United States v. Smith , 441 F.3d 254 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4829
TERRANCE SMITH, a/k/a Ty,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4878
RODNEY REEP, a/k/a Dirty Harry,
a/k/a Harry,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4117
KARL E. MOORE, SR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-02-217)
Argued: September 22, 2005
Decided: March 21, 2006
2 UNITED STATES v. SMITH
Before WILKINS, Chief Judge, LUTTIG, Circuit Judge, and
James C. DEVER, III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkins wrote the major-
ity opinion, in which Judge Luttig joined. Judge Dever wrote an opin-
ion concurring in part and dissenting in part.
COUNSEL
ARGUED: Kevin Michael Schad, SCHAD & SCHAD, Lebanon,
Ohio; Jesse Edgar Demps, Portsmouth, Virginia; Andrew Michael
Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellants. Laura
Marie Everhart, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF: Craig W. Sampson, Richmond, Virginia, for Appellant
Karl E. Moore, Sr. Paul J. McNulty, United States Attorney, Michael
J. Elston, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
OPINION
WILKINS, Chief Judge:
Karl E. Moore, Sr., Terrance Smith, and Rodney Reep (collec-
tively, "Appellants") appeal their convictions and sentences in this
drug conspiracy case. Concluding that all of Appellants’ numerous
arguments are without merit,1 we affirm.
1
Although we have considered all of Appellants’ claims, some are so
clearly without merit that they do not warrant discussion in this opinion.
Any claim not discussed in the opinion, including those raised in pro se
filings by Appellants, is summarily rejected.
UNITED STATES v. SMITH 3
I.
The underlying facts are not directly pertinent to the issues raised
on appeal and thus may be briefly stated. In 1997, Moore and his fam-
ily moved from Arizona to the Tidewater area of Virginia. Moore
opened a gas station and convenience store, which soon became a
haven for gambling and drug dealing. Moore primarily dealt cocaine
and cocaine base. Smith assisted Moore in the enterprise, often deliv-
ering large quantities of narcotics and collecting money from drug
customers. Smith also stored drugs at his home for Moore.
After Reep was released from prison in May 2001, Moore assisted
him in getting started in the drug business. (Moore and Reep were old
friends, and Moore had supplied Reep with heroin for resale while
Reep was in prison.) Reep worked at an automobile shop in the Tide-
water area. Vehicles loaded with cocaine would be driven to the shop,
where Reep would unload the cocaine. Moore paid Reep for his ser-
vices in cocaine.
Each Appellant was convicted of conspiracy to possess with the
intent to distribute cocaine, cocaine base, or heroin, see 21 U.S.C.A.
§ 846 (West 1999), and additional offenses. Moore was sentenced to
life imprisonment; Smith and Reep were each sentenced to 360
months imprisonment.
II.
We first consider Appellants’ challenges to their convictions.
A. Moore’s Challenges
1.
Moore first argues that certain counts of his indictment were
unconstitutionally vague. In particular, Moore challenges counts such
as Count Four, which alleged that he possessed cocaine with the
intent to distribute "[i]n or about Winter, 2000." J.A. 165. He main-
tains that he cannot be expected to mount a defense to a charge that
does not identify a particular date.
4 UNITED STATES v. SMITH
An indictment meets the guarantees of the Fifth and Sixth Amend-
ments "if it, first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he must
defend, and, second, enables him to plead an acquittal or conviction
in bar of future prosecutions for the same offense." Hamling v. U.S.,
418 U.S. 87, 117 (1974).2 "Where a particular date is not a substantive
element of the crime charged, strict chronological specificity or accu-
racy is not required." U.S. v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir.
1994) (internal quotation marks omitted). Since time is not an element
of possession with the intent to distribute and there is no argument
that the statute of limitations had expired, see U.S. v. Brewer, 1 F.3d
1430, 1437 (4th Cir. 1993), the indictment was not unconstitutionally
vague. Accord U.S. v. Synowiec, 333 F.3d 786, 791 (7th Cir. 2003)
("Where the indictment alleges that an offense allegedly occurred ‘on
or about’ a certain date, the defendant is deemed to be on notice that
the charge is not limited to a specific date. He therefore cannot make
the requisite showing of prejudice based simply on the fact that the
government has failed to prove a specific date." (internal quotation
marks omitted)).
2.
Moore next asserts that the district court improperly admitted cer-
tain out-of-court statements made to Government witness William
Henry Scott, IV. We conclude that Moore is not entitled to reversal
of his convictions on this basis.
The Federal Rules of Evidence exclude from the definition of hear-
say "a statement by a coconspirator of a party during the course and
in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). "To
admit testimony under this rule, a court must conclude (1) that there
was a conspiracy involving the declarant and the party against whom
admission of the evidence is sought and (2) that the statements at
issue were made during the course of and in furtherance of that con-
spiracy." U.S. v. Neal, 78 F.3d 901, 905 (4th Cir. 1996) (internal quo-
tation marks omitted).
2
Citations in this opinion are according to ALWD & Darby Dickerson,
ALWD Citation Manual (2d ed., Aspen Publishers 2003).
UNITED STATES v. SMITH 5
Moore challenges the admission of two statements to which Scott
testified. First, Scott testified that in August 2002 Gregory Bonds cal-
led him and asked him to pick up two kilograms of cocaine that were
in a closet in Bonds’ home. Bonds told Scott that Moore had shipped
the cocaine from Arizona to Virginia. Second, Scott testified about a
conversation he had with Van Beasley, an associate of Moore’s.
When Scott observed Beasley with a quantity of cocaine and asked
how he had obtained it, Beasley stated that Moore had robbed some-
one who owed him money.
Although Moore objected to the admission of the statement made
by Bonds, he failed to object to the admission of Beasley’s statement.
We therefore review the admission of Bonds’ statement for abuse of
discretion, see id., and the admission of Beasley’s statement for plain
error, see Fed. R. Crim. P. 52(b); U.S. v. Olano, 507 U.S. 725, 731-
32 (1993). With respect to Beasley’s statement, Moore must establish
not only that an error occurred, but also that the error was plain and
that it affected his substantial rights. Olano, 507 U.S. at 732. Even if
Moore makes this three-part showing, correction of the error remains
within our discretion, which we "should not exercise . . . unless the
error seriously affects the fairness, integrity or public reputation of
judicial proceedings." Id. (alteration & internal quotation marks omit-
ted).
Moore maintains that the Government failed to establish that
Bonds and Beasley were part of the conspiracy, noting that Bonds
was not named in the indictment and that there was no testimony that
Bonds ever bought drugs from Moore. We agree with the Govern-
ment that the evidence presented was sufficient for the jury to con-
clude that Moore, Scott, Bonds, and Beasley were all involved in the
activities of the conspiracy.
Moore next claims that the statements were not made in further-
ance of the conspiracy. "A statement by a co-conspirator is made ‘in
furtherance’ of a conspiracy if it was intended to promote the conspir-
acy’s objectives, whether or not it actually has that effect." U.S. v.
Shores, 33 F.3d 438, 443 (4th Cir. 1994). For example, statements
made by a conspirator to a non-member of the conspiracy are consid-
ered to be "in furtherance" of the conspiracy "if they are designed to
induce that party either to join the conspiracy or to act in a way that
6 UNITED STATES v. SMITH
will assist it in accomplishing its objectives." Id. at 444. Most courts,
including the Fourth Circuit, "construe the in furtherance requirement
so broadly that even casual relationships to the conspiracy suffice to
satisfy the exception." Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence vol. 5, §§ 801.34[5], 801-89 (Joseph
M. McLaughlin ed., 2d ed., Matthew Bender 2005). In light of the
broad construction of the "in furtherance" requirement, we conclude
that the district court did not abuse its discretion in concluding that
the statements by Bonds and Beasley were designed to further the
conspiracy. We therefore affirm the admission of these statements.
3.
Moore next contends that the district court abused its discretion in
allowing Moore’s son, Karl Moore, Jr. (Moore, Jr.), to testify that at
age six he "used to deliver drugs with DC [a friend of Moore’s] on
the bus to Phoenix, Arizona for my father." J.A. 667. Moore main-
tains that this was testimony regarding a prior bad act, in violation of
Rule 404(b) of the Federal Rules of Evidence. Because Moore did not
object to this testimony at trial, our review is for plain error.
Rule 404(b) provides that evidence of other crimes is inadmissible
when it is offered to prove "the character of a person in order to show
action in conformity therewith." This court has recognized that Rule
404(b) is primarily a rule of inclusion, not exclusion. U.S. v. Queen,
132 F.3d 991, 994-95 (4th Cir. 1997). "Evidence that is (1) relevant
to an issue other than character; (2) necessary; and (3) reliable is
admissible under Rule 404(b)." U.S. v. Wells, 163 F.3d 889, 895 (4th
Cir. 1998) (internal quotation marks omitted). Evidence is necessary,
even if it does not relate to an element of a charged offense, "when
it furnishes part of the context of the crime." Id. at 896 (internal quo-
tation marks omitted).
There was no violation of Rule 404(b) here. Moore, Jr.’s testimony
provided part of the context of the crime and revealed the basis for
Moore, Jr.’s knowledge of his father’s drug operations. See U.S. v.
Palma-Ruedas, 121 F.3d 841, 851-52 (3d Cir. 1997) (concluding that
evidence of prior drug activity was admissible under Rule 404(b)
because it "was a link in a chain of events that led to the charged con-
duct"). While Moore, Jr.’s testimony regarding his involvement in the
UNITED STATES v. SMITH 7
drug trade at age six no doubt reflected poorly on Moore, this preju-
dice did not outweigh the probative value of the evidence.
4.
Moore next asserts that the district court abused its discretion in
excluding a witness, Shanika Simmons, on the basis that she violated
an order sequestering witnesses. Moore does not dispute that Sim-
mons violated the witness sequestration rule. He asserts, rather, that
the sanction of exclusion was so disproportional to the violation as to
be an abuse of discretion. See U.S. v. Cropp, 127 F.3d 354, 363 (4th
Cir. 1997) (stating standard of review).
Simmons is Moore’s daughter and was called as a witness on his
behalf. The Government moved to exclude her as a witness on the
basis that she had been present in the courtroom during testimony on
two different days. After questioning Simmons under oath, the district
court ruled that it would allow her to testify as to Moore’s character
but not as to any substantive issues. Moore then proffered that Sim-
mons would have testified regarding Moore, Jr.’s various periods of
incarceration, Moore’s employment, and Moore’s relationship with
Moore, Jr.
A district court has three options for addressing a violation of a
sequestration order. It can sanction the witness for contempt; ensure
that the jury is aware of the violation through cross-examination by
counsel or through instructions by the court; or exclude all or part of
the witness’ testimony. U.S. v. Rhynes, 218 F.3d 310, 323 (4th Cir.
2000) (en banc). Whatever remedy is employed must be proportional
to the violation. Id. at 321.
Exclusion of a witness’ testimony is "an extreme remedy" that "im-
pinges upon the right to present a defense," and thus should be
employed sparingly. Id. (internal quotation marks omitted). Here, the
primary purpose of Simmons’ testimony was to impeach the previous
testimony of Moore, Jr. Although it was not clear how much time
Simmons spent in the courtroom, there appears to be no dispute that
she was not present—indeed, was not even in the courthouse—when
Moore, Jr. testified. Therefore, it is not possible that Simmons could
have tailored her testimony to Moore, Jr.’s in any way. Cf. U.S. v.
8 UNITED STATES v. SMITH
Mongtomery, 262 F.3d 233, 243-44 (4th Cir. 2001) (affirming exclu-
sion of witness when it was not clear which witnesses she had heard
testify). We therefore conclude that the district court abused its dis-
cretion in altogether excluding Simmons’ testimony.
The error was harmless, however. The parties stipulated regarding
the periods of time when Moore, Jr. was in prison. And, several other
witnesses testified regarding Moore’s legitimate business activities
and his relationship with Moore, Jr. Accordingly, Simmons’ testi-
mony would have been cumulative. See U.S. v. Bales, 813 F.2d 1289,
1296 (4th Cir. 1987).
5.
During its rebuttal closing argument, the Government made the fol-
lowing statements:
You know the old saying about birds of a feather. Well,
the defendants chose this flock. They criticize these wit-
nesses, but the reason they are witnesses is because they are
the customers and acquaintances chosen by the defendant to
associate with. . . .
. . .
Now, all of these defendants are guilty, just as . . . many
of the witnesses[ ] are guilty of being drug dealers and
being part of this conspiracy. It’s just a matter of degree.
The only difference is some who sat on that witness stand
admitted it and those sitting at these two tables have not.
J.A. 2241-42 (emphasis added). No objection was raised when this
argument was made. Moore now argues that the emphasized com-
ments were improper because they are a statement of "a specific per-
sonal belief by the Government[ that] the Appellant is guilty of the
offenses." Supp. Br. of Appellant Karl E. Moore, Sr. at 6 (Sept. 13,
2004).3
3
Moore also maintains that the Government’s statements "impermiss-
ibly comment on the Appellant’s right to put the Government to its bur-
den of proof, and not testify on his own behalf." Id. We conclude that the
Government’s argument cannot fairly be construed as commenting on
these matters.
UNITED STATES v. SMITH 9
In order to obtain a new trial on the basis of prosecutorial miscon-
duct, Moore must demonstrate that the Government’s remarks were,
in fact, improper and that the remarks prejudiced him. U.S. v. Mitch-
ell, 1 F.3d 235, 240 (4th Cir. 1993). An assessment of prejudice
requires the court to consider
(1) the degree to which the prosecutor’s remarks have a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
Id. at 241 (internal quotation marks omitted). Because Moore failed
to object at trial, the ordinary test for reversal based on improper
argument is augmented in that Moore must also show that the impro-
priety of the argument was plain. And, even if Moore satisfies these
requirements, the court retains discretion to decline to notice the error.
"As a general premise, a prosecutor’s repeated references to his or
her personal opinion about a defendant may indeed be found
improper." U.S. v. Higgs, 353 F.3d 281, 332 (4th Cir. 2003), cert.
denied, 125 S. Ct. 627 (2004). It is permissible—although not
preferable—for a prosecutor to argue his belief that the evidence
proves the defendant’s guilt. U.S. v. Pupo, 841 F.2d 1235, 1240 (4th
Cir. 1988) (en banc); cf. U.S. v. Sherrill, 388 F.3d 535, 538 (6th Cir.
2004) (holding that statement, "that man is guilty," was not improper
because phrase was prefaced by "the government submits to you"
(internal quotation marks omitted)). What the prosecutor may not do
is suggest a belief in the defendant’s guilt that is not explicitly tied
to the strength of the evidence, because such an argument may sug-
gest to the jury that the prosecutor has independent knowledge of the
defendant’s guilt. 75A Am. Jur. 2d Trial § 634 (Westlaw 2005); see
Pupo, 841 F.2d at 1240.
The Government’s remarks here were made in response to Appel-
lants’ challenges to the witnesses’ truthfulness in their closing argu-
ments. Cf. Higgs, 353 F.3d at 332 (holding that argument about what
defendant’s life in prison would be like was not improper, in part
10 UNITED STATES v. SMITH
because argument responded to defense claims about prison life).
Nevertheless, it is arguable that the Government’s assertion of guilt
was improper. But cf. U.S. v. Passero, 290 F.2d 238, 245 (2d Cir.
1961) (holding that argument that "when you walk like a duck, talk
like a duck, and you look like a duck, you are a duck" was not
improper when made in response to defense claim that prosecution
was relying on guilt by association (internal quotation marks omit-
ted)). Even if the argument was improper, however, there was no prej-
udice. The remark was isolated, occurring at the beginning of a
lengthy rebuttal argument. And, given the context in which the argu-
ment was made, it is unlikely that it had any measurable tendency to
mislead the jury, nor does it appear that the prosecutor had any inten-
tion to divert the attention of the jury.
B. Reep’s Challenges4
1.
Reep first argues that the charges against him should have been
dismissed on double jeopardy grounds. We disagree.
Reep initially was indicted separately from the other Appellants.
Just before jury selection began for Reep’s trial, the Government
informed the district court that Government witness Curtis Roberson
had failed to appear despite his promise to do so. The court issued a
material witness warrant, and Roberson was taken into custody. The
court conducted a hearing, at which Roberson testified that he was
"confused" regarding his duty to appear. J.A. 233. Roberson also tes-
tified that he was taking numerous medications, including an anticon-
vulsant, an antidepressant, and an antipsychotic. The district court
directed that Roberson be taken into custody as a material witness.
After the jury was sworn, the court learned that Roberson had not
been provided with his medications during the five days he had been
in custody. The court questioned Roberson, who stated that he felt
"[a] little weak," id. at 243, and somewhat confused. The court
granted Reep’s request for a mistrial on the ground that Roberson’s
competency was suspect and he needed a psychiatric evaluation.
4
Smith raised one challenge to his conviction, which we have consid-
ered and rejected. See supra n. 1.
UNITED STATES v. SMITH 11
Thereafter, Reep was indicted along with the other Appellants.
Prior to trial, Reep moved to bar retrial on double jeopardy grounds,
arguing that he had been forced to move for a mistrial by the Govern-
ment’s failure to ensure that Roberson was provided with his medica-
tions. Reep argued that even if the Government did not intend to
provoke a mistrial, its conduct had been so reckless as to be "the func-
tional equivalent of" intent to cause a mistrial. Id. at 221. The district
court denied the motion.
While Reep now concedes the absence of any evidence that the
Government acted with intent to provoke a mistrial, he continues to
press his claim that the Government was so reckless in not ensuring
delivery of Roberson’s medications that it should be deemed to have
acted intentionally. We disagree.
The Double Jeopardy Clause provides that no person shall "be sub-
ject for the same offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. This clause protects a criminal defendant from
facing "repeated prosecutions for the same offense," Or. v. Kennedy,
456 U.S. 667, 671 (1982), and accordingly, the government is gener-
ally allowed only one opportunity to compel a defendant to stand trial,
Ariz. v. Washington, 434 U.S. 497, 505 (1978). However, the Double
Jeopardy Clause does not apply when a defendant requests or con-
sents to a mistrial, unless the prosecutor has engaged in conduct
intended to provoke a mistrial. Kennedy, 456 U.S. at 675-76. The
Kennedy intent exception is reserved for conduct "intended to ‘goad’
the defendant into moving for a mistrial." Id. at 676. Further, the
defendant bears the burden of proving that the prosecution acted with
specific intent to provoke a mistrial. U.S. v. Borromeo, 954 F.2d 245,
247 (4th Cir. 1992).
Reep provides no support for his claim that reckless conduct can
be equated to intentional provocation of a mistrial request. Even if we
were to accept this proposition, however, the facts here do not support
a finding of recklessness. Officials at the local jail where Roberson
was housed assured the Government that Roberson would receive his
medications. The Government sought to ensure that Roberson
received his medications by offering to obtain the medications and
bring them to the jail—an offer that the jail refused because it prohib-
its anyone from bringing medications into the jail. Additionally, the
12 UNITED STATES v. SMITH
United States Marshal Service requested that a doctor examine Rober-
son. It thus cannot be said that the Government was reckless with
respect to Roberson’s need to be provided with his medications.
2.
Reep next complains that the district court erred in restricting his
cross-examination of certain witnesses. We conclude that the district
court did not abuse its discretion. See U.S. v. Turner, 198 F.3d 425,
429 (4th Cir. 1999) (stating standard of review).
The Constitution guarantees the right of a criminal defendant "to
be confronted with the witnesses against him." U.S. Const. amend.
VI. "The main and essential purpose of confrontation is to secure for
the [defendant] the opportunity of cross-examination." Davis v.
Alaska, 415 U.S. 308, 315-16 (1974) (emphasis & internal quotation
marks omitted). Indeed, "[c]ross-examination is the principal means
by which the believability of a witness and the truth of his testimony
are tested." Id. at 316. Nevertheless, the district court retains "wide
latitude . . . to impose reasonable limits on . . . cross-examination
based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant." Del. v. Van Arsdall, 475 U.S.
673, 679 (1986). With these principles in mind, we review Reep’s
particular claims.
a. Karl E. Moore, Jr.
Moore, Jr. testified about Reep’s involvement in the conspiracy
during the summer and fall of 2001. According to this testimony,
Moore wanted to help Reep reestablish himself in the drug business
following his release from prison in May 2001. Moore provided Reep
with cocaine to sell in exchange for Reep accepting deliveries of
cocaine and for allowing the conspiracy to use an automobile paint
shop where he worked to remove cocaine that had been concealed in
vehicles.
On cross-examination, Reep’s counsel questioned Moore, Jr. at
length about his agreement to cooperate with the Government, his
UNITED STATES v. SMITH 13
truthfulness, and his ability to accurately recall the events of the sum-
mer of 2001. The district court first asked Reep’s counsel to conclude
cross-examination after he had been questioning Moore, Jr. for
approximately one hour. Reep’s counsel proceeded with further cross-
examination concerning statements Moore, Jr. had made when he was
arrested. The court directed counsel to move on after the Government
stipulated that this questioning had laid an adequate foundation for a
subsequent witness’ testimony. Counsel asked a few more questions,
and then closed his cross-examination.
The district court did not abuse its discretion in limiting cross-
examination. Reep was allowed to thoroughly explore issues relating
to Moore, Jr.’s recall of events and his motives for testifying. Any
further testimony on these subjects would have been cumulative. See
U.S. v. Lancaster, 96 F.3d 734, 744-45 (4th Cir. 1996) (en banc)
(holding that district court did not abuse its discretion in precluding
further inquiry into contents of police officer’s disciplinary file
because further inquiry would have been cumulative).
b. Law Enforcement Witnesses
During a recess, Reep’s attorney observed two Government wit-
nesses, Officer Heath Eckstein (who had just testified) and Officer
John Poch (who was about to testify), talking in the hallway. Accord-
ing to counsel, the officers were "going over a report" that Officer
Eckstein held in his hand. J.A. 1393. Although the court allowed
Reep’s counsel to question Officer Poch regarding the conversation,
after counsel exceeded the bounds set by the court for this examina-
tion, the court questioned the officers. Both officers—who were part-
ners in the investigation of the conspiracy—admitted having a
conversation, but denied discussing the trial.5 The court refused to
allow Reep’s counsel to further cross-examine the officers about their
5
We will assume arguendo that discussion of the case by the officers
would have violated the sequestration order entered by the district court.
See U.S. v. Sepulveda, 15 F.3d 1161, 1175-76 (1st Cir. 1993) (explaining
that Federal Rule of Evidence 615 governs only exclusion of witnesses
from the courtroom; it is within the discretion of the trial court to order
additional restrictions such as prohibiting witnesses from discussing the
case outside the courtroom).
14 UNITED STATES v. SMITH
conversation. Reep contends that this refusal was an abuse of discre-
tion.
When a party alleges a violation of a sequestration order, the court
may allow the matter to be explored through cross-examination. U.S.
v. Sepulveda, 15 F.3d 1161, 1175 n. 8 (1st Cir. 1993). The party alleg-
ing a violation bears the burden of demonstrating that a violation in
fact occurred. U.S. v. Meggers, 912 F.2d 246, 250 (8th Cir. 1990).
Here, both Reep’s counsel and the district court examined the officers
regarding the potential violation of the sequestration order without
producing any indication that the officers had discussed the case. The
district court did not abuse its discretion in prohibiting further cross-
examination.6
c. Other Witnesses
Each time a Government witness testified about the conspiracy
without mentioning Reep, Reep’s counsel cross-examined the witness
about the witness’ lack of knowledge of Reep’s involvement. After
several of these instances, the district court concluded that such exam-
ination was beyond the scope of direct, and refused to allow Reep’s
counsel to continue in this manner.
This ruling was not an abuse of discretion. Nothing precluded
Reep’s counsel from arguing to the jury that witnesses knowledgeable
about the conspiracy had not identified Reep. He did not need to
cross-examine such witnesses in order to make this point.
6
Reep also challenges the following cautionary instruction, which the
court gave to the jury after Reep questioned Officer Poch regarding his
conversation with Officer Eckstein: "Ladies and gentlemen, one caution-
ary instruction. There’s been some references to Officer Eckstein and
this witness. There’s no evidence before this court of any witness collu-
sion or tampering between Officer Eckstein and this officer leaving the
stand." J.A. 1417. Because there was no evidence to support a sequestra-
tion order violation, this instruction was proper to avoid confusion. Cf.
Anderson v. Griffin, 397 F.3d 515, 520 (7th Cir. 2005) (identifying cau-
tionary instructions as one means of avoiding juror confusion).
UNITED STATES v. SMITH 15
3.
Reep next maintains that he was denied a fair trial by the excessive
interference of the district court. For example, with respect to Reep’s
cross-examination of Moore, Jr., Reep contends that "[o]n at least
fourteen(14) occasions . . . the district court interrupted counsel’s
cross-examination sua sponte and without government-initiated
objection." Br. of Appellants at 51 (July 23, 2004). Reep maintains
that on these occasions counsel was "unfairly rebuk[ed]" and "chid-
[ed]." Id. Reep also maintains that the district court should not have
intervened in counsel’s questioning of Reep’s expert witness. When,
as here, the defendant objects to interference by the district court,
review is for abuse of discretion.7 U.S. v. Castner, 50 F.3d 1267, 1272
(4th Cir. 1995).
Rule 614(b) of the Federal Rules of Evidence provides that a dis-
trict court may interrogate witnesses called by the parties. Addition-
ally, the court is required to "exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence."
Fed. R. Evid. 611(a). The court must exercise this control in order to
"make the interrogation and presentation effective for the ascertain-
ment of the truth" and to "avoid needless consumption of time." Id.;
see id. (providing that control also may be exercised to "protect wit-
nesses from harassment or undue embarrassment"). Nevertheless, it is
critically important that the court "retain the general atmosphere of
impartiality required of a fair tribunal." U.S. v. Godwin, 272 F.3d 659,
678 (4th Cir. 2001) (internal quotation marks omitted). When the dis-
trict court oversteps its bounds to the prejudice of the defendant, a
violation of due process has occurred. Id. at 679.
7
Although Reep’s counsel did not object every time the district court
interjected a question or a comment, counsel repeatedly made clear dur-
ing sidebar discussions that he felt he was being treated unfairly by the
court. Cf. Fed. R. Evid. 614(c) (noting that an objection to interrogation
of witnesses by the court can be made at the time of questioning "or at
the next available opportunity when the jury is not present").
16 UNITED STATES v. SMITH
a. Cross-examination of Moore, Jr.
Reep first complains of the manner in which the district court inter-
vened in his counsel’s cross-examination of Moore, Jr. On several
occasions, the district court interrupted cross-examination—e.g., by
admonishing counsel that a question had been asked and answered.
We have carefully reviewed the transcript, and we find nothing
improper in the actions of the court. Counsel’s cross-examination of
Moore, Jr. was repetitive in the extreme, and the district court was
well within its discretion to attempt to curb counsel’s tendency to ask
the same question over and over.
b. Examination of Pharmacologist
Reep called a professor of pharmacology, Dr. William Cooke, as
an expert regarding the drugs Government witness Roberson was tak-
ing and their potential effect. After listing the psychoactive drugs
Roberson was taking, Dr. Cooke testified that taking the drugs in ther-
apeutic dosages could result in confusion, decreased reasoning capac-
ity, and short-term memory loss. After cross-examination by the
Government, the district court engaged in the following colloquy with
Dr. Cooke:
THE COURT: . . . [A]re these compounds used to treat
people suffering from bipolar disease?
THE WITNESS: They can be used for that purpose,
yes.
THE COURT: And when these particular drugs are
used, psychiatrists are trained to prescribe these drugs in the
appropriate dosage; is that correct?
THE WITNESS: Yes. From experience, that’s right.
THE COURT: And the psychiatrist not only prescribed
these drugs, but they are required to monitor these drugs to
be sure that they are having the effect that they prescribed
them for in the first place; is that correct?
UNITED STATES v. SMITH 17
THE WITNESS: That would be the ideal circumstance,
yes.
J.A. 2190. On redirect, Reep’s counsel established that monitoring of
the patient does not necessarily mean that the patient will not suffer
the cognitive effects described in Dr. Cooke’s direct testimony.
Reep complains that the questioning by the district court blunted
Dr. Cooke’s testimony by making the jury think that monitoring
would avoid any adverse effects on Roberson’s memory. To the
extent this is true, however, Reep’s counsel established on redirect
that memory loss could occur even with physician monitoring. Addi-
tionally, Roberson’s difficulties with his memory were evident from
his testimony for the Government, and were further illuminated by
counsel’s extensive cross-examination.
c. Cumulative Effect
Reep also maintains that even if the district court did not abuse its
discretion in any particular instance, he was prejudiced by the cumu-
lative effect of the interventions by the court. Any such cumulative
effect, however, was ameliorated by the instructions to the jury. In its
pre-trial instructions, the district court informed the jury,
[I]t is sometimes the duty of the Court to admonish or
warn an attorney who out of zeal for his or her cause does
something which is not in keeping with the rules of evidence
or procedure. If this should happen, do not permit this to
have any effect on your evaluation of the merits of any evi-
dence that comes before you.
Id. at 384. Additionally, during the jury charge, the court reminded
the jurors that
it is the duty of the Court to admonish an attorney who out
of zeal for his or her cause does something which the Court
believes is not in keeping with the Rules of Evidence or Pro-
cedure. You are . . . to draw absolutely no inference against
the side to whom an admonition of the Court may have been
addressed during the trial of this case.
18 UNITED STATES v. SMITH
Id. at 2373-74. Jurors are presumed to adhere to cautionary instruc-
tions issued by the district court. U.S. v. Abdullah, 162 F.3d 897, 904
(6th Cir. 1998).
4.
Reep’s counsel began presentation of Reep’s case on the afternoon
of the seventh day of trial. After counsel had presented several wit-
nesses, he informed the court that he had eight more witnesses; coun-
sel stated, "I don’t think there will be any problem finishing today."
J.A. 2093. After Reep’s counsel had presented five more witnesses,
he represented that he had three remaining; further discussion with the
court reduced this number to two. Counsel stated, "The last witness
I have is . . . Dr. Cooke." Id. at 2170. Following Dr. Cooke’s testi-
mony, however, counsel informed the court that he needed to "think
about" presenting "one or two" more witnesses before he was pre-
pared to rest. Id. at 2194. The court insisted that counsel decide
immediately whether he would present additional witnesses; after
counsel declined to do so, the court declared that Reep’s case was
rested. Reep appeals this ruling as an abuse of discretion, see U.S. v.
Janati, 374 F.3d 263, 273-74 (4th Cir. 2004), arguing that counsel
should have been allowed to consider the matter during the evening
recess and rest or present additional witnesses the following morning.8
We conclude that there was no abuse of discretion here. Reep’s
counsel repeatedly and unequivocally stated that he did not plan to
call any witnesses after Dr. Cooke. In light of these representations,
and given that the court day was not yet finished, it was not improper
for the district court to insist that Reep either present additional wit-
nesses at that time or rest his case. Reep’s complaint that the Govern-
ment was treated with more deference is unavailing. After the
Government completed its case in chief, the district court allowed the
Government to delay the formal act of resting its case to the following
8
Reep’s attorney challenges the $1,000 sanction imposed by the dis-
trict court after he continued to dispute the matter. This is not the proper
forum for such a challenge, however. See Rogers v. Natl. Union Fire Ins.
Co., 864 F.2d 557, 559-60 (7th Cir. 1988) (holding that an attorney who
is sanctioned must appeal in his own name in order to create appellate
jurisdiction over the sanctions order).
UNITED STATES v. SMITH 19
morning so that the Government could ensure that its exhibits were
in order. The Government made clear that it was willing to rest its
case that afternoon, however, and did not indicate a desire to consider
calling additional witnesses. Thus, Reep was not treated unfairly in
comparison to the treatment the Government received.
5.
During his closing argument, Reep’s counsel gave the jury four
definitions of reasonable doubt. During the fourth definition, the dis-
trict court interjected, saying, "I hate to interrupt you, but not even the
Court is permitted to define reasonable doubt in the Fourth Circuit for
the jury, so, respectfully, do not attempt to define it for them." J.A.
2277. The court then referred to counsel’s definition of reasonable
doubt while instructing the jury:
Now, ladies and gentlemen, let me say one more word
about reasonable doubt. You’ve heard the concept of rea-
sonable doubt. During the closing arguments [counsel for
Reep] attempted to define the word reasonable doubt. The
law for the Court is simple. The Court is not permitted to
attempt to define the word reasonable doubt. . . . And that
is because the courts have found that the definition is a self-
evident definition and there is no better way of explaining
the concept. All efforts to explain reasonable doubt simply
lead[ ] to more confusion. So you’re not bound to accept
[counsel’s] definitions of reasonable doubt. So not even the
Court is going to attempt to give you that definition. So
we’re telling you to rely on your reasonable understanding
of the concept of the word reasonable doubt. It’s a self-
evident definition.
Id. at 2338-39. Reep now argues that the district court abused its dis-
cretion in interrupting closing argument and in instructing the jury
that the argument was improper. See U.S. v. Patterson, 150 F.3d 382,
389 (4th Cir. 1998) (stating standard of review).
"It is well settled in this circuit that a district court should not
attempt to define the term ‘reasonable doubt’ in a jury instruction
absent a specific request for such a definition from the jury." U.S. v.
20 UNITED STATES v. SMITH
Oriakhi, 57 F.3d 1290, 1300 (4th Cir. 1995). A district court may also
restrict counsel from defining the phrase. Patterson, 150 F.3d at 389.
Here, the district court allowed counsel to define reasonable doubt
three times, prohibiting only the presentation of a fourth definition.
There was no abuse of discretion.
III.
Having concluded that Appellants’ convictions should be affirmed,
we now turn to their challenges to their sentences. Appellants argue
that under United States v. Booker, 125 S. Ct. 738 (2005), the district
court erred by imposing sentences that exceeded the maximum autho-
rized by the jury verdict alone. Because Appellants did not raise this
issue in the district court, our review is for plain error. See Fed. R.
Crim. P. 52(b); Olano, 507 U.S. at 731-32. To establish plain error,
Appellants must show that an error occurred, that the error was plain,
and that the error affected their substantial rights. Olano, 507 U.S. at
732. If they can make such a showing, correction of the error remains
within our discretion, which we "should not exercise . . . unless the
error seriously affects the fairness, integrity or public reputation of
judicial proceedings." Id. (alteration & internal quotation marks omit-
ted).
A. Moore’s Sentence
As we recently held in United States v. Hughes, 401 F.3d 540, 547-
49 (4th Cir. 2005), a district court commits plain error that affects a
defendant’s substantial rights when, operating under a pre-Booker
mandatory guidelines regime, it imposes a sentence that exceeds the
maximum guideline sentence authorized by the jury verdict alone. At
first glance, it would appear that Moore has satisfied this standard. At
sentencing, the district court found Moore responsible for 1,053,269
kilograms of marijuana, for a base offense level of 38. See U.S. Sen-
tencing Guidelines Manual § 2S1.1(a)(1) (2002) (directing that the
offense level for money laundering is the offense level for the offense
from which the laundered funds were derived); id. § 2D1.1(c)(1) (pro-
viding that the base offense level for 30,000 kilograms or more of
marijuana is 38); id. § 2D1.1, comment. (n.10) (drug equivalency
table). The district court also assessed an additional ten offense levels,
finding that Moore had a leadership role in the conspiracy, see
UNITED STATES v. SMITH 21
U.S.S.G. § 3B1.1(a), used a minor in the commission of the crime,
see U.S.S.G. § 3B1.4, possessed a firearm in connection with the
offense, see U.S.S.G. § 2D1.1(b)(1), and was convicted under 18
U.S.C.A. § 1956, see U.S.S.G. § 2S1.1(b)(2)(B). Moore’s total
offense level of 48, combined with his criminal history category of
III, yielded a guideline range of life imprisonment.9
In contrast, the special verdict returned by the jury—which
included specific findings concerning drug quantity as to some counts
—authorized a guideline range of 292-365 months. This sentencing
range corresponds to a base offense level of 34 (based on drug quan-
tity) plus the two-level enhancements for possession of a firearm and
conviction under § 1956 (neither of which, the parties agree, required
additional judicial fact finding), for a total offense level of 38, and
Moore’s criminal history category of III. Because the life sentence
imposed on Moore exceeds the maximum sentence authorized by the
facts found by the jury alone, it would appear that Moore’s Sixth
Amendment rights were violated. See Hughes, 401 F.3d at 547.
The Government maintains, however, that there is no Sixth
Amendment violation because the drug quantities charged in the
indictment correspond with a base offense level of 36. When the fire-
arm and § 1956 enhancements are added and combined with Moore’s
criminal history category, the resulting guideline range is 360 months
to life imprisonment. Thus, the Government argues, Moore’s life sen-
tence does not exceed the maximum authorized by the facts found by
the jury alone. See U.S. v. Evans, 416 F.3d 298, 300-01 (4th Cir.
2005).
We might find the Government’s argument more persuasive if the
district court had instructed the jury to determine Moore’s guilt as
charged in the indictment, or had at least directed the attention of the
jury to the amounts charged in the indictment. This did not occur,
however. Rather, in instructing the jury on the elements of the drug
offenses, the district court made no reference at all to drug quantity.
Moreover, when it instructed the jury regarding the quantities listed
on the special verdict form as to some counts, the district court did
not instruct the jury regarding the language of the indictment; it sim-
9
Moore does not challenge his criminal history category.
22 UNITED STATES v. SMITH
ply charged the jury that it was required to make findings beyond a
reasonable doubt as to the quantities listed in the special verdict form.
See J.A. 2349. These quantities corresponded to the various quantities
set forth in 21 U.S.C.A. § 841 (West 1999 & Supp. 2005), not to the
indictment. In light of these facts, we cannot accept the Government’s
argument that Moore’s convictions alone are sufficient to establish
the absence of a Sixth Amendment violation.
Nevertheless, we decline, pursuant to Johnson v. United States, 520
U.S. 461 (1997), and United States v. Promise, 255 F.3d 150 (4th Cir.
2001) (en banc), to notice the plain error established by Moore. In
Johnson, the Supreme Court considered on plain error review a per-
jury conviction in which the element of materiality was found by a
judge rather than by the jury. See Johnson, 520 U.S. at 463. The Court
ruled that the error was plain and assumed that it affected substantial
rights. See id. at 468-69. The Court declined to notice the error, how-
ever, because the evidence concerning the omitted element was "over-
whelming" and "essentially uncontroverted." Id. at 470 (internal
quotation marks omitted). The Court reasoned that, under the circum-
stances, noticing the error would "seriously affect[ ] the fairness,
integrity or public reputation of judicial proceedings" because
"[r]eversal for error, regardless of its effect on the judgment, encour-
ages litigants to abuse the judicial process and bestirs the public to
ridicule it." Id. (internal quotation marks omitted).
In Promise, we refused to vacate the defendant’s sentence on plain
error review despite the fact that the use of judge-made drug-quantity
findings by the district court had created a Sixth Amendment viola-
tion. See Promise, 255 F.3d at 161-64. Following Johnson as well as
similar circuit precedent, we reasoned that "[t]here simply can be no
doubt that had the indictment included the [requisite drug quantity],
the jury would have found Promise guilty beyond a reasonable
doubt." Id. at 164.
The reasoning of Johnson and Promise applies with equal force
here. Even though the Sixth Amendment required that the jury, rather
than the trial judge, make the drug quantity findings that increased
Moore’s sentence, the evidence concerning drug quantity was over-
whelming and uncontroverted, even at sentencing. And, while Moore
challenged his guilt of the charged offenses, he did not maintain any
UNITED STATES v. SMITH 23
challenge to the evidence concerning the quantity of drugs involved
in the transactions to which various witnesses testified. There can be
no question that the jury, having found that the offenses were commit-
ted, would have also determined that the offenses involved the spe-
cific amounts charged in the indictment. Cf. United States v. Cotton,
535 U.S. 625, 632-34 (2002) (declining to notice plain Fifth Amend-
ment error on the basis that evidence concerning drug quantity was
"overwhelming and essentially uncontroverted" (internal quotation
marks omitted)). But see United States v. Davis, 407 F.3d 162, 164
& n.3 (3d Cir. 2005) (en banc) (suggesting, without discussing John-
son, that Sixth Amendment Booker violation should be noticed on
plain error review even if evidence supporting judge-made findings
was overwhelming and essentially uncontroverted); United States v.
Oliver, 397 F.3d 369, 380 n.3 (6th Cir. 2005) (declining to consider
whether error should not be noticed on the basis of overwhelming and
uncontroverted evidence; distinguishing Cotton). We therefore affirm
Moore’s sentence.10
10
The dissent asserts that "[e]ssentially, Hughes and its progeny hold
that all . . . Booker Sixth Amendment errors require a remand in those
instances where it is unclear what sentence the district judge would have
imposed had the guidelines been advisory." Post, at 33. This is incorrect.
Although we indicated in Hughes that we might not notice a Sixth
Amendment error if the record clearly demonstrated that the district court
would have imposed the same sentence had it treated the guidelines as
advisory, see Hughes, 401 F.3d at 555, this court has never held—in
Hughes or any subsequent case—that this would be the only circum-
stance under which we might decline to notice such an error.
Similarly unavailing is the dissent’s observation that no Fourth Circuit
decision noticing a plain Sixth Amendment Booker error has explicitly
considered whether the evidence was overwhelming and essentially
uncontroverted. We simply cannot take silence as an indication that they
decided such an inquiry was improper. Even if that is one possible infer-
ence, it is equally plausible that the issue was not presented or that the
evidence was not overwhelming or uncontroverted. Nor is it relevant that
in United States v. Cardwell, 433 F.3d 378, 392-93 (4th Cir. 2005), the
panel noticed a plain Sixth Amendment Booker error without determin-
ing whether the "overwhelming" and "essentially uncontroverted" nature
of the evidence warranted refusing to notice the error. The Cardwell
panel eschewed this inquiry—despite its strength "both in the abstract
and on the facts of this case"— only because the Government "expressly
abandoned" the argument. Id. at 392 n.7.
24 UNITED STATES v. SMITH
B. Smith’s Sentence
Smith argues that he was sentenced in violation of the Sixth
Amendment because the jury was not required to make findings
regarding the extent of his involvement in the conspiracy. He cor-
rectly maintains that the Fourth Circuit has held that a defendant
charged with conspiracy is entitled under the Sixth Amendment to a
jury determination of the quantity of drugs attributable to him as an
individual, rather than the quantity for which the conspiracy as a
whole was responsible. See U.S. v. Collins, 415 F.3d 304, 311-14 (4th
Cir. 2005).
However, because Smith was sentenced as a career offender, his
offense level was not based on the quantity of drugs attributable to
him, but rather on the maximum sentence for the offense of convic-
tion. See U.S.S.G. § 4B1.1(b). As Smith acknowledges, the jury prop-
erly made a finding as to drug quantity with respect to Count 31 of
the indictment, which charged him with possessing with the intent to
distribute ten kilograms of cocaine. Because the maximum sentence
for this offense is life imprisonment, see 21 U.S.C.A. § 841(b)(1)(A),
the corresponding offense level is 37. This, combined with the man-
datory Criminal History Category of VI, produced a guideline range
of 360-life. The district court sentenced Smith to 360 months. There-
fore, because Smith’s sentence did not exceed the maximum autho-
rized based on the facts charged in the indictment and found by the
jury beyond a reasonable doubt, his Sixth Amendment rights were not
violated.
Smith also challenges his sentence under Booker. However,
Smith’s entire argument consists of the following sentence: "Smith’s
sentence exceeded the maximum sentence then authorized by the
facts found by the jury alone, in violation of Booker." Supp. Br. of
Appellant 3 (Aug. 30, 2005). This argument does not comply with
Rule 28(a)(9)(A) of the Federal Rules of Appellate Procedure, which
requires the argument section of an appellant’s brief to contain "ap-
pellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies."
Thus, we deem Smith to have abandoned this claim. See Edwards v.
City of Goldsboro, 178 F.3d 231, 241 n. 6 (4th Cir. 1999).
UNITED STATES v. SMITH 25
Even if properly made, Smith’s claim would fail. In United States
v. Collins, 412 F.3d 515, 522-23 (4th Cir. 2005), we held that a career
offender sentence does not violate the Sixth Amendment when it is
clear from the face of the record that the qualifying convictions were
felonies that were crimes of violence or controlled substance offenses.
Here, Smith had two convictions for aggravated assault and one for
selling narcotics. Smith does not dispute that the district court did not
need to make additional findings in order to determine that these were
qualifying convictions under the career offender guideline. Accord-
ingly, there was no Sixth Amendment violation in sentencing Smith
as a career offender.
C. Reep’s Sentence
Reep, like Smith, was sentenced as a career offender. He argues
that the district court erred in sentencing him pursuant to a mandatory
guidelines scheme. This was, as we have previously held, plain error.
U.S. v. White, 405 F.3d 208, 216-17 (4th Cir.), cert. denied, 74
U.S.L.W. 3302 (U.S. Nov. 14, 2005) (No. 05-6981). However, Reep
must also demonstrate prejudice by showing "that the treatment of the
guidelines as mandatory caused the district court to impose a longer
sentence than it otherwise would have." Id. at 224. Reep cannot do
so. At sentencing, the district court commented that the sentence of
360 months "is appropriate[ ] [g]iven your background and the nature
of the offense." J.A. 2514. This statement certainly does not support
a claim that the district court would have imposed a lesser sentence
in the exercise of its discretion. We therefore affirm Reep’s sentence.
IV.
For the reasons set forth above, we affirm Appellants’ convictions
and sentences.
AFFIRMED
DEVER, District Judge, concurring in part and dissenting in part:
I respectfully dissent from the failure to notice the error in defen-
dant Moore’s life sentence, vacate Moore’s sentence, and remand for
26 UNITED STATES v. SMITH
resentencing. See Majority Opinion at 20-22. In all other respects, I
concur in the majority opinion.
I.
In United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005), the
Fourth Circuit set forth its approach to analyzing Booker Sixth
Amendment violations raised for the first time on direct appeal. This
case is the first post-Hughes case in which the Fourth Circuit has
applied Hughes, held that a Booker Sixth Amendment violation took
place, recognized that the record fails to reflect what Moore’s sen-
tence would have been under an advisory scheme, yet declined to
exercise its discretion to notice the error, vacate the illegal sentence,
and remand for resentencing. Although declining to notice a Booker
Sixth Amendment violation is not uncommon in those circuit courts
that have adopted a different approach to analyzing plain-error issues
arising from such Booker Sixth Amendment violations raised for the
first time on direct appeal, the result in this case is materially incon-
sistent with Hughes and its progeny.
In Hughes, the Fourth Circuit set forth its approach to analyzing
plain error as to Booker Sixth Amendment violations raised for the
first time on direct appeal. The court held that such Booker Sixth
Amendment violations meet the three-part plain-error test under cases
such as United States v. Olano, 507 U.S. 725, 731-34 (1993) ((1) Did
an error occur? (2) Was the error "plain"? and (3) Did the error actu-
ally affect the outcome of the proceedings?). See Hughes, 401 F.3d
at 547-55. Once those three parts are satisfied, the Hughes court dis-
cussed the discretionary fourth part of plain-error analysis and stated:
[I]t remains within our discretion to determine whether the
district court error warrants reversal. Our discretion is
appropriately exercised only when failure to do so would
result in a miscarriage of justice, such as when a defendant
is actually innocent or the error seriously affects the fair-
ness, integrity or public reputation of judicial proceedings.
Hughes, 401 F.3d at 555 (quotation omitted). In exercising that dis-
cretion in Hughes, the panel noted that because of the "plain and prej-
udicial Sixth Amendment error, Hughes was sentenced to a term of
UNITED STATES v. SMITH 27
imprisonment nearly four times as long as the maximum sentence
authorized by the jury verdict. There can be no doubt that failure to
notice such an error would seriously affect the fairness, integrity, or
public reputation of judicial proceedings." Id. In reaching this conclu-
sion, the panel found:
[The record did] not provide any indication of what sentence
the district court would have imposed had it exercised its
discretion under § 3553(a), treating the guidelines as merely
advisory. Thus, although it is certainly possible that Hughes
will receive the same sentence on remand, there is nothing
in the record to compel such a conclusion. This possibility
is not enough to dissuade us from noticing the error.
Id. at 556 (citations and footnotes omitted).1
1
While this passage in Hughes refers to the importance at the fourth
step of the plain-error analysis of determining whether the trial judge
indicated what the sentence would have been under an advisory scheme,
Hughes and its progeny make clear that the two passages quoted above
provide the governing analysis for addressing Booker Sixth Amendment
error. Of course, "Booker Sixth Amendment error" is distinct from the
"statutory Booker error" analyzed extensively in United States v. White,
405 F.3d 208 (4th Cir. 2005). A statutory Booker error arises when the
trial judge errs by treating the guidelines as mandatory. Id. at 215-25. In
White and Hughes, the Fourth Circuit made clear that a "statutory Booker
error" was distinct from a Booker Sixth Amendment error, which arises
when a trial judge increases a sentence based on facts not found by a jury
(or in a guilty plea case, a fact not admitted to by the defendant). See
White, 405 F.3d at 216 n.5; Hughes, 401 F.3d at 552. In Hughes, the
court explained that "the act of mistakenly treating the guidelines as
mandatory is not part of the Sixth Amendment error before us, despite
the fact that the former mandatory nature of the guidelines set the stage
for the constitutional violation in Booker." Id. at 553; see also id. at 551
n.8 ("This case does not present and we do not address, the question of
whether a defendant suffers prejudice because a sentencing court fails to
treat the guidelines as advisory in determining the sentence.") Thus, this
court’s analysis at the fourth step of its plain-error review in White to
statutory Booker error does not suggest that this court applies the same
plain-error analysis to a Booker Sixth Amendment violation.
Indeed, two aspects of White compel the opposite conclusion. First, the
White majority explained that in Hughes the court exercised its discretion
28 UNITED STATES v. SMITH
The Fourth Circuit’s approach in Hughes is consistent with the
approach taken by the Third Circuit and the Sixth Circuit. See United
States v. Davis, 407 F.3d 162, 164-65 (3d Cir. 2005) (en banc);
United States v. Oliver, 397 F.3d 369, 380 (6th Cir. 2005). In contrast,
the D.C., Second, Seventh, and Ninth Circuits have adopted a "limited
remand" approach in order to help the appellate court assess the third
step of plain-error review. See United States v. Coles, 403 F.3d 764,
765 (D.C. Cir. 2005) (per curiam); United States v. Williams, 399
F.3d 450, 459-60 (2d Cir. 2005); United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005); United States v. Ameline, 409 F.3d 1073,
1084 (9th Cir. 2005) (en banc). Also in contrast, the First, Fifth,
Eighth, Tenth, and Eleventh Circuits require a defendant raising a
Booker Sixth Amendment violation for the first time on direct appeal
to make a specific showing of prejudice to satisfy the third step of
plain-error review. See United States v. Antonakopoulos, 399 F.3d 68,
75 (1st Cir. 2005); United States v. Mares, 402 F.3d 511, 521 (5th
Cir. 2005); United States v. Pirani, 406 F.3d 543, 547 (8th Cir. 2005)
(en banc); United States v. Dazey, 403 F.3d 1147, 1173-79 (10th Cir.
2005); United States v. Rodriguez, 398 F.3d 1291, 1302 (11th Cir.
2005); cf. Hughes, 401 F.3d at 549-52 (specifically rejecting the
approach to the third step of the plain-error inquiry adopted by the
Eleventh Circuit and declining to address the approach taken by the
Second and Seventh Circuits).
to notice the Booker Sixth Amendment violation at the fourth step of the
plain-error analysis due to the prejudicial effect arising from the substan-
tial increase in Hughes’ sentence. White, 405 F.3d at 224 n.11. Second,
Judge Duncan’s partial dissent in White aptly described Hughes as "de-
cid[ing] that one segment of the total class of defendants authorized to
seek resentencing can meet the stringent requirement of showing plain
error and they are therefore entitled to resentencing." Id. at 226 (Duncan,
J., concurring in part and dissenting in part). The segment of the total
class of defendants to which Judge Duncan referred was "defendants
whose maximum sentences as authorized by the jury were less than that
imposed by the judge based on facts found pursuant to the mandatory
sentencing regime . . . ." Id. at 226; see also id. at 227 ("Hughes con-
cluded that one of the group of defendants sentenced under the now
invalid § 3553(b)(1) must be resentenced . . . .") (emphasis added).
UNITED STATES v. SMITH 29
II.
A.
Since Hughes, every panel publishing a Fourth Circuit opinion
applying Hughes to a Booker Sixth Amendment violation raised for
the first time on direct appeal has exercised its discretion at the fourth
step of the plain-error analysis to notice the error, vacate the sentence,
and remand for resentencing. See United States v. Uzenski, 434 F.3d
690, 711-12 (4th Cir. 2006); United States v. Cardwell, 433 F.3d 378,
391-93 (4th Cir. 2005); United States v. Ebersole, 411 F.3d 517, 534-
35 (4th Cir. 2005); United States v. Gray, 405 F.3d 227, 243-44 (4th
Cir. 2005); United States v. Ruhbayan, 406 F.3d 292, 302 (4th Cir.
2005); United States v. Washington, 398 F.3d 306, 312-13 (4th Cir.
2005).2 In all of these cases, the record did not reflect what sentence
the district judge would have imposed absent the Booker Sixth
Amendment violation.
In this case, Moore received a life sentence after a Booker Sixth
Amendment violation. Absent the Booker violation, Moore would
2
Although this footnote does not include a string cite to all Fourth Cir-
cuit unpublished opinions that have applied Hughes and its progeny, the
same appears to be true with respect to unpublished opinions. For exam-
ple, four recent unpublished opinions vacate and remand sentences with
almost no discussion after finding Booker Sixth Amendment violations
raised for the first time on direct appeal. See United States v. Fields, No.
03-4645, slip op. at 2-3 (4th Cir. Feb. 9, 2006) (unpublished); United
States v. Perez-Mendez, No. 04-4151, slip. op. at 5-6 (4th Cir. Jan. 3,
2006) (unpublished); United States v. Burwell, No. 04-4200, slip. op. at
7-8 (4th Cir. Jan. 3, 2006) (unpublished); United States v. McCullum,
No. 05-4078, slip. op. at 3 (4th Cir. Jan. 3, 2006) (unpublished). One
Fourth Circuit panel, in an unpublished opinion, found that no Sixth
Amendment violation took place, but then stated in dicta that even if it
had found a Sixth Amendment violation it would have declined to
remand based on United States v. Cotton, 535 U.S. 625 (2002). See
United States v. Shivers, 146 F. App’x 609, 611 (4th Cir. Aug. 22, 2005)
(unpublished). This dicta in Shivers, however, stands in contrast to the
dozens upon dozens of cases that have vacated sentences after finding
Booker Sixth Amendment violations and an absence of any indication of
what the sentence would have been under an advisory scheme.
30 UNITED STATES v. SMITH
have faced a sentencing range of 292 to 365 months, based upon an
offense level of 38 and a criminal history category of III. See Majority
Opinion at 21. At Moore’s sentencing, the district judge made certain
findings of fact concerning drug quantities, Moore’s leadership role,
and his use of a minor, raising his offense level to 48. See Majority
Opinion at 20-21; JA 2536-80 (entire transcript of sentencing hear-
ing); JA 2554 (ultimate finding that the total offense level is 48 and
criminal history category is III).
After determining the offense level to be 48 and the criminal his-
tory category to be III, the district judge stated that "the guideline
range from the sentencing table is life." JA 2554. Before giving the
defendant an opportunity to address the court, the court recognized
the AUSA, who stated: "Obviously, the guideline range, if you want
to call it a range in this case, is a mandatory life sentence, and we
don’t see any reason whatsoever to depart from that." JA 2565. The
district judge then addressed Moore’s counsel and stated: "Even
though Mr. Moore gets a chance to argue, you also get a chance to
argue. I don’t know how much good it will do him, due to the fact
the Court is bound by the guidelines." JA 2565. In response, Moore’s
counsel stated:
It’s the guidelines. There’s not much I can say in this case.
The guidelines say life and therefore, it’s life. I understand
that. There’s not much I can say. I can’t point to much miti-
gation, extenuation or anything else at this stage of the
game, even if I had it because the guidelines say life.
JA 2565. The district judge then responded: "Also, even if the Court
believes that a lesser time was appropriate, the Court doesn’t have any
options." JA 2566. Moore’s counsel responded, "That’s the way I
understand the law, Judge." JA 2566. The district judge then recog-
nized Moore to make a statement. Moore made a sworn statement. JA
2566-75. Thereafter, the district judge imposed a life sentence. JA
2575-76, 2581-82.
B.
At the fourth step of the plain-error analysis in this case, the major-
ity declines to notice error, vacate the sentence, and remand for resen-
UNITED STATES v. SMITH 31
tencing because "evidence concerning drug quantity was
overwhelming and uncontroverted." Majority Opinion at 22. The
majority’s statement concerning drug quantities is undeniably correct,
particularly in light of the district judge’s discussion concerning drug
quantities at the sentencing hearing. See JA 2545-46. Nevertheless,
the jury did not make these findings, or the other findings that raised
Moore’s offense level to 48, and Justice Stevens’ opinion in Booker
teaches that under a mandatory scheme "[a]ny fact . . . which is neces-
sary to support a sentence exceeding the maximum authorized by the
facts established by . . . a jury verdict must be . . . proved to a jury
beyond a reasonable doubt." United States v. Booker, 125 S. Ct. 738,
756 (2005). Moreover, and critically, as in Hughes and its progeny,
"[t]he record does not provide any indication of what sentence the dis-
trict court would have imposed had it exercised its discretion under
[section] 3553(a), treating the guidelines as merely advisory."
Hughes, 401 F.3d at 556.
In declining to notice the error, vacate the sentence, and remand,
the majority cites Johnson v. United States, 520 U.S. 461 (1997),
United States v. Promise, 255 F.3d 150 (4th Cir, 2001) (en banc), and
United States v. Cotton, 535 U.S. 625, 628-33 (2002). All three of
these cases were decided pre-Booker and pre-Hughes. In Johnson, the
Supreme Court found that the district court committed error by failing
to submit the issue of materiality to the jury in a perjury prosecution,
but nevertheless declined to notice the error and vacate the conviction
under plain-error review. Johnson, 520 U.S. at 467-70. The Court
found that the evidence supporting the materiality element was over-
whelming and "essentially uncontroverted" at trial and on appeal. Id.
at 470. In concluding that the error did not "seriously affect[ ] the fair-
ness, integrity or public reputation of judicial proceedings," the Court
stated: "Indeed, it would be the reversal of a conviction such as this
which would have that effect." Id. (quotation omitted) (emphasis
added).
In Promise, the Fourth Circuit held that a defendant’s sentence was
erroneous because the indictment charging him did not allege the spe-
cific threshold drug quantities necessary to expose the defendant to a
higher maximum sentence under the governing statute and because no
quantity determination was made by the jury. Promise, 255 F.3d at
152. Under plain-error review, the court declined to notice the error
32 UNITED STATES v. SMITH
and remand. It concluded, based on its review of the evidence pre-
sented at trial, that "[t]here simply can be no doubt that had the indict-
ment included the specific threshold quantity of 50 grams of cocaine
base, the jury would have found Promise guilty beyond a reasonable
doubt." Id. at 164.
In Cotton, the Supreme Court upheld a defendant’s sentence based
upon the statutory drug-quantity sentencing enhancements in 21
U.S.C. § 841(b)(1)(A) even though such quantities were not alleged
in the indictment. Id. The enhancement increased the maximum possi-
ble sentence from 20 years to life. Id. at 628. Two defendants
received 30-year sentences and the others received life sentences. Id.Even assuming that the defendants established plain error arising
from the omission of drug quantity in the indictment, the Court in
Cotton declined to notice the error at the fourth step because the evi-
dence at trial that the conspiracy involved at least 50 grams of cocaine
base was "overwhelming" and "essentially uncontroverted." Id. at
632-33. The effect of the Court’s application of plain-error doctrine
in Cotton was to obviate the need for a new indictment and a new
trial. See id. at 634.
In this case, unlike the defendants in Cotton or Promise, Moore can
receive the exact same sentence on remand without having to be re-
indicted and re-tried. Moore’s superceding indictment charges drug
quantities. See JA 154-85. Further, the jury answered special interrog-
atories about certain drug quantities. See JA 2411-20. Although these
quantities were not the quantities listed in the indictment, they did
correspond to the "specific threshold drug quantities" codified in 21
U.S.C. § 841(b). See Majority Opinion at 21-22. Likewise, unlike
Johnson, there was no error implicating the validity of Moore’s con-
viction, thereby requiring a new trial. Accordingly, Cotton, Promise,
and Johnson do not control, and the rationale underlying Cotton,
Promise, and Johnson does not apply. Rather, if the error in Moore’s
sentence is noticed and the case remanded, the district court can go
back and make the same, now-permissible, findings of fact, treat the
guidelines as advisory pursuant to Booker and Hughes, and resentence
Moore. On remand, the district court’s sentencing discretion would
include, but not require, a life sentence.
UNITED STATES v. SMITH 33
Even though Johnson, Promise, and Cotton are distinguishable
from the facts in this case, the more significant point is that Hughes
and its progeny foreclose the majority’s analysis at the fourth step of
plain-error review for Booker Sixth Amendment errors. Essentially,
Hughes and its progeny hold that all such Booker Sixth Amendment
errors require a remand in those instances where it is unclear what
sentence the district judge would have imposed had the guidelines
been advisory. Here, the majority departs from this Fourth Circuit
precedent by applying Johnson, Promise, and Cotton3 to a Sixth
Amendment Booker violation raised for the first time on direct appeal
where the judge-found facts prejudiced the defendant and the record
gives no indication of what sentence the district court would have
imposed under an advisory scheme.4 Indeed, until this opinion, it
3
The Fourth Circuit did apply Cotton at the fourth step of plain-error
analysis in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). In Harp,
however, the court confronted a situation in which the elements of a
career offender designation were not alleged in the indictment. Harp, 406
F.3d at 247. Again, because there is no defect in Moore’s indictment,
Harp’s application of Cotton is not implicated in this case.
4
A Cotton-type analysis of the evidence is not uncommon at the third
or fourth step of plain-error review of the Sixth Amendment Booker vio-
lations raised for the first time on direct review in the First, Fifth, Eighth,
Tenth, and Eleventh Circuits. See, e.g., Pirani, 406 F.3d at 554; Dazey,
403 F.3d at 1177. By contrast, the Sixth Circuit has expressly rejected
applying Cotton to Booker Sixth Amendment violations raised for the
first time on direct appeal. See Oliver, 397 F.3d at 380 n.3. Likewise, the
Third Circuit’s unanimous en banc decision in Davis implicitly rejected
applying Cotton to Booker Sixth Amendment violations raised for the
first time on direct appeal. See Davis, 407 F.3d at 164-65.
In Oliver, the Sixth Circuit cogently explained why the type of plain-
error analysis employed in Cotton is not necessarily applicable in the
context of Booker Sixth Amendment violations. The court explained that
the "outcome in Cotton was premised on the determination that an
Apprendi violation could not be remedied through re-sentencing." Oliver,
397 F.3d at 380 n.3. The court further explained that the remedial opin-
ion in Booker obviated this concern by granting district judges the discre-
tion to make the same findings under the now advisory system. Id.Finally, it noted that an appellate court weighing whether evidence was
"overwhelming and essentially uncontroverted," cannot answer the ques-
tion of what sentence a district judge would have given with the same
34 UNITED STATES v. SMITH
appeared that the Fourth Circuit would rely on Hughes and its prog-
eny to notice error and remand every sentence infected by such a
Booker Sixth Amendment violation.
C.
The majority states that it is "unavailing" that no Fourth Circuit
panel has paused at the fourth step of the plain-error analysis to con-
sider whether the evidence was "overwhelming" and "essentially
uncontroverted." Majority Opinion at 23 n.10. The majority then
states that it "cannot take silence as an indication that [all of the
Fourth Circuit panels applying Hughes and its progeny to Booker
Sixth Amendment violations raised for the first time on direct appeal]
decided such an inquiry was improper. Even if that is one possible
inference, it is equally plausible that the issue was not presented or
that the evidence was not overwhelming or uncontroverted." Id.The majority’s observation about the silence of all Fourth Circuit
panels calls to mind the Sherlock Holmes mystery Silver Blaze.
Arthur Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes
335 (1927). In Silver Blaze, Sherlock Holmes was investigating the
theft of an expensive race horse named Silver Blaze from a stable and
the death of Silver Blaze’s trainer. Another investigator asked Holmes
if there was any particular aspect of the crime that was worthy of
attention. Id. at 347. Holmes replied in the affirmative, noting "the
curious incident of the dog in the night-time." Id. The investigator
said to Holmes, "The dog did nothing in the night-time." Id. Holmes
responded, "That was the curious incident." Id. Holmes then pointed
out that the failure of the watch dog to bark when Silver Blaze was
stolen showed that the watch dog knew the thief. Id. at 349. This fact
was compelling, considerably reduced the number of suspects, and
eventually solved the case. Id.
evidence under an advisory scheme and, as such, Cotton-type analysis at
the appellate level "usurp[s] the discretionary power granted to the dis-
trict courts by Booker" by assuming that the same sentence would have
been imposed. Id. Citing Oliver, the en banc Third Circuit unanimously
came to the same conclusion in Davis. See Davis, 407 F.3d at 165.
UNITED STATES v. SMITH 35
As in Silver Blaze, the failure of any Fourth Circuit panel applying
Hughes and its progeny to "bark" at the fourth step of the plain-error
analysis is compelling. This deafening silence confirms Judge Dun-
can’s observation in White that Hughes and its progeny applied to "a
total class of defendants." White, 405 F.3d at 226 (Duncan J., concur-
ring in part and dissenting in part).
If the Fourth Circuit’s silence in its post-Hughes progeny (both
published and unpublished) were not enough, a close review of four
published cases — Uzenski, Cardwell, Ebersole, and Ruhbayan —
demonstrates how Hughes has been interpreted to preclude the major-
ity’s analysis. In all of these cases, the panels cited Hughes, noted that
the record did not reflect what sentence the district judge would have
imposed absent the Booker Sixth Amendment violation, and
remanded, regardless of whether the evidence relating to judge-found
facts was "overwhelming" and "essentially uncontroverted."
In Uzenski, 434 F.3d at 694, the defendant was convicted of four
counts related to manufacturing and possessing an unregistered fire-
arm (to wit, pipe bombs) and a fifth count of obstruction of justice.
At sentencing, the district judge found "abuse of position of trust or
use of special skill" under section 3B1.3 of the United States Sentenc-
ing Guidelines and thereby increased the defendant’s sentence from
a range of 41-53 months to an actual sentence of 60 months. Id. at
711. The panel described the defendant as a detective for the Winter-
ville Police Department who had experience with explosives. Id. at
694-95. The defendant built two pipe bombs. He planted one of them
on the main highway leading into the town of Winterville, North Car-
olina. He then "discovered" the pipe bomb while on patrol, used his
police radio to call for help, and was designated the case agent. A
variety of law enforcement personnel responded to the scene and dis-
armed the bomb. Law enforcement personnel then searched the area
thoroughly and turned evidence over to the defendant in his capacity
as case agent. That evening, the defendant returned to the scene and
planted another pipe bomb three feet from the site of where he
"found" the first pipe bomb. The next day, along with other law
enforcement personnel, the defendant returned to the location to
investigate the "first" pipe bomb and law enforcement personnel dis-
covered the second pipe bomb. Again, the highway was closed, and
the second pipe bomb was disarmed. Id. at 694-95. After the investi-
36 UNITED STATES v. SMITH
gation focused on the defendant, the defendant repeatedly denied any
involvement with building the pipe bombs or planting them on the
highway. Id. at 697-98.
