United States v. Fowler ( 2003 )

Panel rehearing granted by order
filed 9/4/03
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4657
STEVEN FOWLER,
Defendant-Appellant.
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4697
ANTHONY SAMUELS,
Defendant-Appellant.
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4706
TIMOTHY TABOR,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-10)
Submitted: December 10, 2002
Decided: January 14, 2003
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
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COUNSEL
Bryan Emery Gates, Jr., Winston-Salem, North Carolina; Thomas
Franklin Loflin, III, LOFLIN & LOFLIN, Durham, North Carolina;
Paul K. Sun, Jr., SMITH, HELMS, MULLIS, & MOORE, L.L.P.,
Raleigh, North Carolina, for Appellants. Sandra Jane Hairston, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Steven Fowler, Anthony Samuels, and Timothy Tabor were
indicted on one count of conspiracy to distribute in excess of fifty
grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2000). The conspiracy lasted from approximately June 1996 until
January 1999. Following their convictions, Fowler received a life sen-
tence; Samuels and Tabor each received a 360-month sentence. They
now appeal. We affirm.
I
At trial, Clifton Lewis Belcher testified that by October 1996 he
and Fowler were traveling at least weekly from Durham, North Caro-
lina to New York City to purchase crack cocaine.1 Belcher stated that
they never returned to Durham with less than one-half kilogram of
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1
The frequency of the trips slowed in December 1996 but resumed in
January 1997.
2
crack. By April 1997, Samuels was giving Fowler and Belcher money
to purchase at least 125 grams of crack for him on the New York
trips. In mid-1997, Fowler and Belcher began returning to Durham
with powder cocaine, which they then cooked into crack and distrib-
uted. Samuels and Tabor showed them how to convert powder
cocaine into crack. Additionally, Tabor was a crack dealer; his sup-
plier often was Fowler.
Fowler and Belcher eventually decided that it was unwise for them
to travel together to New York to purchase cocaine powder. William
Davis subsequently accompanied Belcher on some of Belcher's trips
north. Davis testified that on five trips in 1998, he and Belcher
returned to Durham with a total of eleven kilograms of cocaine pow-
der.
II
Fowler argues that the court improperly admitted a taped telephone
conversation among Belcher, Fowler's girlfriend, and Fowler. At the
time of the conversation, Belcher was cooperating with the police.
Fowler's statements on the tape were admissions by a party-opponent.
They were offered against Fowler and were his own statements. See
Fed. R. Evid. 801(d)(2)(A); United States v. Price, 13 F.3d 711, 720
(3rd Cir. 1994); United States v. Hernandez, 829 F.2d 988, 994 (10th
Cir. 1987). Fowler argues that the statements of Belcher should not
have been admitted into evidence under the co-conspirator exception
to hearsay because Belcher was cooperating with the Government,
and thus, the statements were not made "by a coconspirator of a party
during the course and in furtherance of the conspiracy," Fed. R. Evid.
801(d)(2)(E). Although Fowler is correct in asserting that Belcher was
no longer a member of the conspiracy, see United States v. Chase,
372 F.2d 453, 459 (4th Cir. 1967), he is incorrect in characterizing the
statements as hearsay. The statements were not being offered to prove
the truth of the matters asserted, but were only proffered to set the
context for Fowler's responses. Accordingly, the statements of Bel-
cher and Fowler's girlfriend were properly admitted as "reciprocal
and integrated utterance(s)," United States v. Metcalf, 430 F.2d 1197,
1199 (8th Cir. 1970), to put Fowler's statements into perspective and
make them "intelligible to the jury and recognizable as admissions,"
United States v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973). See
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United States v. McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990);
United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988);
cf. United States v. Leake, 642 F.2d 715, 720 n.6 (4th Cir. 1981)
(admitting testimony regarding conversation that was "necessary to
explain the context in which [the defendant] made the statements").
Admission of the tape was not an abuse of discretion.
III
Samuels' offense level was enhanced for firearm possession. See
U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998). There was
evidence that Belcher carried, used, and possessed a firearm in fur-
therance of the conspiracy. Indeed, Belcher freely admitted that he
was "the right hand man" for Fowler and Samuels, and that customers
knew he would shoot them if they did not pay for the drugs they
bought. Belcher's possession of a firearm was attributable to his
coconspirator, Samuels. USSG § 1B1.3(a)(1)(B); United States v.
Hunter, 19 F.3d 895, 896 (4th Cir. 1994). Enhancement of Samuels'
sentence under USSG § 2D1.1(b)(1) was not clearly erroneous.
IV
During sentencing, the district court found each defendant account-
able for at least 1.5 kilograms of crack. Fowler, Samuels, and Tabor
contend that the district court should not have held them responsible
for more than the fifty grams of crack with which the indictment
charged them and for which the jury found them guilty; they contend
that the jury, rather than the court, should have calculated the amount
of crack attributable to them for sentencing purposes. The Supreme
Court has held, "Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We dis-
cern no violation of Apprendi in this case.
The three defendants were charged with conspiracy to distribute in
excess of fifty grams of crack cocaine. The statutory maximum sen-
tence for this offense is life in prison. 21 U.S.C. § 841(b)(1)(A).
"[T]he Supreme Court, in both Apprendi and its precursor, Jones v.
United States, 526 U.S. 227 . . . (1999), explained that there is no con-
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stitutional infirmity in a trial court's use of facts proven only by a pre-
ponderance of the evidence when exercising the wide discretion to
`impos[e] a judgment within the range prescribed by statute.'" United
States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000). Here, the district
court found by a preponderance of the evidence that each defendant
was accountable for at least 1.5 kilograms of crack, a finding fully
supported by the evidence.2 The district court did not contravene the
rule of Apprendi because none of the defendants received a sentence
beyond the maximum term specified in § 841(b)(1)(A).
V
We grant defendants' motions to file pro se supplemental briefs.
We have considered the issues raised in those briefs and find them to
be without merit. We affirm the convictions and sentences. We deny
Fowler's motion to compel a reply and his motion to be personally
served with all information. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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2
The claim that the district court made no findings as to the amount or
type of drugs involved in the conspiracy is belied by the record.
Both Tabor and Samuels argue that there was no evidence that they
were accountable for at least 1.5 kilograms of crack. The evidence in fact
supports a finding that they were responsible for far more than that
amount. Davis' testimony that in 1998 he and Belcher returned to Dur-
ham with a total of eleven kilograms of powder cocaine is alone suffi-
cient to find Tabor and Samuels responsible for 1.5 kilograms of crack.
We note that neither Tabor nor Samuels disagrees that one gram of
cocaine powder converts to .89 grams of crack. Further, the amount of
crack—well in excess of 1.5 kilograms—to which eleven kilograms of
powder cocaine converts is attributable to all members of the conspiracy.
See United States v. Carrington, 301 F.3d 204, 211 (4th Cir. 2002).
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