United States v. Coleman , 16 F. App'x 217 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4509
GEORGE COLEMAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4659
JOHN ERIC HUGHES,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-00-4)
Submitted: July 31, 2001
Decided: August 15, 2001
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Keith B. Marcus, BREMNER, JANUS, COOK & MARCUS, Rich-
mond, Virginia; Wayne R. Morgan, Jr., Richmond, Virginia, for
2 UNITED STATES v. COLEMAN
Appellants. Helen F. Fahey, United States Attorney, Michael C. Wal-
lace, Special Assistant United States Attorney, Marc I. Osborne,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, George Coleman and John Eric Hughes each
were convicted on one count of conspiracy to distribute crack
cocaine, in violation of 21 U.S.C.A. § 846 (West 1999). Coleman and
Hughes appeal, raising numerous grounds of error. Finding no merit
to their claims, we affirm their convictions.
Appellants assert that there was insufficient evidence to support
their convictions because the government’s witnesses lacked credibil-
ity. However, in evaluating the sufficiency of the evidence, this Court
does not review the credibility of the witnesses and assumes that the
jury resolved all contradictions in the testimony in favor of the gov-
ernment. Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
Next, Appellants raise two claims relating to the Supreme Court’s
recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000).1 First, they argue that their § 846 convictions must be
overturned because 21 U.S.C.A. § 841 (West 1999 & Supp. 2001) is
1
Under Apprendi, any fact, other than a prior conviction, that increases
the statutory maximum penalty for a crime is an element of the offense,
and as such, must be charged in the indictment, submitted to a jury, and
proven beyond a reasonable doubt. 530 U.S. at ___, 120 S. Ct. at 2362-
63.
UNITED STATES v. COLEMAN 3
2
unconstitutional after Apprendi. We find this argument to be merit-
less. United States v. Cernobyl, ___ F.3d ___, 2001 WL 733406 (10th
Cir. June 29, 2001); United States v. Brough, 243 F.3d 1078, 1080
(7th Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1311
n.16 (11th Cir. 2001), cert. denied, ___ U.S. ___, 121 S. Ct. 2535(June 8, 2001) (No. 00-9956); United States v. Slaughter, 238 F.3d
580, 582 (5th Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 2015(May 21, 2001)(No. 00-9519).
Even if § 841 is constitutional, Appellants argue that, because mens
rea is an element of the offense under § 841(a), it also extends to all
elements of the offense, including drug quantity. Consequently, they
claim that the district erred because the jury was not instructed to con-
vict them only if it found that they intended to distribute a specific
quantity of crack. Appellants’ argument fails for two reasons. First,
in the context of 21 U.S.C.A. § 841(b), this court has concluded that
the statutory maximum sentence when drug quantity is not treated as
an element of the crime is twenty years. United States v. Promise, ___
F.3d ___, ___, 2001 WL 732389, at *5 (4th Cir. June 29, 2001); 21
U.S.C.A. § 841(b)(1)(C). Coleman’s 144-month sentence and
Hughes’ 235-month sentence each fall below the 240-month maxi-
mum in 21 U.S.C.A. § 841(b)(1)(C). Accordingly, the drug quantity
did not have to be charged in the indictment, submitted to the jury,
and proven beyond a reasonable doubt, much less the intent to distrib-
ute a particular drug quantity. Second, "the § 841(b) sentencing provi-
sions only require the government to prove that the offense ‘involved’
a particular type and quantity of controlled substance, not that the
defendant knew he was distributing that particular type and quantity."
United States v. Sheppard, 219 F.3d 766, 768 n.2 (8th Cir. 2000),
cert. denied, ___ U.S. ___, 121 S. Ct. 1208 (Feb. 26, 2001) (No. 00-
8160).
Appellants contend that the government created a fatal variance by
introducing evidence of powder cocaine where the indictment alleged
2
Appellants were charged with conspiracy, rather than a substantive
drug offense. However, 21 U.S.C.A. § 846 provides that anyone conspir-
ing to commit an offense under § 841, "shall be subject to the same pen-
alties as those prescribed for the offense, the commission of which was
the object of the . . . conspiracy."
4 UNITED STATES v. COLEMAN
only a conspiracy to distribute crack. The evidence in this case
showed that the conspiracy shifted from powder cocaine in its early
days to the crack trafficking conspiracy charged in the indictment.
Under the facts of this case, we find that there was no fatal variance.
United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).
In a related claim, Appellants argue that the court erred by failing
to give an instruction on a single versus a multiple conspiracy. How-
ever, the district court gave the jury such an instruction—an instruc-
tion that was taken almost verbatim from Hughes’ proposed multiple
conspiracy instruction.
Next, Appellants argue that the court erred by disallowing expert
legal testimony concerning the difference in penalties for powder
cocaine and crack. They sought to introduce this testimony to show
that some witnesses were motivated to testify against Appellants
because, although these witnesses were involved in the crack conspir-
acy, they were able to plead to lesser charges. We find that the evi-
dence of the actual penalties for powder cocaine and crack were not
relevant, but rather that the only relevant matter was whether particu-
lar witnesses were motivated to testify against Appellants because
they believed that they faced higher penalties for crack versus powder
cocaine. Defense counsel had the opportunity to question witnesses
about their plea arrangements and other motivation for testifying. We
find no abuse of discretion in the district court’s exclusion of expert
testimony on the differing penalties for powder cocaine and crack.
United States v. Barnette, 211 F.3d 803, 816 (4th Cir. 2000) (evidenti-
ary rulings, including decision to admit or exclude expert testimony,
reviewed for abuse of discretion).
Hughes testified that he had no involvement with drugs. After the
defense had rested, the government presented rebuttal evidence that
police found drug paraphernalia in the room where Hughes was
arrested. On appeal, Hughes contends that the district court improp-
erly allowed the government to introduce this evidence for the first
time in rebuttal when Hughes no longer had an opportunity to explain
his possession of these items. In light of Hughes’ testimony denying
involvement with drugs, we find that the district court did not abuse
its discretion by allowing the government to present rebuttal evidence
to dispute the claim. Geders v. United States, 425 U.S. 80, 86-87
UNITED STATES v. COLEMAN 5
(1976); Hospital Bldg. Co. v. Trustees of Rex Hosp., 791 F.2d 288,
294 (4th Cir. 1986).
Hughes claims he was denied effective assistance of counsel
because, inter alia, counsel failed to arrange for an expert to analyze
and testify concerning the authenticity of a tape recording the govern-
ment introduced at trial between a cooperating witness and Hughes as
evidence that Hughes had obstructed justice by threatening a witness.
Claims of ineffective assistance generally are not cognizable on direct
appeal unless the record conclusively shows that counsel was ineffec-
tive. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). We
decline to consider Hughes’ ineffective assistance claims because we
find that the record does not conclusively show that counsel was inef-
fective.
For these reasons, we affirm Appellants’ convictions. We deny
Hughes’ pro se motion to remand the case to the district court to chal-
lenge the authenticity of the tape recording. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED