United States v. Brandon ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4363
SANDAKO MESHAWN BRANDON,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 03-4439
SANDAKO MESHAWN BRANDON,
Defendant-Appellee.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-02-193)
Argued: January 22, 2004
Decided: March 31, 2004
Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed in part, vacated and remanded in part, by published opinion.
Judge Wilkinson wrote the opinion, in which Judge Luttig and Judge
Traxler joined.
2 UNITED STATES v. BRANDON
COUNSEL
ARGUED: Eric Jason Foster, Asheville, North Carolina, for
Appellant/Cross-Appellee. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee/Cross-
Appellant. ON BRIEF: Anna Mills Wagoner, United States Attor-
ney, Greensboro, North Carolina, for Appellee/Cross-Appellant.
OPINION
WILKINSON, Circuit Judge:
Federal informants wearing recording devices twice purchased
crack cocaine from appellant Sandako M. Brandon. At Brandon’s
trial, the government played the tape-recorded conversations, and it
also provided transcripts to the jury as an aid in listening to the
recordings. Brandon was subsequently convicted on charges of drug
conspiracy and distribution of crack cocaine. Brandon did not object
to the transcripts during the trial, but he now claims that the trial court
should have independently reviewed the transcripts before they were
shown to the jury. Because the transcripts were accurate and the jury
was properly instructed on their use, we find Brandon’s argument
without merit, and we affirm Brandon’s convictions. However,
because the district court wrongly discounted Brandon’s prior convic-
tions in determining whether Brandon was a career offender, we
vacate and remand for resentencing.
I.
On March 8, 2002, Travis S. Knight, a paid informant working for
the Federal Bureau of Investigation (FBI), met with a cocaine dealer
named Joe Lee White in an attempt to purchase a "big eight," or four
and one-half ounces of crack cocaine. Knight was wearing a record-
ing device that tape-recorded the course of events between himself
and White. White first told Knight that Brandon could supply the
cocaine, and then White called Brandon, who agreed to the sale.
Knight and White drove to Brandon’s residence, and White went into
Brandon’s home and came out with a package of crack cocaine.
UNITED STATES v. BRANDON 3
Knight weighed the cocaine, found that it was short of the expected
four and one-half ounces, and negotiated a price cut. Knight counted
out $3,750 and handed it to White, who carried the money into Bran-
don’s house. Knight and White then left Brandon’s house, and Knight
subsequently delivered the recording device, the package of crack
cocaine, and $150 in leftover "buy" money to FBI Special Agent John
Spears.
On March 19, 2002, Knight returned to Brandon’s house and spoke
with Brandon himself. Knight again wore a recording device that
tape-recorded their conversation. When Knight asked Brandon about
obtaining another "big eight," Brandon quoted a price of "35" and told
Knight to "holler at Joe." Knight understood Brandon to mean both
that the price would be $3,500, and that Knight would again have to
go through Joe Lee White in order to purchase the cocaine. As he had
before, Knight delivered the recording device to Special Agent
Spears.
At Brandon’s subsequent trial for conspiracy to distribute cocaine
base and distribution of cocaine base, the government introduced the
recordings of Knight’s conversations with White and Brandon. The
first recording was of Knight’s conversation with White on March 8.
Both Knight and White identified their voices on the tape. In addition,
both White and Special Agent Spears testified that the recording fairly
and accurately represented the events of March 8. The government
noted that a transcript of the March 8 tape had been provided to Bran-
don’s counsel. The March 8 tape was subsequently admitted into evi-
dence without objection from Brandon’s counsel.
Once the March 8 tape had been admitted into evidence, the gov-
ernment requested permission to play the recording and to distribute
copies of the transcript to the jury, so that jury members could read
along as they listened to Knight and White’s drug deal. Brandon’s
counsel lodged no objection, and the district court allowed the gov-
ernment to pass out copies of the transcript to the jury.
The government next introduced its tape-recording of Knight’s
conversation with Brandon on March 19. Knight identified the voices
on the recording as his and Brandon’s, and Special Agent Spears
again testified that the recording fairly and accurately represented the
4 UNITED STATES v. BRANDON
events of March 19. As with the March 8 tape, the March 19 tape was
admitted into evidence without objection from Brandon’s counsel.
And once more, when the government sought permission to play the
March 19 tape and distribute copies of a transcript to the jury, Bran-
don’s counsel did not object and the government’s request was
granted.
