was unconstitutional.
City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (holding that
a checkpoint whose primary purpose is drug interdiction is unconsti-
tutional). In making this argument, Scott Brooks posits that the gov-
ernment should not be permitted to use his illegal actions in seeking
to avoid the illegal checkpoint as a basis to justify the stop.
We find nothing improper with respect to the stop and subsequent
search of Scott Brooks’s car and person. Because of his vehicular
flight prior to arriving at the checkpoint, Scott Brooks was not seized
for Fourth Amendment purposes by the show of police authority by
virtue of the checkpoint signs or the checkpoint itself. California v.
Hodari D., 499 U.S. 621, 626-29 (1991) (no seizure for Fourth
Amendment purposes when a defendant did not acquiesce in the show
of police authority); id. at 629 ("Assuming that [the officer’s] pursuit
. . . constituted a ‘show of authority’ in enjoining Hodari to halt, since
Hodari did not comply with that injunction he was not seized until he
was tackled."); Brower v. County of Inyo, 489 U.S. 593, 599 (1989)
(holding that for purposes of determining whether the roadblock
worked a Fourth Amendment seizure, the controlling considerations
10 UNITED STATES v. SCHEETZ
are whether: (1) the motorist "was meant to be stopped by the physi-
cal obstacle of the roadblock"; and (2) the motorist "was so stopped");
Latta v. Keryte, 118 F.3d 693, 700 (10th Cir. 1997) (holding that a
fleeing motorist was not seized for Fourth Amendment purposes until
the law enforcement officers were successful in stopping the motorist
at a roadblock); Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir.
1994) (holding that, unless the law enforcement officer’s show of
authority succeeds in restraining a person, the person has not been
seized within the meaning of the Fourth Amendment). Consequently,
Scott Brooks’s commission of a traffic infraction provided a basis for
the stop of his car. Whren v. United States, 517 U.S. 806, 810 (1996)
("As a general matter, the decision to stop an automobile is reason-
able where the police have probable cause to believe that a traffic vio-
lation has occurred."). Once the car was properly stopped and the
narcotics officers smelled marijuana, the narcotics officers properly
conducted a search of the car. United States v. Morin, 949 F.2d 297,
300 (10th Cir. 1991) (holding that, because marijuana has a distinct
smell, "the odor of marijuana alone can satisfy the probable cause
requirement to search a vehicle or baggage"). Finally, the money
found on Scott Brooks’s person was properly admitted as evidence
seized pursuant to a lawful arrest. Chimel v. California, 395 U.S. 752,
762-63 (1969) (holding that a search incident to a lawful arrest does
not violate the Fourth Amendment); United States v. Nelson, 102 F.3d
1344, 1346 (4th Cir. 1996) (same). Accordingly, the district court did
not err when it denied Scott Brooks’s motion to suppress.
III
Scheetz contends that the district erred when it prevented him from
asking cooperating government witnesses about the Sentencing
Guidelines ranges they were facing. A district court’s restrictions on
cross-examination are reviewed for an abuse of discretion. United
States v. Ambers, 85 F.3d 173, 175 (4th Cir. 1996).
During Scheetz’s counsel’s cross-examination of the government’s
first witness, Mitchell Skowron (Skowron), a marijuana customer of
Scheetz, Scheetz’s counsel asked Skowron about a statutory sentenc-
ing enhancement and whether only the government can decide to
make a substantial assistance motion. After Scheetz’s counsel started
this line of questioning, the district court gave the jury an instruction
UNITED STATES v. SCHEETZ 11
on how the federal sentencing process operates, including a detailed
explanation of the Sentencing Guidelines and the concept of substan-
tial assistance. At the conclusion of the district court’s instruction, the
district court asked Scheetz’s counsel if he wanted a "further instruc-
tion on that issue," (J.A. 163), to which counsel for Scheetz responded
in the negative. Later on in the trial, when counsel for Scheetz
attempted to ask Davis a question concerning his "guideline range,"
(J.A. 527), the district court sustained the government’s objection.
Counsel for Scheetz attempted to ask a similar question during his
cross-examination of Baker, but the district court again sustained the
government’s objection. During his cross-examination of Davis and
Baker, counsel for Scheetz asked each of these witnesses about their
plea agreements and the maximum and minimum sentences they were
facing, and each of these witnesses indicated that they hoped to get
a reduction in their sentence for cooperating with the government. In
addition to Davis and Baker, counsel for Scheetz elicited similar
responses from the government’s other cooperating witnesses.
We conclude the district court did not err in refusing to allow
Scheetz’s counsel to ask questions concerning Sentencing Guidelines
ranges. In Ambers, we upheld restricting cross-examination to the
minimum and maximum penalties the cooperating government wit-
ness was facing, whether the cooperating government witness was
testifying to gain a reduced sentence, and the terms of his plea agree-
ment concerning a downward departure. 85 F.3d at 176-77. We found
that this line of questioning was sufficient to explore the motivation
of the cooperating government witness in testifying. Id. In reaching
this conclusion, we rejected the notion that the defendant was entitled
to question a cooperating government witness concerning how his
potential sentence reduction fit into the structure of the Sentencing
Guidelines, reasoning that such questioning "might do much to con-
fuse lay jurors and little to enlighten them." Id. at 177.
In this case, the cooperating government witnesses testified to both
the minimum and maximum sentences they faced, which was fre-
quently life, and testified that they knew they faced substantial sen-
tences which they hoped to get reduced. Because any potential bias
on the part of the cooperating government witnesses was brought out
before the jury by these inquiries, the district court did not abuse its
12 UNITED STATES v. SCHEETZ
discretion when it limited Scheetz’s counsel’s cross-examination of
Davis and Baker.2
IV
After Baker was arrested by federal authorities on April 13, 2000,
he agreed to assist them in locating Scheetz, Labuwi, Scott Brooks,
and Lamb, the individuals who had fled following the murder of
Locklear. The federal authorities planned to locate Scheetz by tracing
a call. After Baker paged Scheetz, Scheetz returned the page and the
resulting conversation was recorded. In that conversation, Scheetz
intimated that Scott Brooks possessed a firearm during the attack on
Locklear. At the time the tape was introduced into evidence at trial,
the district court instructed the jury that it was only being admitted
against Scheetz and should not be considered in relation to Scott
Brooks. The district court gave the same instruction at the time the
transcript of the tape was admitted. In addition, the district court
instructed the jury about the limited use of the tape when the tape was
played during Baker’s testimony.
During the government’s rebuttal closing argument, the prosecutor
referred to Scheetz’s statement on the tape that intimated that Scott
Brooks possessed a firearm during the attack on Locklear in rebutting
Scott Brooks’s closing argument that the testimony of Lamb provided
the only evidence that Scott Brooks possessed a firearm. Scott Brooks
immediately objected, and the district court instructed the jury not to
consider Scheetz’s statement against Scott Brooks.
Scott Brooks contends that the prosecutor’s comment entitles him
to a new trial. This argument is without merit.
2
Scheetz also argues that the district court gave the jury a technical
instruction concerning the Sentencing Guidelines and the concept of sub-
stantial assistance and that this technical instruction confused the jury
and, consequently, undermines the outcome of the trial. Although the
district court’s jury instruction concerning the Sentencing Guidelines and
the concept of substantial assistance was unnecessary under Ambers, the
content of the district court’s jury instruction was legally correct, as
Scheetz apparently concedes, and, under the circumstances of this case,
the jury instruction itself did not have the effect of misleading or confus-
ing the jury or prejudicing Scheetz in any way.
UNITED STATES v. SCHEETZ 13
In reviewing a claim of prosecutorial misconduct, we review the
claim to determine whether the conduct "so infected the trial with
unfairness as to make the resulting conviction a denial of due pro-
cess." United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995)
(citations and internal quotation marks omitted). The test for revers-
ible prosecutorial misconduct has two components; first, the defen-
dant must show that the prosecutor’s remarks or conduct were
improper and, second, the defendant must show that such remarks or
conduct prejudicially affected his substantial rights so as to deprive
him of a fair trial. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.
1993). In evaluating the question of prejudice, we have noted that a
number of factors are relevant, namely: (1) the degree to which the
prosecutor’s remarks had a tendency to mislead the jury and to preju-
dice the defendant; (2) whether the remarks were isolated or exten-
sive; (3) absent the remarks, the strength of competent proof
introduced to establish the guilt of the defendant; (4) whether the
comments were deliberately placed before the jury to divert attention
to extraneous matters; (5) whether the prosecutor’s remarks were
invited by improper conduct of defense counsel; and (6) whether
curative instructions were given to the jury. United States v. Wilson,
135 F.3d 291, 299 (4th Cir. 1998).
In this case, the prosecutor’s comment, although improper (as the
government concedes), was one isolated comment made during an
extensive rebuttal closing argument. And while it may be said that the
prosecutor’s comment misled the jury and prejudiced Scott Brooks in
a slight way, there was other evidence in the record concerning Scott
Brooks’s possession of a firearm. For example, Floyd testified that all
three of the people that ran by him had weapons. The slight prejudice
suffered by Scott Brooks was most assuredly cured by the district
court’s immediate curative instruction and there is nothing in the
record to suggest that the prosecutor’s comment was deliberately
placed before the jury to divert its attention to extraneous matters.
Most importantly, absent the prosecutor’s improper remark, the gov-
ernment’s case against Scott Brooks was overwhelming. After consid-
ering all of these factors, we conclude that the prosecutor’s improper
remark did not so infect "the trial with unfairness as to make the
resulting conviction a denial of due process." Morsley, 64 F.3d at 913
(citations and internal quotation marks omitted).
14 UNITED STATES v. SCHEETZ
V
In sentencing Scheetz and Labuwi on count one, the district court
applied United States Sentencing Commission, Guidelines Manual,
(USSG) § 2D1.1(d)(1), which directs the district court to apply USSG
§ 2A1.1, the first-degree murder Sentencing Guideline, in sentencing
a defendant for a drug offense "[i]f a victim was killed under circum-
stances that would constitute murder under 18 U.S.C. § 1111 had such
killing taken place within the territorial or maritime jurisdiction of the
United States." USSG § 2D1.1(d)(1).3 Section 1111(a) provides:
Murder is the unlawful killing of a human being with malice
aforethought. Every murder perpetrated by . . . any . . . kind
of willful, deliberate, malicious, and premeditated killing; or
committed in the perpetration of, or attempt to perpetrate,
any arson, escape, murder, kidnapping, treason, espionage,
sabotage, aggravated sexual abuse or sexual abuse, burglary,
or robbery . . . is murder in the first degree.
18 U.S.C. § 1111(a).
Scheetz and Labuwi contend that the district court erred when it
applied USSG § 2D1.1(d)(1) to them because the killing of Locklear
was not a murder as defined in 18 U.S.C. § 1111. This argument is
without merit.
In reviewing the district court’s application of USSG
§ 2D1.1(d)(1), we review the district court’s legal determinations de
novo and its findings of fact for clear error. United States v. Dawkins,
202 F.3d 711, 714 (4th Cir.), cert. denied, 529 U.S. 1121 (2000).
Because 18 U.S.C. § 1111 covers crimes committed within the ter-
ritorial jurisdiction of the United States and because there is no fed-
eral burglary statute, 18 U.S.C. § 13 assimilates the North Carolina
state law of burglary. Under North Carolina state law, a burglary is
defined under the common law. N.C. Gen. Stat. § 14-51. The com-
3
The first-degree murder Sentencing Guideline, USSG § 2A1.1, sets a
base offense level of forty-three, resulting in a presumptive life sentence
in all cases. USSG Ch.5, Pt. A (sentencing table).
UNITED STATES v. SCHEETZ 15
mon law of North Carolina defines burglary as the breaking and
entering into an occupied dwelling in the nighttime with the intent to
commit a felony therein. State v. Parker, 516 S.E.2d 106, 117 (N.C.
1999), cert. denied, 528 U.S. 1084 (2000).
In this case, Scheetz and Labuwi’s forced entry at night into the
residence occupied by Locklear and Lester constituted a burglary
under North Carolina state common law because they broke into the
occupied residence at night with the intent to commit felonies therein,
namely, the assault and robbery of Michael Hagins. Because the kill-
ing of Locklear was committed during the perpetration of a burglary,
had the killing taken place within the territorial or maritime jurisdic-
tion of the United States, it would have constituted a murder under 18
U.S.C. § 1111. Thus, the district court did not err in applying USSG
§ 2D1.1(d)(1) because the killing of Locklear constituted a violation
of 18 U.S.C. § 1111, which violation was committed during and in
furtherance of the conspiracy charged in count one.
VI
As noted earlier, count one charged Labuwi with conspiracy to dis-
tribute and to possess with the intent to distribute in excess of 1,000
kilograms of marijuana and in excess of twenty kilograms of Ecstasy
in violation of 21 U.S.C. §§ 841(a)(1) and 846. Labuwi proceeded to
trial, but, before the government rested, he withdrew his plea of not
guilty and entered a plea of guilty on counts one and three.
During the plea colloquy, Labuwi acknowledged that: (1) he had
discussed with his counsel the charges in the indictment to which he
intended to plead guilty; (2) he understood the charges to which he
intended to plead guilty; (3) the government would have to prove the
charges in counts one and three by competent evidence beyond a rea-
sonable doubt; (3) he understood the district court’s explanation of the
maximum penalties he faced, which included a life sentence on count
one; (4) he had discussed with his counsel the applicability and
impact of the Sentencing Guidelines on his case; and (5) no promise
induced him to plead guilty. When asked if he conspired and agreed
with others to distribute and to possess with the intent to distribute
marijuana and Ecstasy, "as alleged in count one," (J.A. 1453), counsel
for Labuwi informed the district court that Labuwi "admits that he is
16 UNITED STATES v. SCHEETZ
guilty of the conspiracy. As far as the Ecstasy, it’s his position that
he didn’t conspire in the Ecstasy but he understands that could be
used in the Guidelines range if the government proves it by a prepon-
derance of the evidence." (J.A. 1453-54). In response, the district
court asked Labuwi if had conspired to possess and to distribute mari-
juana to which Labuwi responded that he had so conspired. The dis-
trict court further inquired of Labuwi if he was "in fact" guilty of
counts one and three to which Labuwi responded in the affirmative.
(J.A. 1454). The district court then concluded:
Since you advise that you are, in fact, guilty as charged in
count[s] one and three, and since you know your right to
trial, what the maximum possibility of punishment is, since
you are voluntarily pleading guilty, the court will condition-
ally accept your guilty plea and enter a judgment of guilty.
Therefore, let the record reflect the court is satisfied and
finds as a fact the plea was freely and voluntarily entered by
the defendant. At the time it was entered, the defendant had
a full and complete understanding of the charges and maxi-
mum penalties provided by law, and the plea is supported by
an independent basis in fact containing each essential ele-
ment of the offense.
The plea is conditionally accepted. He’s adjudged guilty.
(J.A. 1454-55). At sentencing, the district court rejected Labuwi’s
contention that he pled guilty to being a part of a conspiracy that
involved less than 1,000 kilograms of marijuana.
Labuwi contends that, even though he pled guilty to count one,
which, under 21 U.S.C. § 841(b)(1)(A), carried the penalty of ten
years to life, he should not have been sentenced within that range
because he did not plead guilty to a conspiracy to distribute and to
possess with the intent to distribute in excess of 1,000 kilograms of
marijuana, but rather he pled guilty to being involved in a conspiracy
to distribute and to possess with the intent to distribute an unspecified
amount of marijuana, and, therefore, under Apprendi v. New Jersey,
530 U.S. 466 (2000), he could only be sentenced to a maximum sen-
UNITED STATES v. SCHEETZ 17
tence of twenty years under 21 U.S.C. § 841(b)(1)(C). Labuwi’s argu-
ment is disingenuous.
Under Apprendi, the government was required to charge the drug
quantity of 1,000 kilograms of marijuana in the indictment and to
prove that amount beyond a reasonable doubt in order for the district
court to impose the enhanced penalties (ten years to life) under 21
U.S.C. § 841(b)(1)(A). As alleged in the indictment, the marijuana
portion of the conspiracy involved in excess of 1,000 kilograms of
marijuana. Because Labuwi pled guilty to being involved in a con-
spiracy "as alleged in count one," (J.A. 1453) and acknowledged that
he was "in fact" guilty of counts one and three, (J.A. 1454), the con-
spiracy to which Labuwi pled guilty involved a conspiracy to distrib-
ute and to possess with the intent to distribute in excess of 1,000
kilograms of marijuana. To be sure, Labuwi acknowledged during the
plea colloquy that the maximum sentence for count one was life,
which is the maximum sentence for a drug offense involving at least
1,000 kilograms of marijuana, 21 U.S.C. § 841(b)(1)(A). If Labuwi
had intended to plead guilty to being involved in a conspiracy to dis-
tribute and to possess with the intent to distribute an unspecified
amount of marijuana, or one that involved less than 1,000 kilograms
of marijuana, the district court would have advised Labuwi that the
maximum sentence for such an offense was less than life, for exam-
ple, forty years, id. § 841(b)(1)(B) (100 kilograms or more of mari-
juana), twenty years, id. § 841(b)(1)(C) (fifty kilograms or more but
less than 100 kilograms of marijuana), or five years, id.
§ 841(b)(1)(D) (less than fifty kilograms of marijuana); however, the
district court correctly did not so advise Labuwi.
In accepting Labuwi’s guilty plea to count one, the district court
had the authority and in the end the responsibility to determine
whether there was a sufficient factual basis to support the charge that
Labuwi was a member of the conspiracy that distributed in excess of
1,000 kilograms of marijuana. The district court made this finding not
only when Labuwi pled guilty but also at the sentencing hearing. We
are satisfied that Labuwi fully understood the nature of the charges to
which he was pleading guilty and that there was a sufficient factual
basis for the district court to conclude that Labuwi was guilty of con-
spiring to distribute and to possess with the intent to distribute in
excess of 1,000 kilograms of marijuana, id. § 841(b)(1)(A).
18 UNITED STATES v. SCHEETZ
VII
Scott Brooks was convicted under count one of conspiracy to dis-
tribute and to possess with the intent to distribute less than fifty kilo-
grams of marijuana, an offense carrying a statutory maximum of five
years, id. § 841(b)(1)(D). Scott Brooks was convicted under count
three of using or carrying a firearm during and in relation to the count
one conspiracy, but was acquitted of discharging that firearm. Scott
Brooks’s conviction on count three carried a statutory minimum of
five years and a statutory maximum of life. In Scott Brooks’s presen-
tence report (PSR), the probation officer found Scott Brooks’s Sen-
tencing Guidelines range for count one to be sixty months because the
Sentencing Guidelines minimum for count one as calculated by appli-
cation of USSG § 2D.1(d)(1) (life) exceeded the statutory maximum
sentence for Scott Brooks’s conviction on count one (sixty months),
id. § 5G1.1(a) ("Where the statutorily authorized maximum sentence
is less than the minimum of the applicable guideline range, the statu-
torily authorized maximum sentence shall be the guideline sen-
tence."). With regard to count three, the probation officer found Scott
Brooks’s Sentencing Guidelines range to be sixty months, id.
§ 2K2.4(a)(2) ("If the defendant . . . was convicted of violating . . .
Section 924(c) . . ., the guideline sentence is the minimum term of
imprisonment required by statute.").
Prior to sentencing, the government moved for an upward depar-
ture on Scott Brooks’s count three sentence. In its motion, the govern-
ment cited two grounds for an upward departure: (1) the death of
Locklear under USSG § 5K2.1; and (2) the physical injury to Floyd
under USSG § 5K2.2. The district court agreed to upwardly depart on
Brooks’s count three sentence, principally relying on the death of
Locklear and the physical injury to Floyd in arriving at its decision
to impose a 322-month sentence (sixty months on count one, 262 con-
secutive months on count three):
The last, and by far most significant, aggravating factor is
the defendant’s participation in the murder of Marcus
Locklear and the shooting of Ronald Floyd on April 11,
2000. As noted in the presentence report, the cross-reference
at Section 2D1.1(d)(1) and the application of Sec-
tion 2A1.1(a) direct that the appropriate offense level for
UNITED STATES v. SCHEETZ 19
this conduct is 43, which under any Criminal History Cate-
gory requires life imprisonment. While the court finds the
total unpunished aggravating conduct compelling, the court
does not find that an upward departure to life imprisonment,
as has been suggested by guideline calculations, would be
appropriate. This finding is based primarily on the defen-
dant’s subservient role to Timothy Scheetz, and on the fact
that the defendant did not contemplate that Locklear was to
be murdered. Therefore, beginning at an offense level of 43
as established in the presentence report, the court will
deduct 4 offense levels comparable to the Role Adjustment
at Section 3B1.2(a). The court recognizes that the defendant
did not fit the description of minimal participant as provided
in the Commentary to Section 3B1.2; however, the court
also recognizes that an offense level of 43 is the highest
level allowed by the guidelines and feels that a 4 level
reduction is necessary to ensure adequate consideration of
the defendant’s lower level of culpability. With this reduc-
tion, and in view of the defendant’s criminal history cate-
gory of I, an offense level of 39 and an imprisonment range
of 262-327 months results. Considering the mandatory con-
secutive 5 year term required in Count 3, the court views the
bottom of this range, which results in a total term of impris-
onment of 322 months, as appropriate punishment.
(J.A. 1821).
A sentencing court may depart and "impose a sentence outside the
range established by the applicable guidelines, if the court finds ‘that
there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into account by the Sentencing
Commission in formulating the guidelines that should result in a sen-
tence different from that described.’" USSG § 5K2.0 (quoting 18
U.S.C. § 3553(b)). With the exception of a few factors that the Sen-
tencing Guidelines specifically note may not be considered as
grounds for departures by the sentencing court, the Sentencing Guide-
lines do not limit "‘the kinds of factors, whether or not mentioned
anywhere else in the guidelines, that could constitute grounds for
departure in an unusual case.’" Koon v. United States, 518 U.S. 81,
93 (1996) (quoting USSG Ch. 1, Pt. A, intro. comment. 4(b)). How-
20 UNITED STATES v. SCHEETZ
ever, because the Sentencing Guidelines were established to create,
inter alia, uniformity and regularity in the sentencing of similarly sit-
uated defendants, "[b]efore a departure is permitted, certain aspects of
the case must be found unusual enough for it to fall outside the heart-
land of cases in the Guideline." Koon, 518 U.S. at 98. This is often
referred to as the heartland theory for departures. USSG Ch. 1, Pt. A,
intro. comment. 4(b), id. § 5K2.0.
Our decision in United States v. Rybicki, 96 F.3d 754 (4th Cir.
1996), established a five-step analysis to be used by district courts in
deciding whether to depart from an applicable Sentencing Guideline.
First, a district court must determine the circumstances and conse-
quences of the offense, which determination we review only for clear
error. Id. at 757. The district court found that Scott Brooks played a
significant role in the murder of Locklear and the shooting of Floyd,
and we cannot conclude that this finding is clearly erroneous. Second,
the district court must decide whether any of the circumstances and
consequences appear "‘atypical’" enough to potentially take the case
out of the applicable Sentencing Guideline’s heartland. Id. The dis-
trict court identified several factors, but ultimately relied on the mur-
der of Locklear and the shooting of Floyd as "atypical" factors, and
we do not review the district court’s identification of these factors. Id.
Third, the district court must classify each factor that could poten-
tially remove a case from the applicable Sentencing Guideline as
either: (1) a "forbidden" basis for departure; (2) an "encouraged" basis
for departure; (3) a "discouraged" basis for departure; or (4) an "un-
mentioned" basis for departure. Id. We review de novo this classifica-
tion by the district court. Id. at 758. The death of Locklear and the
shooting of Floyd both are encouraged factors. USSG § 5K2.1
(death), id. § 5K2.2 (physical injury). Fourth, the district court
(assuming, as here, that it determined in step three that the two afore-
mentioned factors are encouraged ones for departure) must determine
whether the Sentencing Guidelines have already accounted for the
factor. If the Sentencing Guidelines have not already taken the factor
into account, and if the factor is encouraged, the factor is usually an
appropriate one for departure. Koon, 518 U.S. at 94-95. We review
de novo the determination of whether an applicable Sentencing
Guideline already takes a particular factor into account. Rybicki, 96
F.3d at 758. The Sentencing Guideline for possession of a firearm
during and in relation to a drug trafficking offense, USSG
UNITED STATES v. SCHEETZ 21
§ 2K2.4(a)(2), does not take into account that death or physical injury
may be a reasonably foreseeable result from the commission of the 18
U.S.C. § 924(c) offense. We see nothing in the text of USSG
§ 2K2.4(a)(2), and Scott Brooks points to nothing in USSG
§ 2K2.4(a)(2), that would require us to disturb this conclusion. Sec-
tion 2K2.4(a)(2) provides that the Sentencing Guidelines sentence for
a violation of 18 U.S.C. § 924(c) "is the minimum term of imprison-
ment required by statute," USSG § 2K2.4(a)(2), but nothing in USSG
§ 2K2.4(a)(2) provides an adjustment for death or physical injury
where the death or physical injury is a reasonably foreseeable result
from the commission of the 18 U.S.C. § 924(c) offense. The fifth and
final step in the Rybicki analysis requires the district court to decide
whether a departure, based on these appropriately classified factors,
is, in fact, warranted and reasonable under the circumstances. 96 F.3d
at 758; see also United States v. Terry, 142 F.3d 702, 707 (4th Cir.
1998). We review the ultimate departure decision for abuse of discre-
tion, and any factual determinations underlying this decision for clear
error. Rybicki, 96 F.3d at 758.
We find no abuse of discretion in the district court’s decision to
depart upward from a sixty-month sentence on count three to a sen-
tence of 262 months. We agree with the district court that Scott
Brooks’s culpability in the death of Locklear and the physical injury
of Floyd is at the low end of the spectrum, in that Scott Brooks was
an indirect cause of these injuries, but we cannot conclude that Scott
Brooks is outside the scope of USSG § 5K2.1 or USSG § 5K2.2.
Unintended consequences are often the result of reckless behavior,
and while perhaps Scott Brooks could not have anticipated the partic-
ular sequence of events, Scott Brooks should have foreseen the possi-
bility of serious physical harm to another as a result of his actions. We
see no basis for foreclosing a departure under USSG § 5K2.1 or
USSG § 5K2.2 when a defendant helps put into motion a chain of
events that risks serious injury or death, even when an intent to harm
is entirely absent and the defendant was not directly responsible for
the death. Cf. United States v. Diaz, 285 F.3d 92, 100-01 (1st Cir.
2002) (holding that, in a 18 U.S.C. § 922(g)(1) prosecution, USSG
§ 5K2.1 upward departure was warranted because the defendant
"should have foreseen the possibility of serious harm" as a result of
his actions, even though the defendant harbored no intent to harm and
was not directly responsible for the death); United States v. Fortier,
22 UNITED STATES v. SCHEETZ
242 F.3d 1224, 1232-33 (10th Cir. 2001) (holding that an increased
sentence may be imposed for harms that were a reasonably foresee-
able consequence of the defendant’s conduct even where the defen-
dant did not directly cause the specific harm). Furthermore, the extent
of the departure was eminently reasonable. Scott Brooks’s participa-
tion in the death of Locklear amounted to conduct that put him within
the scope of the most analogous Sentencing Guideline related to his
conduct, the first-degree murder Sentencing Guideline under USSG
§ 2A1.1, resulting in an offense level of forty-three. The district court
understandably reduced Scott Brooks’s offense level by four levels
for his less culpable role in the death of Locklear. Consequently, we
see no abuse of discretion in the district court’s decision to sentence
Scott Brooks on count three to 262 months’ imprisonment.
VIII
For the reasons stated herein, the judgments of the district court are
affirmed.
AFFIRMED