United States v. Lawson , 16 F. App'x 205 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4665
JUANITA E. LAWSON,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4685
WADE CUTCHEN, a/k/a Tool Man,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4700
CURTIS D. DAVIS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4861
ORRIS L. AVENT, a/k/a Junie Red,
Defendant-Appellant.

2 UNITED STATES v. LAWSON
Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(CR-99-55)
Submitted: June 29, 2001
Decided: August 10, 2001
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James S. Ellenson, ELLENSON LAW OFFICE, Newport News, Vir-
ginia; Larry M. Dash, Newport News, Virginia; Terry N. Grinnalds,
Hampton, Virginia; Robert E. Long, LAW OFFICE OF ROBERT E.
LONG, Hampton, Virginia, for Appellants. Helen F. Fahey, United
States Attorney, Timothy R. Murphy, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Juanita Lawson, Wade Cutchen, Curtis Davis, and Orris Avent
were convicted by a jury of conspiracy to possess with intent to dis-
tribute and distribute 1000 grams or more of heroin and 500 grams
UNITED STATES v. LAWSON 3
or more of cocaine, and related substantive counts. Although the
indictment alleged drug quantity and type, the jury was instructed
that, to convict the defendants of conspiracy, the jurors need not find
that the Government had proved the exact drug amounts alleged in the
indictment. Lawson was sentenced to a term of 360 months imprison-
ment. Cutchen received a sentence of 324 months. Davis was sen-
tenced to 300 months, and Avent was sentenced to 236 months
imprisonment. We affirm.
All four defendants challenge their sentences on the ground that the
drug quantities used to compute their sentences were not submitted to
the jury and proved beyond a reasonable doubt, thus violating the rule
set out in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding
that, other than the fact of a prior conviction, any fact that increases
the statutory maximum penalty for a crime must be submitted to a
jury and proved beyond a reasonable doubt). We have since held that
drug quantity and type are elements of an offense under 21 U.S.C.A.
§ 841 (West 1999). United States v. Promise, ___ F.3d ___, 2001 WL
732389 (4th Cir. June 29, 2001) (en banc); United States v. Angle,
___ F.3d ___, 2001 WL 732124 (4th Cir. June 29, 2001) (en banc).
Because the district court failed to treat the "specific threshold drug
quantities" that trigger enhanced sentences under § 841(b)(1)(A) or
(b)(1)(B) as elements of the offense, 240 months is the statutory max-
imum sentence for the defendants’ conspiracy offense. Promise, 2001
WL 732389 at *1 & n.1. Avent’s 236-month sentence was thus not
erroneous under Apprendi.
Defendants Lawson, Cutchen, and Davis received sentences of
more than 240 months imprisonment and preserved the Apprendi
issue for appeal by raising it at their respective sentencing hearings.
Because the district court failed to submit the element of drug quan-
tity to the jury, the imposition of more than the statutory maximum
of 240 months was error. Id. Failure to instruct the jury on an element
of the offense is not structural error and may be harmless, however,
if it does not affect substantial rights. Neder v. United States, 527 U.S.
1, 7, 15 (1999); United States v. Stewart, ___ F.3d ___, 2001 WL
760262, at *16 (4th Cir. July 6, 2001). The test for determining
whether a non-structural constitutional error is harmless is "whether
it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained." Neder, 527 U.S. at 15.
4 UNITED STATES v. LAWSON
Our review of the testimony presented at trial discloses that the
Government introduced overwhelming evidence of the defendants’
involvement with quantities of heroin that were greater than the quan-
tities of heroin charged in the indictment, and for Lawson and Davis,
with larger quantities of cocaine as well. At their respective sentenc-
ing hearings, the defendants contested the quantity of drugs attributed
to them principally by arguing that Alonzo Wooten, the Govern-
ment’s chief witness, was not credible. They conceded that, if Woo-
ten’s testimony were accepted, the Government had proved the
amounts charged in the indictment. An appeals court does not review
the credibility of witnesses when assessing the sufficiency of the gov-
ernment’s evidence. United States v. Hobbs, 136 F.3d 384, 390 n.11
(4th Cir. 1998). We conclude that the evidence of drug quantity was
overwhelming, and thus, it appears beyond a reasonable doubt that the
failure to submit drug quantity to the jury did not affect the outcome
of the trial and did not affect the defendants’ substantial rights.
Moreover, because the defendants were convicted of multiple drug
offenses, had the district court recognized that the maximum sentence
was 240 months, it would have been required under U.S. Sentencing
Guidelines Manual § 5G1.2(d) (2000), to impose consecutive sen-
tences to the extent necessary to achieve the guideline sentence. We
have held that, in this circumstance, a defendant’s substantial rights
are not violated by the imposition of consecutive sentences. Stewart,
2001 WL 760262, at *20; Angle, 2001 WL 732124, at *3-4; White,
238 F.3d at 543. In sum, we find no basis for holding that the failure
to submit drug quantity to the jury was anything but harmless error.
Defendants also claim that the district court’s failure to submit the
issue of drug quantity to the jury requires a new trial. Defendants
moved for a new trial in the district court, but their motions were
denied. We review the district court’s decision for abuse of discretion.
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). Under
Federal Rule of Criminal Procedure 33, the district court may grant
a new trial "if the interests of justice so require." Because the defen-
dants were properly sentenced for the conspiracy of which they were
convicted, the interests of justice do not require that they be retried.
Cf. United States v. Obi, 239 F.3d 662, 667 (4th Cir. 2001), petition
for cert. filed, May 8, 2001 (No. 00-9843).
UNITED STATES v. LAWSON 5
Defendants next contend that the sentencing guidelines are uncon-
stitutional under Apprendi in that they permit sentence enhancements
based on judicial fact findings by a preponderance of the evidence,
and consequently abridge various due process rights. We rejected this
argument in United States v. Kinter, 235 F.3d 192, 198-202 (4th Cir.
2000) (holding that there is no constitutional infirmity in district
court’s finding, by a preponderance of the evidence, facts relating to
sentence imposed within the statutory range), cert. denied, 121 S. Ct.
1393 (2001).
Raising the issue for the first time on appeal, Avent maintains that
the government’s use of witnesses who were under threat of prosecu-
tion or were seeking a reduction in sentencing based upon their coop-
eration violated his due process rights and that such evidence should
not be considered in determining the sufficiency of the evidence sup-
porting his convictions for Count 1 and Count 22. He relies on the
federal bribery statute, 18 U.S.C.A. § 201(b)(3), (c)(2) (West 2000),*
but acknowledges that he has no legal support for his argument. We
have held that "the government does not violate § 201(c)(2) by grant-
ing immunity or leniency or entering into plea agreements to obtain
testimony." United States v. Richardson, 195 F.3d 192, 197 (4th Cir.
1999), cert. denied, 528 U.S. 1096 (2000). Nor is the government pre-
vented from using testimony from a paid informant. United States v.
Anty, 203 F.3d 305, 308-10 (4th Cir.), cert. denied, 121 S. Ct. 131(2000). Thus, the district court did not plainly err in admitting the tes-
timony of the Government’s witnesses. United States v. Olano, 507
U.S. 725, 731-32 (1993) (providing standard).
Finally, Avent challenges the sufficiency of the evidence support-
ing his conviction on Counts 18-21 for distribution of heroin and
cocaine. Our review of the record discloses that substantial evidence
supported the convictions. See United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (en banc) (stating standard).
We therefore affirm the defendants’ convictions and sentences. We
dispense with oral argument because the facts and legal contentions
*Title 18, § 201(b)(3) prohibits giving or promising anything of value
with intent to influence testimony. Section 201(c)(2) prohibits giving or
promising anything of value in return for testimony.
6 UNITED STATES v. LAWSON
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED