United States v. Xavier Eccleston , 615 F. App'x 767 ( 2015 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4133
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    XAVIER D. ECCLESTON, a/k/a Xavier Daniel Eccleston, a/k/a X,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt.      Alexander Williams, Jr., District
    Judge. (8:11-cr-00567-AW-3)
    Argued:   March 25, 2015                  Decided:   July 31, 2015
    Before MOTZ and GREGORY, Circuit Judges, and Mary Geiger LEWIS,
    United States District Judge for the District of South Carolina,
    sitting by designation.
    Affirmed by unpublished opinion.       Judge Gregory    wrote   the
    opinion, in which Judge Motz and Judge Lewis joined.
    ARGUED:    Anthony Douglas Martin, I, ANTHONY D. MARTIN, PC,
    Greenbelt, Maryland, for Appellant. David Ira Salem, OFFICE OF
    THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
    ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    GREGORY, Circuit Judge:
    In      this    federal       drug     conspiracy       case,     the    defendant-
    appellant,     Xavier      Eccleston,       alleges      that   the    district       court
    made numerous errors before and during trial, as well as during
    sentencing.         Because      the      district      court   did    not    abuse     its
    discretion or err in its pretrial, trial, or sentencing rulings,
    we affirm.
    I.
    A.
    Eccleston       and    nineteen        co-defendants       were    charged       in    a
    criminal     complaint      on     September      22,    2011   with    one     count      of
    conspiracy to posses with intent to distribute five kilograms or
    more of a mixture or substance containing a detectable amount of
    cocaine      and    280    grams    or     more   of     a   mixture     or    substance
    containing a detectable amount of cocaine base, commonly known
    as crack cocaine.           The complaint was based in part on evidence
    obtained through execution of a warrant issued pursuant to Title
    III of the Omnibus Crime Control and Safe Streets Act of 1968,
    18 U.S.C. §§ 2510-2522 (“Title III”).
    Eccleston appeared before the district court on September
    28, 2011 and a magistrate judge signed an “order of detention by
    agreement” on that same day.               He was indicted on the charges set
    forth   in    the    criminal       complaint      on    October      26,     2011.        On
    2
    November 2, 2011, he was arraigned and entered a plea of not
    guilty.    The district court initially set a motions hearing date
    of December 16, 2011 and a trial date of January 3, 2012.
    On November 2, 2011, the government filed, and none of the
    defendants opposed, a motion to exclude time under the Speedy
    Trial Act, 18 U.S.C. §§ 3161-3174.            In support of its motion,
    the government cited:          “(1) . . . two charged defendants who
    have   been   fugitives   for    approximately     one   month;    (2)       . . .
    voluminous    discovery   the    government    must   produce     and   defense
    counsel must analyze; and, (3) the unusual and complex nature of
    the case.”      J.A. 1128.      In granting the motion, the district
    court found that it was necessary to toll the speedy trial clock
    not    only   pursuant    to    18   U.S.C.   § 3161(h)(6)      due     to    the
    fugitives, but also pursuant to 18 U.S.C. § 3161(h)(7) because
    the “interests of justice” outweighed the interest in a speedy
    trial.    The court stated that it was necessary to toll the clock
    to “provide the defendants and defense counsel sufficient time
    to review fully all of the voluminous discovery materials and to
    prepare and file pretrial motions” and to give “defense counsel
    and the [g]overnment the reasonable time necessary for effective
    preparation.”     J.A. 116 (observing that the case “involve[s]
    wiretap   evidence,   including      more   than   10,000   pertinent        calls
    captured from at least three different wiretapped phone lines”).
    The order excluded from the speedy trial clock the time between
    3
    the date of the order, November 21, 2011, and the date of the
    initial appearance of the last fugitive defendant.                               The order
    further     excluded     any    time     between       the    date    of    the       initial
    appearance of the last fugitive defendant and the trial date,
    which the court planned to set at a later date.
    On December 15, 2011, the government filed a motion to take
    the December 16, 2011 motions hearing date off of the calendar,
    and   to    convert     the    January    3,    2012    trial    date       to    a    status
    conference.      Defense counsel consented to the motion.                        Though no
    order granting the motion appears on the docket, the district
    court apparently did so; it issued an informal January 3, 2012
    letter order stating that pretrial motions were due by April 17,
    2012 and that trial would commence on August 21, 2012.
    Eccleston had previously written to his counsel on November
    9, 2011 indicating that he did not want to waive his speedy
    trial rights.         He wrote to counsel again on December 22, 2011,
    reiterating      that    he    objected    to    a   speedy      trial      waiver.          On
    January     3,   2012,    Eccleston’s      attorney          filed   a     motion      for   a
    speedy trial pursuant to both the Sixth Amendment and the Speedy
    Trial Act. 1      In addition to his speedy trial motion, Eccleston
    filed      several    pretrial     motions      on     January       21,    2012,      among
    1
    Although the docket text reflects that the government was
    to respond by January 20, 2012, no response was filed on that
    date.
    4
    others:     (1) a motion for Disclosure by Government of Intent to
    Use   Uncharged         Misconduct       and     Prior       Convictions         (the    “404(b)
    Motion”); and (2) a motion for sequestration of witness. 2
    On January 23, 2012 Eccleston sent a letter to the district
    court;    the     letter      was    dated       January      10,       2012.      His    letter
    stated:     “[s]ince day one, I have been adamant about my desire
    for a speedy trial.                . . .     I haven’t consented to any delays
    and never gave any inclination to my attorney that I would.”
    J.A. 1112.       He argued also that (1) the fugitive defendants were
    not   named      on   the    indictment          and   thus       could    not    be    properly
    considered his co-defendants for purposes of tolling the speedy
    trial     clock;      (2)    the    case     was       not    complex,      but        rather   an
    ordinary street crime; (3) the government had failed to provide
    complete      discovery       despite       promises         to    do     so;    and     (4)    the
    factors set forth in Barker v. Wingo, 
    407 U.S. 514
    (1972), which
    courts     use     to    determine         whether       a    defendant          has    suffered
    prejudicial delay in bringing his case to trial, weighed in his
    favor.      Eccleston        sent    the     district         court      another       letter   on
    April 9, 2012 (dated April 8, 2012) indicating that he had not
    authorized counsel to enter into a discovery agreement with the
    government,        and      that    in     any       event,       he    believed       that     the
    2   The government responded to these motions on January 30,
    2012.
    5
    government had breached the agreement.                           He sent a third letter
    to    the    court      on     June   1,     2012,      again    requesting    “independent
    access to my discovery so I can properly prepare my defense.” 3
    J.A. 1119.
    On    April       17,    2012,       Eccleston’s       counsel   filed      additional
    pretrial motions, among which were:                           (1) a second motion for a
    speedy trial; (2) a motion to suppress the Title III wiretaps;
    and    (3)    a    motion       to    dismiss     the     indictment    on    speedy      trial
    grounds.          The government filed a response to these motions on
    May 14, 2012.            The government’s May 14 filing was the first time
    that it responded to Eccleston’s speedy trial motions.
    Eccleston’s pretrial motions hearing took place on July 25,
    2012.        During       the     hearing,        the    district     court    granted     the
    government’s            request       to    delay       the     beginning     of   trial    to
    September         11,     2012,       due    to    a     government     counsel’s      health
    concerns.         The court then ruled on Eccleston’s pending motions.
    As relevant here, the court granted his motions for notice of
    the     government’s            intent       to    use     404(b)     evidence      and    for
    sequestration of witness, and denied his speedy trial motion,
    3
    Counsel explained during the pretrial motions hearing that
    Eccleston requested personal copies for his review while in
    jail. However, counsel represented that the discovery agreement
    prevented him from giving Eccleston such copies, because it
    allowed only for Eccleston to review discovery during meetings
    with counsel.
    6
    motion      to       suppress      evidence       obtained      from       the      Title    III
    warrants.            The   court     also    denied      his    request       for    a     Franks
    hearing concerning the Title III warrant application. 4
    On     August        8,     2012,    the    grand      jury    returned        a     fourth
    superseding           indictment. 5          The        indictment        removed        certain
    defendants,          and   also     included      new    charges        against     Eccleston.
    Specifically, the fourth superseding indictment added two counts
    of possession with intent to distribute cocaine (counts nine and
    eleven) in violation of 21 U.S.C. § 841, as well as two counts
    of   using       a    telephone      in     furtherance        of   a    drug      trafficking
    offense      (counts        eight     and    ten)       in   violation        of    21     U.S.C.
    § 842(b).            Eccleston was arraigned on the fourth superseding
    indictment on the first day of trial, September 11, 2012.
    B.
    The    trial         took    place    from      September     11-19,         2012.     The
    government called several witnesses, including co-defendants and
    others       who           were      cooperating             with       the        government:
    Christopher Rainey,                Decarlos           Bryant,       Antonio          Marshall,
    Kenneth Smith, and Gavin Wallis.
    4   Franks v. Delaware, 
    438 U.S. 154
    (1978).
    5Previous indictments had added a forfeiture allegation,
    and added or removed defendants.
    7
    Rainey     testified        that     he       sold   drugs      in   the   Kentland,
    Maryland area in concert with co-defendant Phillip Whitehurst,
    who ran the operation.                 According to Rainey, “it was a 24/7
    operation” that was managed from three different stash houses in
    the Kentland area.           J.A. 462-63.            The drug ring sold both crack
    and   powder     cocaine.         He     witnessed         Eccleston       and   other   co-
    defendants      purchase      distribution           quantities       of   powder   cocaine
    from Whitehurst on several occasions.                           However, he disclaimed
    personal       knowledge     of     what    Eccleston           did   with    the   powder.
    Rainey further testified that Eccleston stopped by the stash
    houses    to    watch   TV,    do    drugs,         drink,   and      socialize.       While
    Eccleston was at the stash houses, others would often stop by to
    purchase both crack and powder cocaine.                           The government also
    introduced       several     audio      recordings         of    phone     calls    through
    Rainey.        The   audio    was      obtained       pursuant        to   the   Title   III
    wiretap    warrant.           During       the       phone      calls,     Eccleston     and
    Whitehurst discussed purchases of powder cocaine.
    During Rainey’s testimony, Eccleston’s counsel approached
    the bench to report that witnesses had been speaking with one
    another in holding cells and in the hallway.                                 He asked the
    district court to direct government counsel to remind witnesses
    of the sequestration order.                However, counsel did not make any
    representation that the conversations were about the trial or
    about trial testimony.            The district court ruled that there was
    8
    no evidence of a violation of the sequestration order.                                 The
    court     nonetheless        reminded      government          counsel    to     admonish
    witnesses not to speak with each other about the case.
    Later, Smith testified that he also had sold distribution
    quantities of powder cocaine to Eccleston.                            Additional audio
    recordings concerning Eccleston’s purchases were also introduced
    through    Smith.       On    these     recordings,       Whitehurst      stated       that
    Eccleston was purchasing powder, cutting it with baking soda or
    other substances, and then selling it.
    Marshall similarly testified that he had sold distribution
    quantities of powder cocaine to Eccleston.
    Wallis      was   granted       immunity     for    his    testimony.        He   and
    Eccleston met in high school, and more recently, Eccleston had
    agreed to provide personal training sessions to Wallis free of
    charge.     Wallis testified that he had purchased cocaine from
    Eccleston    five      to   ten   times,      each   time      between    one    and   ten
    grams.      He   was    not    charged     as    part     of    the   conspiracy,       and
    testified that he had never been convicted of a crime.
    The    government        also    introduced        testimony     from     Montgomery
    County    Police    Detective        Robert     Grims,    who    arrested       Eccleston
    pursuant to an arrest warrant.                  He searched Eccleston and found
    two cell phones.            He then searched one of these cell phones
    without first obtaining a warrant for that search.
    9
    Months      after    Detective      Grims    searched       the     phone,     and
    shortly     before    trial,       the   FBI   obtained    a    search    warrant     and
    searched     the    phone.         Eccleston    objected       during    trial   to   the
    introduction of certain evidence obtained in connection with the
    searches and moved to suppress that information.                          The district
    court took a trial recess in order to allow counsel to do legal
    research.         The court then held a suppression hearing and took
    testimony from Detective Grims.                 The district court ultimately
    denied      the    motion     to    suppress,      finding      that     then    binding
    appellate law permitted the warrantless search.                          The district
    court further found that the subsequent warrant application was
    based on information known prior to the search and seizure of
    the phones, and that the subsequent search was not tainted by
    the first search.
    Near the end of trial, the following colloquy took place
    between defense counsel and FBI Special Agent Mark E. James:
    Q.    Well you knew he was staying there [at the
    residence where Eccleston was living], didn’t you?
    A.    We suspected that he was staying there based on
    some physical surveillance and records, I believe,
    we got from parole and probation. Yes.
    J.A.    977.        Despite    Agent      James’    reference      to     “parole     and
    probation,” Eccleston did not object or request a curative jury
    instruction either at the time or during a later discussion with
    the court about jury instructions.
    10
    After the government rested its case, Eccleston moved for a
    judgment     of    acquittal,     arguing        that   there    was    insufficient
    evidence to convict him for conspiracy with intent to distribute
    cocaine and cocaine base.              He further argued that the evidence
    supported multiple conspiracies revolving around lead defendant
    Whitehurst        and    requested     a     jury   instruction        for   multiple
    conspiracies.           The   motion   for      judgment   and   request     for   the
    multiple conspiracy instruction were denied.
    C.
    The case was then submitted to the jury.                    During the course
    of deliberations, the jury sent a note to the court, which read:
    “Is it possible to alter the [verdict] form from ‘and crack
    cocaine’ to ‘and/or’?”           J.A. 1039.         The district court provided
    the following written response:
    In response to your note, I am clarifying Instruction
    No. 47,[6] a copy of which I am providing to you.   I
    instruct you that in order to find the defendant
    guilty of Count One of the Fourth Superseding
    Indictment, you must find that the government has
    proved beyond a reasonable doubt the two elements of
    the offense of conspiracy. With respect to the first
    element of conspiracy, you must find that two or more
    people   entered  into   an  unlawful   agreement  to
    distribute and possess with intent to distribute a
    controlled substance and you must also unanimously
    agree which controlled substance -- powder cocaine,
    crack cocaine, or both -- was involved in the
    6 Instruction No. 47 addressed what the government                            must
    prove with respect to the first element of conspiracy:                              the
    existence of an unlawful agreement.
    11
    conspiracy.    You may find the defendant guilty of
    Count One if you find that the conspiracy involved
    powder cocaine or crack cocaine or both, but you must
    be unanimous as to which form of cocaine was involved.
    Accordingly, I am submitting to you a slightly revised
    verdict form to reflect this instruction.
    J.A. 1040.    The two verdict forms were identical, except that
    the revised form required the jury to identify which drug (or
    drugs) it unanimously agreed was involved in the conspiracy.
    Compare J.A. 1042 (original verdict form for count one), with
    J.A. 1045 (altered verdict form for count one).
    On September 21, 2012, the jury returned a verdict, finding
    Eccleston guilty of conspiracy to distribute and possess with
    intent to distribute both powder and crack cocaine.                The jury
    attributed   to   Eccleston   500   grams   to   5   kilograms   of   powder
    cocaine, and less than 28 grams of crack cocaine.           Eccleston was
    further found guilty of counts eight, nine, ten, and eleven of
    the Fourth Superseding Indictment.
    Eccleston    was   sentenced   to   concurrent    sentences      of   210
    months’ imprisonment on count one, 96 months’ imprisonment on
    count eight, 210 months’ imprisonment on count nine, 96 months’
    imprisonment on count ten, and 210 months’ imprisonment on count
    eleven, to be followed by 8 years of supervised release.              He was
    also assessed a $500 criminal monetary penalty.             In sentencing
    Eccleston, the district court “var[ied] down from the guidelines
    235 [months’ imprisonment] for Count 1.”         J.A. 1100.
    12
    This    appeal       followed.           Eccleston       advances      numerous
    arguments on appeal.         First, he contends that delay between his
    arrest and the commencement of his trial was unconstitutionally
    lengthy in violation of the Sixth Amendment, and that the delay
    also constituted a violation of the Speedy Trial Act.                       He also
    contends that it was error for the district court to admit the
    evidence    obtained      from   his   cell    phone.        He   argues   that   the
    district    court     abused     its   discretion       in    finding      that   its
    sequestration order had not been violated.                   He also argues that
    he suffered prejudice under Federal Rule of Evidence 404(b) when
    a case agent referred to obtaining information from a parole or
    probation    office    about     his   address.         Eccleston     additionally
    contends    that    the    district    court    constructively        amended     the
    indictment in this case when it altered the jury verdict form in
    response to a jury question.           He further challenges the district
    court’s refusal to instruct the jury on multiple conspiracies.
    And finally, Eccleston contends that the district court erred in
    the amount of cocaine and cocaine base it attributed to him for
    purposes of sentencing.          For the reasons that follow, we reject
    each of these arguments.
    II.
    Eccleston argues that both his constitutional and statutory
    speedy trial rights were violated.             We address each in turn.
    13
    A.
    First, Eccleston alleges that the delay between his arrest
    and the commencement of his trial violated his right to a speedy
    trial under the Sixth Amendment.                   We review de novo a district
    court’s     constitutional       speedy         trial    determination.          United
    States v. Hall, 
    551 F.3d 257
    , 266 (4th Cir. 2009).
    The Supreme Court has directed federal courts to consider
    four     factors    when     addressing          Sixth   Amendment      speedy    trial
    claims:      “Length       of   delay,      the    reason     for    the    delay,   the
    defendant’s assertion of his right, and the prejudice to the
    defendant.”        
    Barker, 407 U.S. at 530
    .                 “To prevail on [his]
    speedy     trial    claim,      [a]    [d]efendant[]          [is]    obliged,    under
    Barker,    to   establish       ‘that      on    balance,     [the]    four    separate
    factors weigh in his favor.’”                    
    Hall, 551 F.3d at 271
    (final
    alteration in original).
    There are two components to the first Barker factor.                          
    Id., 551 F.3d
    at 271 (citing Doggett v. United States, 
    505 U.S. 647
    ,
    651-52 (1992)).         “First of all, a reviewing court must decide
    whether the length of the delay triggers a speedy trial inquiry.
    In that respect, the Court has suggested that we should conduct
    a full inquiry when such a delay approaches one year.”                         
    Id., 551 F.3d
    at 271 (citing 
    Doggett, 505 U.S. at 651-52
    ).                          The relevant
    time   period      to   consider      is   that     between    indictment      and   the
    commencement of trial.           
    Id. (citing United
    States v. MacDonald,
    14
    
    456 U.S. 1
    ,     7    (1982)).        Notably,       “the   delay    that      can    be
    tolerated for an ordinary street crime is considerably less than
    for a serious, complex conspiracy charge.”                      
    Barker, 407 U.S. at 531
    .
    Eccleston was first indicted on October 26, 2011, and his
    trial commenced less than a year later, on September 11, 2012.
    Indeed, although there was a delay between Eccleston’s September
    28, 2011 arrest on the criminal complaint and the October 26,
    2011 indictment, even the time between the arrest and the trial
    was less than one year.              Moreover, he was charged as part of a
    large drug conspiracy.              Accordingly, the first factor does not
    weigh in his favor.
    Based on the foregoing, we need not consider the remaining
    factors.          See 
    Barker, 407 U.S. at 530
    (“Until there is some
    delay which is presumptively prejudicial, there is no necessity
    for inquiry into the other factors that go into the balance.”);
    United States v. Woolfork, 
    399 F.3d 590
    , 597 (4th Cir. 2005)
    (“One      year    is     the    ‘point    at    which    courts      deem   the     delay
    unreasonable enough to trigger the Barker [i]nquiry.” (citing
    
    Doggett, 505 U.S. at 652
    n.1)).                  The first Barker factor “acts
    as     a   threshold       requirement,”        and    “[i]f    the     delay   is       not
    uncommonly        long,    the   inquiry    ends      there.”      United    States      v.
    Grimmond, 
    137 F.3d 823
    , 827 (4th Cir. 1998).                       Having failed to
    15
    clear    the   threshold     requirement,        Eccleston      cannot       show    a
    violation of his Sixth Amendment right.
    Our    conclusion     would   be    the    same   even     if    we    were    to
    consider the remaining factors under Barker.                  The second factor
    addresses “the reasons for the delay.”               
    Barker, 407 U.S. at 530
    .
    “The reasons for a trial delay should be characterized as either
    valid, improper, or neutral.            On this factor, a reviewing court
    must carefully examine several issues, specifically focusing on
    the intent of the prosecution.”              
    Hall, 551 F.3d at 272
    (citation
    omitted).      Here,   the   district        court   stated     that       the   delay
    stemmed from the complexity of the case.                     Indeed, as we will
    discuss in more detail below, the complexity of the case led the
    court to grant the government’s motion to exclude time under the
    Speedy Trial Act.        Moreover, Eccleston caused delay by filing
    numerous pretrial motions, all of which by definition had to be
    resolved prior to the commencement of trial.                  We find that there
    were valid reasons for the trial delay.
    The    third   Barker   factor     addresses      whether       the   defendant
    timely asserted his right to a speedy trial.                   
    Barker, 407 U.S. at 532
    .     Eccleston did so, and this factor thus weighs in his
    favor.
    The    final   Barker    factor      requires      us     to    consider       the
    prejudice to Eccleston.        
    Id. Courts assess
    prejudice “in the
    16
    light     of   the     interests     of     defendants       which    the    speedy   trial
    right was designed to protect.”                   
    Id. at 532.
           There are
    three such interests:      (i) to prevent oppressive
    pretrial incarceration; (ii) to minimize anxiety and
    concern of the accused; and (iii) to limit the
    possibility that the defense will be impaired.    Of
    these, the most serious is the last, because the
    inability of a defendant adequately to prepare his
    case skews the fairness of the entire system.
    
    Id. As to
    the first prejudice interest, we note per the first
    Barker factor that the delay in this case was not presumptively
    prejudicial           and   there      is    no       allegation      that    Eccleston’s
    detention was otherwise oppressive.                        As to the second prejudice
    interest, Eccleston has asserted generalized concerns that would
    affect     any    individual        who     is   detained.          See   Opening   Br.    of
    Appellant 41 (complaining of economic harm, damaged credit, the
    inability        to    advance   his      skills      at    work,    embarrassment,       and
    missed birthdays).            Finally, Eccleston has not argued that his
    defense was impaired by the delay. 7                       See 
    Grimmond, 137 F.3d at 830
    (determining that the defendant had not shown impairment of
    7Eccleston argues before this Court that the government
    refused “to permit him access to discovery materials thus
    denying him the opportunity to play a more active role in his
    own defense.” Opening Br. of Appellant 42. However, Eccleston
    did have access to the materials.    As counsel explained during
    the pretrial hearing, the discovery agreement in this case
    prevented counsel from leaving copies of the discovery material
    with Eccleston to keep and review while he was in prison.
    Rather, the agreement allowed Eccleston to review discovery only
    during meetings with counsel.
    17
    his defense where he failed to “identif[y] any witness that was
    unavailable as a result of the delay,” did not “allege[] that
    any   witness     was     unable    accurately          to    recall    the    events   in
    question,” and did “not contend that any exculpatory evidence
    was lost” or that “any evidence . . . was unavailable because of
    the delay”).