Finally, at the close of evidence in the case, the government moved
that the transcripts of the March 8 and March 19 tapes be admitted
into evidence. Brandon’s counsel offered no objection. As to the tran-
scripts, the district court cautioned the jury that
with respect to the transcript, that’s not evidence, but you’re
to consider the tape itself as evidence — the tape recording
as evidence, but the transcript is merely used to allow you
to follow along with . . . what the recording was indicating.
Your recollection of the tape itself or the tape recording is
what controls in this case to the extent there’s any difference
between what you may have read on the transcript and what
you heard on the tape.
The court thus made clear to the jurors that the tape recording was
controlling, and that the transcript was intended only as an aid in lis-
tening to the recording. Moreover, the court repeated this warning
during its instructions to the jury, and it did not allow the transcripts
to be sent back into the jury room while the jury was deliberating.
II.
Despite the district court’s admirable caution, Brandon contends
that the court erred in allowing use of the transcripts of the March 8
and March 19 tapes. Brandon does not actually claim that the tran-
scripts were inaccurate in any respect. Rather, Brandon claims simply
that the district court should have reviewed the transcripts and certi-
fied their accuracy — on the court’s own initiative, no less, since
Brandon never objected at trial to the transcripts nor asked the court
to undertake any sort of review. Because Brandon never objected dur-
ing his trial to the transcripts’ use, we review his claim for plain error.
See United States v. Olano, 507 U.S. 725, 732 (1993); United States
v. Higgs, 353 F.3d 281, 309 (4th Cir. 2003).
UNITED STATES v. BRANDON 5
To begin with, we have squarely rejected Brandon’s claim before.
In United States v. Collazo, 732 F.2d 1200, 1203-04 (4th Cir. 1984),
facing virtually identical facts, we held that a district court had not
abused its discretion in allowing the use of transcripts without first
reviewing them. The district court in Collazo permitted jurors to use
transcripts in listening to audio recordings admitted into evidence by
the government. Collazo, 732 F.2d at 1203. The Collazo defendants
never stipulated to the transcripts’ accuracy, and the district court
never attempted to verify their accuracy on its own. Id. But while the
defendants voiced a general objection to use of the transcripts, they
apparently pointed to no specific inaccuracies in the transcripts them-
selves. Id. at 1203-04.
On appeal, we held that the district court had acted within its dis-
cretion in permitting use of the disputed transcripts. Id. at 1203. We
found it important that, as in the present case, federal agents had testi-
fied that the transcripts were authentic; defense counsel had been free
to object to inaccuracies in the transcripts or to challenge the manner
in which the transcripts were prepared; and the jury had been cau-
tioned that the tapes rather than the transcripts were controlling in the
event of any discrepancies. Id. at 1203-04. In light of these safe-
guards, the jury’s use of the transcripts had not actually prejudiced the
Collazo defendants, who had never attempted to challenge the tran-
scripts’ accuracy. Id. at 1203.
Brandon’s case is even less persuasive than that of the Collazo
defendants: at least in Collazo, the defendants offered some vague
objection during the trial to use of the transcripts, while Brandon
raises his objection for the first time on appeal. As the First Circuit
has put it, "[w]e will not require trial judges to screen transcripts and
to make objections where the parties themselves have raised none; we
leave such legal advocacy to counsel." United States v. DeLeon, 187
F.3d 60, 65 (1st Cir. 1999). It is not incumbent on district courts to
review transcripts in order to ensure their accuracy, when the parties
themselves have not pointed to any inaccuracies.
Moreover, even were we to assume that the district court’s failure
to review the transcripts of the March 8 and 19 tape recordings was
somehow plainly erroneous, Brandon could not plausibly contend that
the error "affect[ed] substantial rights." Olano, 507 U.S. at 734. Bran-
6 UNITED STATES v. BRANDON
don was free to explore through cross-examination any inaccuracies
in the transcripts and to submit alternative versions. United States v.
Capers, 61 F.3d 1100, 1107 (4th Cir. 1995) (citing Collazo, 732 F.2d
at 1204). Far from it, Brandon’s counsel repeatedly used the tran-
scripts during cross-examination of both White and Knight and during
closing argument. Brandon’s counsel not only failed to challenge the
transcripts in any respect, but felt comfortable enough with their
veracity that he regularly depended on them during the trial. Indeed,
even at oral argument, Brandon’s counsel could not identify a single
inaccuracy in the transcripts. That Brandon has not challenged the
transcripts’ fidelity to the recordings — either before the district court
or now on appeal — leads us to conclude that the transcripts were
substantially accurate. Collazo, 732 F.2d at 1204; see also United
States v. Frazier, 280 F.3d 835, 849-50 (8th Cir. 2002).
In addition, as a result of the district court’s cautionary instructions,
the jury was made well aware that the transcripts were intended solely
as an aid in listening to the March 8 and 19 tapes. As the district court
explained to the jury: "Your recollection of the tape itself or the tape
recording is what controls in this case to the extent there’s any differ-
ence between what you may have read on the transcript and what you
heard on the tape." The district court’s repeated instructions to the
jury thus ensured that the jury did not mistake the transcripts, rather
than the tapes, as the critical pieces of evidence. Capers, 61 F.3d at
1107; Collazo, 732 F.2d at 1203; see also United States v. Delgado,
357 F.3d 1061, 1071 (9th Cir. 2004). Moreover, the district court did
not permit the transcripts to be sent to the jury room during the jury’s
deliberations. There is in sum no chance that the defendant was preju-
diced by the use of the transcripts in this case.
III.
The government has cross-appealed, claiming that the district court
should have sentenced Brandon as a career offender pursuant to
§ 4B1.1(a) of the Sentencing Guidelines. Section 4B1.1(a) states:
A defendant is a career offender if
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of convic-
tion;
UNITED STATES v. BRANDON 7
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and
(3) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.
U.S. Sentencing Guidelines Manual § 4B1.1(a) (2003). It is undis-
puted that Brandon was at least eighteen years old when he was con-
victed before the district court of two controlled substance offenses,
namely, drug conspiracy and distribution of cocaine base. And both
parties agree that Brandon had one prior drug-related conviction from
December 1998. Thus the only question is whether Brandon has a
second prior qualifying conviction, and here the parties disagree over
whether we may count Brandon’s conviction in July 1997 for com-
mon law robbery.
In March 1997, Brandon was arrested and charged with both felony
unlawful possession of a firearm and felony possession of crack
cocaine with the intent to distribute. In April, based on a separate inci-
dent, Brandon was charged with felony maintenance of a dwelling for
the sale of crack cocaine. And then in May, based on yet a third unre-
lated incident, Brandon was charged with felony common law rob-
bery. Brandon pled guilty to these four counts in July 1997, in return
for which the State of North Carolina dismissed five additional drug-
related felony counts and four additional drug-related misdemeanor
counts. The four offenses to which Brandon had pled guilty were con-
solidated for sentencing, and Brandon received a suspended sentence,
thirty days’ imprisonment, and two years’ probation.
However, Brandon was made to pay a North Carolina drug tax
prior to his July 1997 conviction for possession of crack cocaine. We
have held, although the North Carolina courts have rejected the
notion, that the North Carolina drug tax constitutes a criminal penalty
for purposes of the Double Jeopardy Clause. See Lynn v. West, 134
F.3d 582, 588-93 (4th Cir. 1998); see also State v. Adams, 513 S.E.2d
588, 589 (N.C. Ct. App. 1999). Brandon argues that, under Lynn, his
July 1997 drug conviction violated the constitutional protection from
double jeopardy, and that therefore his drug conviction may not be
8 UNITED STATES v. BRANDON
considered as a predicate for purposes of the career offender sentenc-
ing guideline. Of course, Brandon’s conviction in July 1997 for rob-
bery could still provide the second necessary predicate.1 But, Brandon
argues, all of these offenses were consolidated into a single judgment
of conviction that is infirm in light of Lynn.2
There are several difficulties with Brandon’s argument. Brandon
pled guilty to four offenses in July 1997: robbery, possession of
cocaine, maintenance of a crackhouse, and unlawful possession of a
firearm. Lynn, to the extent it precludes anything, precludes only a
penalty enhancement for Brandon’s possession of cocaine. Brandon
has never sought relief from the North Carolina courts on the other
three counts, and his convictions on those counts have been neither
reversed, nor vacated, nor declared constitutionally invalid by any
court, state or federal. See U.S. Sentencing Guidelines Manual
§ 4A1.2, cmt. n.6 (2003) (barring collateral attacks on prior convic-
1
The government only points to Brandon’s robbery conviction as the
second conviction necessary to sentence Brandon as a career offender.
The government has not argued that, and thus we do not decide whether,
Brandon’s conviction for maintenance of a crackhouse could also suffice.
But see U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1 (2003)
(providing that maintenance of a crackhouse can constitute a "controlled
substance offense" for purposes of career offender guideline).
2
The Guidelines do define the term "two prior felony convictions" as
it is used in § 4B1.1(a). According to the Guidelines,
[t]he term "two prior felony convictions" means
(1) the defendant committed the instant offense of conviction
subsequent to sustaining at least two felony convictions of either
a crime of violence or a controlled substance offense . . . , and
(2) the sentences for at least two of the aforementioned felony
convictions are counted separately under [§§ 4A1.1 and 4A1.2 of
the Guidelines].
U.S. Sentencing Guidelines Manual § 4B1.2(c) (2003). This definition is
unilluminating, though, because the very question is whether Brandon
has sustained convictions that may be counted for purposes of
§ 4B1.2(c)(1). Brandon concedes that if his prior convictions may be
counted, the sentences for those convictions would be counted separately
for purposes of § 4B1.2(c)(2).
UNITED STATES v. BRANDON 9
tions except as otherwise provided for by law). While Lynn may
require us to discount a drug conviction that the State of North Caro-
lina continues to recognize as valid, it does not require us to discount
other state convictions that do not even arguably violate federal law.
Brandon asserts, however, that there are not multiple convictions
that can be disaggregated. According to Brandon, since the state court
entered only a single judgment in July 1997, the entire proceeding
constitutes only a single conviction (and an invalid one after Lynn).
We think that this misinterprets the term "conviction" in the Sentenc-
ing Guidelines. In Deal v. United States, 508 U.S. 129, 130-31
(1993), the Supreme Court faced essentially the same argument in the
context of the federal Armed Career Criminal Act, which imposed
both a five-year sentence on the carry or use of a firearm during a vio-
lent crime and an additional twenty-year sentence on any "second or
subsequent conviction" of the same offense. Deal was convicted in a
single judicial proceeding of six counts of violating the Act. Deal,
508 U.S. at 130.
In Deal, the government claimed that the term "conviction" in the
Act meant the finding of guilt by a judge or jury as to a particular
offense; thus each finding of guilt on the second through sixth counts
was a "subsequent conviction" that triggered the enhanced penalty.
See id. at 131. Deal claimed that the term "conviction" meant the
entry of a final judgment, after the judge or jury had made all of its
findings of guilt; thus since there was only a single judgment entered
on all six counts, there was no "second or subsequent conviction" to
trigger the enhanced penalty. See id.The Court agreed with the government, concluding that the Act’s
use of the term "conviction" most naturally referred to the finding of
guilt by a judge or jury precedent to the entry of a final judgment of
conviction. Id. at 132. The Court therefore made clear that multiple
convictions can and often do occur in a single judicial proceeding. Id.
at 131-32. Failing to differentiate between convictions embodied in
the same judgment, the Deal Court noted, would also have led to an
unacceptably odd result: the applicability of the twenty-year enhance-
ment would have depended on whether the defendant was charged
and tried in separate prosecutions or under a multicount indictment.
Id. at 133-34. And indeed the Supreme Court and this Court have fre-
10 UNITED STATES v. BRANDON
quently referred to multiple convictions arising from a single judg-
ment of conviction. See United States v. Dodson, 291 F.3d 268, 272-
73 (4th Cir. 2002) (collecting references).
Similarly here, while Brandon’s July 1997 adjudication resulted in
a single judgment of conviction, that judgment encapsulated multiple
findings of guilt as to a handful of separate offenses spread out over
the course of months. Each of those distinct findings of guilt, stem-
ming from a separate criminal act, is best understood as a "convic-
tion" for purposes of the career offender sentencing guideline. See,
e.g., United States v. Couch, 291 F.3d 251, 254-56 (3d Cir. 2002)
(finding multiple convictions where defendant pled guilty to multi-
count indictment under 18 U.S.C. § 924); United States v. Street, 257
F.3d 869, 870 (8th Cir. 2001) (finding the same under 16 U.S.C.
§ 668). Of course, not every defendant convicted of multiple offenses
in a single proceeding is a career offender: the convictions must still
result in sentences that are not related under §§ 4A1.1 and 4A1.2 of
the Guidelines, as Brandon concedes was the case here.
The district court therefore erred in not sentencing Brandon as a
career offender. The career offender guideline is intended to punish
more strictly those defendants who have previously committed at
least two violent or drug-related crimes. There is no question that
Brandon robbed someone in May 1997, and that he possessed drugs
in December 1998. Brandon’s status as a career offender cannot rest
on whether the North Carolina courts, for purposes of judicial effi-
ciency, consolidated either of those valid prosecutions with an argu-
ably invalid one.
IV.
Brandon’s claim that the district court should have independently
reviewed the transcripts of the government’s audio recordings is with-
out merit. However, the government correctly contends that Brandon
should have been sentenced as a career offender. The judgment of the
district court is therefore
AFFIRMED IN PART, VACATED AND
REMANDED IN PART.