Under the majority’s analysis, the fourth step of plain-error analy-
sis now requires each panel to ask whether there is any "question that
the jury, having found that the offenses were committed, would have
also determined that the offenses involved [the judge-found fact that
increased the sentencing range.]" Majority Opinion at 23. In my view,
if the jury in Uzenski were asked whether Detective Uzenski "abused
a position of public trust . . . in a manner that significantly facilitated
the commission or concealment of the offense," then the jury would
have answered that question yes. That, however, is not what the Uzen-
ski panel did. Instead, the panel noticed the error at the fourth step,
and remanded the case to the district judge who found the fact con-
cerning abuse of a position of public trust and imposed the sentence.
Similarly, in Cardwell, the two defendants each received a judge-
found four-level enhancement on their "murder-for-hire convictions
based on [the district court’s] finding that the conspiracy and solicita-
tion offenses involved the offer or the receipt of anything of pecuni-
ary value for undertaking the murder." Cardwell, 433 F.3d at 392(quotation omitted). Without the judge-found fact, defendant Hin-
son’s sentencing range would have been 210-262 months. With this
judge-found fact, his range increased and the court sentenced Hinson
to 293 months. Id. As to defendant Cardwell, without this judge-
found fact, Cardwell’s sentencing range would have been 78-97
months. With the judge-found fact, Cardwell’s range increased and
the court sentenced Cardwell to 131 months. Id. The panel analyzed
the fourth part of the plain-error analysis for the defendants’ sen-
tences, noticed the errors, and remanded for resentencing. Id. at 392-
93.
The Cardwell panel noted that the government initially argued that
any error should not be noticed because the evidence concerning the
enhancements was "overwhelming" and "essentially uncontroverted,"
but "expressly abandoned this position at oral argument and in sup-
plemental briefing." Id. at 392 n.7. As the government’s supplemental
filing in that case suggests, the government abandoned this argument
not based on the weight of the evidence relating to the judge-found
UNITED STATES v. SMITH 37
facts, but rather because the United States Department of Justice
believes that Hughes mandates that a sentence be vacated and
remanded if infected with Booker Sixth Amendment error and there
is no indication of what sentence the district judge would have
imposed and under an advisory system. See Gov. Supp. Citation of
Authority 1 ("In United States v. Hughes . . . the Court ruled that a
mandatory guidelines sentence that was enhanced by judicial fact-
finding in violation of United States v. Booker . . . requires vacation
of the sentence and a remand for resentencing.") (emphasis added).
In Ebersole, the defendant was convicted of 25 counts of wire
fraud and two counts of presenting false claims to the government.
Ebersole, 411 F.3d at 520. "Without the various enhancements to the
offense level — each of which was based upon facts found by the dis-
trict court, not by the jury — the applicable sentencing range would
have been zero to six months of imprisonment." Id. at 534.
As for the fourth prong of the plain-error analysis, the Ebersole
panel applied Hughes and its progeny and stated:
Finally, to affirm Ebersole’s sentence despite the error
would seriously affect the fairness, integrity, or public repu-
tation of the judicial proceedings. In the wake of Booker, as
we have recognized, the Guidelines are to be treated as advi-
sory, rather than mandatory, and sentences that fall within
the statutorily prescribed range are reviewable only for rea-
sonableness. Hughes, 401 F.3d at 546 (citing Booker, 125
S.Ct. at 765-68). The record before us does not indicate
what sentence the court would have imposed on Ebersole
had its exercised its discretion under 18 U.S.C. § 3553(a)
and treated the Guidelines as merely advisory; although it is
possible that Ebersole will receive the same sentence on
remand, "[t]his possibility is not enough to dissuade us from
noticing the error." Id. at 556. We therefore exercise our dis-
cretion to notice the error, vacate Ebersole’s sentence, and
remand for resentencing consistent with Booker and its
progeny.
Id. at 535.
38 UNITED STATES v. SMITH
Finally, in Ruhbayan, the panel analyzed a Booker Sixth Amend-
ment error and a record devoid of what sentence the district judge
would have imposed absent the error. Ruhbayan, 406 F.3d at 302. The
panel stated that, under such circumstances, it was "obliged to exer-
cise" its discretion to notice the error, vacate the sentence, and remand
for resentencing. Id. The sentencing variance based on the Booker
Sixth Amendment error in Ruhbayan is similar to the variance faced
by Moore. In Ruhbayan, the Booker Sixth Amendment violation led
the district court to impose a life sentence — "a total term of impris-
onment greater than that authorized by the jury verdict, seriously
affecting ‘the fairness, integrity or public reputation of the judicial
proceedings.’" Id. (quoting Olano, 507 U.S. at 732).5 Absent the
judge-found facts in Ruhbayan, the defendant’s maximum sentence
under the guidelines would have been 262 months. See id. at 301 n.9.
III.
Given that the district judge, Moore’s counsel, and the AUSA all
agreed that life was mandatory in light of the findings and, critically,
that the district judge never indicated that he believed life in prison
was appropriate for Moore even under a non-mandatory system, this
case is materially indistinguishable from Hughes and its progeny. In
fact, in reviewing Hughes and its progeny (both published and unpub-
lished), it appears that countless Fourth Circuit panels could have
paused at the fourth step of the plain-error analysis, cited Johnson,
Promise, or Cotton, asked what the jury would have determined as to
the judge-found fact, and held that the evidence associated with a
given judge-found fact was "overwhelming" and "essentially uncontro-
verted."6 The panels did not, however, apparently due to the Sixth
5
The district judge departed upward from the guidelines in imposing
a life sentence, but the Fourth Circuit concluded that this upward depar-
ture was premised on the district judge’s factual finding relating to the
defendant’s role in the offense. Ruhbayan, 406 F.3d at 302.
6
This newly announced method of asking panels of this court at the
fourth step of plain-error analysis to step in the shoes of a jury and pre-
dict what the jury would have found as to a given fact resulting in an
enhancement and then predict the effect of the enhancement on the sen-
tence raises other issues. For example, the vast majority of criminal cases
are resolved through guilty pleas. Before today, in cases involving guilty
UNITED STATES v. SMITH 39
Amendment principles articulated in Booker, the fourth step of the
plain-error analysis applied in Hughes and its progeny, and principles
of stare decisis. Cf. United States v. Prince-Oyibo, 320 F.3d 494, 498
(4th Cir. 2003) (panels of this court cannot overrule, explicitly or
pleas, Booker Sixth Amendment error, and a record devoid of what sen-
tence the district judge would have imposed, this court held that "a sen-
tence that was imposed under the pre-Booker mandatory sentencing
scheme and was enhanced based on facts found by the court . . . [and]
not admitted to by the defendant [ ] constitutes plain error that affects the
defendant’s substantial rights and warrants reversal under Booker when
the record does not disclose what discretionary sentence the district court
would have imposed under an advisory guidelines scheme." United
States v. Spivey, No. 04-4657, slip op. at 3 (4th Cir. Mar. 8, 2006)
(unpublished)(citing Hughes, 401 F.3d 546-56).
Apparently, a different process will now take place at the fourth step
of plain-error analysis involving guilty pleas, Booker Sixth Amendment
error, and a record devoid of what sentence the district judge would have
imposed. Specifically, panels of this court will pause at the fourth step
of plain-error analysis, review the record of the arraignment and sentenc-
ing hearings (and any other record evidence from the district court),
stand in the shoes of the district judge who actually found the facts that
created the Booker Sixth Amendment error and imposed the sentence,
determine whether the evidence as to a given judge-found fact was
"overwhelming" and "essentially uncontroverted" (though not admitted
by the defendant), and then speculate as to what the district judge would
have done. If the appellate panel determines that the record evidence in
front of the district judge was "overwhelming" and "essentially uncontro-
verted" as to a given judge-found fact, then the case will not be
remanded to that district judge to resentence the defendant.
In my view, whether a case is resolved by a jury verdict or a guilty
plea, Hughes and its progeny dictate a more straightforward approach at
the fourth step of this court’s plain-error analysis: if the record is devoid
of what sentence the district judge would have imposed, the panel
remands the case to the district judge who found the facts that created the
Booker Sixth Amendment error and imposed the sentence and directs the
district judge to resentence the defendant under the advisory system.
Moreover, in stating that a district judge "created" a Booker Sixth
Amendment error, I offer no criticism of any district judge. Such judges
were simply following "the law and procedure in effect at the time" of
sentencing. Hughes, 401 F.3d at 545 n.4.
40 UNITED STATES v. SMITH
implicitly, the precedent set by a prior panel; only the Supreme Court
or this court sitting en banc can do that); United States v. Chong, 285
F.3d 343, 346 (4th Cir. 2002) (same); accord McMellon v. United
States, 387 F.3d 329, 332-33 (4th Cir. 2005) (en banc).
IV.
If the Fourth Circuit wants to revisit Hughes and its progeny sitting
en banc and address the merits of the majority’s approach to plain-
error analysis, the entire court is (of course) free to do so. I offer no
opinion as to whether Hughes and its progeny are in tension with the
third or fourth step of plain-error analysis in cases such as Olano,
Johnson, and Cotton. My point is much more narrow: unless this
court revisits Hughes and its progeny en banc, and an en banc court
adopts the majority’s approach, Hughes and its progeny control.
Accordingly, the failure to notice the Booker Sixth Amendment viola-
tion applicable to Moore, vacate his sentence, and remand for resen-
tencing would "seriously affect[ ] the fairness, integrity or public
reputation of judicial proceedings." Gray, 405 F.3d at 243; Ruhbayan,
406 F.3d at 302. Further, given that Moore is age 43 (JA 2581), the
difference between a life sentence and a 365-month sentence is mate-
rial. See, e.g., Gray, 405 F.3d at 243; Ruhbayan, 406 F.3d at 301-02.
Thus, I respectfully dissent from the failure to notice the Booker Sixth
Amendment violation applicable to Moore’s sentence, to vacate
Moore’s sentence, and to remand for resentencing. In all other
respects, I concur in the majority opinion.