    Because      only       one   of     the      Barker       factors      weighs     in
    Eccleston’s favor, we find that his Sixth Amendment right to a
    speedy trial was not violated.
    B.
    Eccleston also alleges that the district court erred in
    excluding time from the speedy trial clock when it granted the
    government’s      tolling       motion          under    the     Speedy       Trial    Act.
    Specifically,      he     faults    the    district          court   for    adopting    the
    government’s assertion that fugitive co-defendants remained at
    large,      and   claims       that       the     fugitive       co-defendants         were
    fabricated.       He further contends that the government simply was
    not ready to proceed with trial.
    “We    review     the    legal     standards       applied       by   the   district
    court in making its ends of justice determination de novo and
    review the district court’s findings under the Speedy Trial Act
    . . . 18 U.S.C. § 3161, under the clearly erroneous standard.”
    United States v. Keith, 
    42 F.3d 234
    , 236 (4th Cir. 1994).                               The
    Speedy Trial Act provides that a defendant’s trial must commence
    18
    within seventy days from the filing of the indictment unless one
    of several exceptions applies.        18 U.S.C. §§ 3161(c)(1), (h).
    Among other types of excusable delay, those delays attributable
    to an appropriate “ends of justice” order can be excluded from
    the speedy trial clock.   
    Id. § 3161(h)(7)(A)
    (providing for the
    exclusion of time when a continuance is granted sua sponte or
    upon a motion by counsel “if the judge granted such continuance
    on the basis of his findings that the ends of justice served by
    taking such action outweigh the best interest of the public and
    the defendant”).
    Here, the speedy trial clock commenced on November 2, 2011,
    when Eccleston was arraigned and pleaded not guilty.       On that
    same day, the government filed a motion to toll the speedy trial
    clock.   None of the defendants opposed the motion at that time.
    In granting the motion, the district court found that
    this case involves complex issues, particularly as
    they involve wiretap evidence, including more than
    10,000 pertinent calls captured from at least three
    different wiretapped phones lines, and thus it would
    be unreasonable to expect adequate preparation for
    pretrial proceedings or for the trial itself within
    the time limits established by the Speedy Trial Act.
    J.A. 116.   The court further explicitly found that the delay was
    necessary to ensure continuity of counsel, as well as to ensure
    that the parties -- both the defendants and the government --
    had adequate time to review the discovery materials.      J.A. 116;
    cf. 18 U.S.C. §§ 3161(h)(7)(B)(ii), (iv).      Given the nature of
    19
    the case, as described by the district court and based upon our
    own review of the record, we hold that the district court did
    not clearly err in granting the government’s motion and tolling
    the speedy trial clock until August 21, 2012.
    We    further    reject       Eccleston’s    challenge      to    the    delay
    occurring between the original August 21, 2012 trial date and
    the actual start of trial on September 11, 2012.                          Eccleston
    apparently     takes    issue    with    government      counsel’s      request    for
    this additional delay, even though government counsel indicated
    that he was willing to go forward with trial on August 21 if the
    court so ordered.            The district court granted the government’s
    request due to counsel’s serious medical situation.                     Unavoidable
    health concerns are a valid reason for granting a reasonable
    delay.       United States v. Trotman, 406 F. App’x 799, 805 (4th
    Cir. 2011) (unpublished); see also United States v. Hale, 
    685 F.3d 522
    , 535 (6th Cir. 2012); United States v. DiTommaso, 
    817 F.2d 201
    ,   210     (2d    Cir.    1987)    (holding    that    a    seven     week
    suspension of the speedy trial clock was warranted under the
    “ends of justice” provision where the chief prosecutor was ill
    and    new   assistant       prosecutors      required    time    to    prepare   for
    20
    trial).    The district court did not clearly err in delaying the
    commencement of trial from August 21 to September 11. 8
    III.
    Eccleston makes several arguments considering the use and
    admissibility of wiretap evidence in his case.                        None of his
    arguments are availing.
    A.
    Eccleston      first    faults   the        government    for     failing     to
    exhaust “normal investigative procedures” prior to filing its
    wiretap    warrant    application.       He       contends    that    this   failure
    violated his rights under the Fourth Amendment, and that the
    evidence    obtained    from    the    wiretaps        thus    should      have   been
    suppressed.
    “We review for clear error the factual findings underlying
    a district court’s ruling on a motion to suppress, and we review
    the   court’s   legal    conclusions         de    novo.”      United      States   v.
    Wilson, 
    484 F.3d 267
    , 280 (4th Cir. 2007).                     Additionally, “we
    review    for   abuse   of    discretion          determinations      of   necessity
    under” Title III.       
    Id. As we
    have previously noted, “wiretaps
    are necessary tools of law enforcement, . . . particularly where
    8Because we find no error in the district court’s “ends of
    justice” ruling, we need not address its other bases for tolling
    the clock.
    21
    crimes are committed by large and sophisticated organizations,”
    and “[c]ourts must be careful not to read the statute in an
    overly restrictive manner.”        
    Id. at 281.
    The    government   bears     the    burden      of   demonstrating          the
    necessity of a wiretap “via a full and complete statement as to
    whether     ‘normal   investigative   procedures        have    been       tried   and
    have failed or reasonably appear to be unlikely to succeed if
    tried or to be too dangerous.’”            
    Id. at 281
    (quoting 18 U.S.C.
    § 2518(3)).     But this burden “is not great, and the adequacy of
    such a showing is to be tested in a practical and commonsense
    fashion that does not hamper unduly the investigative powers of
    law enforcement agents.”          
    Id. (quoting United
    States v. Smith,
    
    31 F.3d 1294
    , 1298 (4th Cir. 1994)).                In Wilson, this Circuit
    found that the government adequately demonstrated the necessity
    of a wiretap by submitting a detailed affidavit in support of
    its   wiretap   
    application. 484 F.3d at 281
    .          The   affidavit
    “span[ned] 64 pages in the Joint Appendix.”                    
    Id. The Circuit
    observed of the affidavit:
    In exhaustive fashion, [the government] set forth the
    techniques that had been used up to that point. Those
    techniques     included     confidential      informants,
    undercover   agents,   surveillance,   trash    searches,
    interviews,   search    warrants,   telephone    records,
    reverse buys, GPS trackers, and financial and public
    records. The affiants then explained that despite the
    information they had been able to gain from these
    traditional sources, they believed that those sources,
    standing alone, were insufficient to achieve the goals
    of the investigation and prove the extent of the
    22
    conspiracy.     For   example,  they   explained  that
    confidential informants were unable to identify the
    higher-ups of the conspiracy. The traditional sources
    also failed to uncover the conspiracy’s cocaine source
    and the extent to which the coconspirators distributed
    it for resale.
    
    Id. (citation omitted).
    The   government      has     satisfied      its     burden    here.      In
    Eccleston’s case, as in Wilson, the government has presented a
    detailed     affidavit     concerning      “whether       ‘normal    investigative
    procedures have been tried and have failed or reasonably appear
    to be unlikely to succeed if tried or to be too dangerous.’”
    
    Id. at 281
    (quoting 18 U.S.C. § 2518(3)).                   The forty-five page
    Affidavit in Support of an Application for an Order Authorizing
    the Interception of Wire Communications was submitted by FBI
    Special Agent Mark E. James to a district judge on March 3,
    2011.     The Affidavit details the normal investigative techniques
    used     during     the    course    of    the     investigation,       including:
    physical     surveillance,         confidential      informants,       cooperating
    sources,      undercover      agents,          interviews     of     subjects    or
    associates,       search   warrants,      pen    registers/toll      records,   and
    trash cover.        For each investigative category, James set forth
    whether the normal techniques had been used; how well they had
    worked; and whether there was additional information needed for
    the investigation that was unavailable from further use of that
    technique.     He also was forthcoming about which techniques, such
    23
    as physical surveillance, had been fruitful and would continue
    to be used going forward.                  J.A. 1177 (discussing success with
    physical surveillance, but observing that heavy foot traffic in
    the area, as well as the targets’ use of different vehicles
    registered in others’ names, thwarted efforts at identification
    of additional conspirators).                For techniques that had not been
    used, such as grand jury subpoenas, he explained why they would
    not   be   useful    or      would    be    counterproductive.           J.A.    1177-78
    (explaining     that         the     use    of     subpoenas     would     alert     the
    conspirators to the investigation and might cause them to flee
    or to threaten potential witnesses).                   We find that the level of
    specificity in the Affidavit sufficient to meet the government’s
    burden, and thus the issuing court did not abuse its discretion
    in authorizing the wiretap, and the district court did not err
    in denying Eccleston’s motion to suppress.
    B.
    Eccleston separately contends that there was insufficient
    and   “misleading”           probable       cause     to    support      the     wiretap
    application.        “The probable cause required for issuance of a
    wiretap order is the same as that which is necessary to obtain
    the issuance of a search warrant.”                     United States v. Talbert,
    
    706 F.2d 464
    , 467 (4th Cir. 1983).                         And the probable cause
    determination       is   a   “practical,          common-sense   decision       whether,
    given all the circumstances set forth in the affidavit before
    24
    [the judge] . . . there is a fair probability that contraband or
    evidence       of     a    crime      will    be    found     in    a    particular     place.”
    Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983).                              Courts look to the
    “totality-of-the-circumstances” in making their decisions.                                    
    Id. Reviewing courts
         “must        accord      great          deference       to    the
    magistrate’s assessment of the facts presented to him.”                                  United
    States v. Montieth, 
    662 F.3d 660
    , 664 (4th Cir. 2011) (internal
    quotation marks and citation omitted).
    Here, given the nature and specificity of the information
    in the Affidavit, we find that there was probable cause to grant
    the wiretap application.                    James stated that the facts set forth
    in the Affidavit were based in part on his personal knowledge
    and in part on information and belief.                         He based his information
    and belief on, among other things, reports received from other
    field    agents           and   law    enforcement          officials,         his   review    of
    various telephone records and consensually recorded interviews,
    his review of evidence, and debriefings.                                 Information from a
    number        of     confidential           sources     was    incorporated          into     the
    Affidavit          where    specified.          The     Affidavit        set    forth   several
    detailed, specific facts to support the existence of probable
    cause to believe that several individuals, known and unknown,
    were engaged in a conspiracy to distribute cocaine and cocaine
    base     in        Kentland.          For     example,        the       Affidavit    discussed
    controlled           purchases         of     crack      cocaine          carried       out    by
    25
    confidential            sources       at      the    direction       of    law     enforcement.
    Moreover, it set forth specific facts suggesting that there was
    probable cause to believe that the target phone numbers would
    yield information concerning the alleged drug conspiracy.                                        For
    example, the Affidavit included excerpts from wiretaps executed
    earlier      in     the    investigation,            and    also    described       information
    obtained      from        pen    registers          concerning       numbers      known     to    be
    associated         with    the     conspiracy.             Because     there      was     probable
    cause   to        authorize       the      wiretaps,       the   district        court    did    not
    abuse       its    discretion           in    refusing      to     suppress       the    evidence
    obtained from the wiretaps.
    C.
    Finally, Eccleston argues that the district court erred by
    denying him a Franks hearing.                         In particular, he alleges that
    two of the five confidential sources whose information formed
    part    of        the     basis       of     James’      Affidavit        were     engaging       in
    unauthorized drug dealing activity and that one of these two
    informants          was     killed           during      the     unauthorized            activity.
    Moreover, Eccleston contends that “the task force knew or should
    have known that the lead defendant [Whitehurst] was a murder
    suspect and had an outstanding warrant for his arrest.”                                    Opening
    Br.    of    Appellant          25.          Eccleston      faults    the     government         for
    failing to include this information in the Affidavit and argues
    26
    that     the       district     court   would     have   denied     the    wiretap
    application had the information been included.
    The Supreme Court held in Franks that,
    where the defendant makes a substantial preliminary
    showing   that   a   false  statement  knowingly   and
    intentionally, or with reckless disregard for the
    truth, was included by the affiant in the warrant
    affidavit, and if the allegedly false statement is
    necessary to the finding of probable cause, the Fourth
    Amendment requires that a hearing be held at the
    defendant’s 
    request. 438 U.S. at 155-56
    .              In addition to false statements, “Franks
    protects against omissions that are designed to mislead, or that
    are made in reckless disregard of whether they would mislead,
    the magistrate.”             United States v. Colkley, 
    899 F.2d 297
    , 301
    (4th Cir. 1990) (emphasis deleted).
    This Court reviews the legal determinations underlying a
    district court’s denial of a Franks hearing de novo, and its
    factual findings for clear error.                 United States v. Allen, 
    631 F.3d 164
    , 171 (4th Cir. 2011).                 To warrant a Franks hearing, a
    defendant’s preliminary “showing ‘must be more than conclusory’
    and should include affidavits or other evidence to overcome the
    ‘presumption of [the warrant’s] validity.’”                    United States v.
    Clenney, 
    631 F.3d 658
    , 663 (4th Cir. 2011) (quoting 
    Franks, 438 U.S. at 171
    ).       Where    a   defendant    “rel[ies]   on   an    omission,
    rather      than    on   a    false   affirmative    statement,”    his    “burden
    increases yet more.”             United States v. Tate, 
    524 F.3d 449
    , 454
    27
    (4th Cir. 2008).      “[M]erely showing an intentional omission of a
    fact     from   a   warrant     affidavit      does    not   fulfill        Franks’
    requirements.”      
    Id. at 455.
          Rather, “[t]o satisfy the Franks’
    intentional or reckless falsity requirement for an omission, the
    defendant must show that facts were omitted ‘with the intent to
    make, or in reckless disregard of whether they thereby made, the
    affidavit misleading.’”        
    Id. (quoting Colkley,
    899 F.2d at 300).
    Here, Eccleston offers only a conclusory showing that a
    Franks    hearing    would     be   appropriate.         Despite     Eccleston’s
    insistence that the lead defendant in the conspiracy was subject
    to an outstanding warrant, he has presented no documentary proof
    to that effect.      And though he questions the reliability of the
    information in James’ Affidavit, he does not demonstrate that
    Special Agent James had any intent to mislead the court.                        See
    
    Colkley, 899 F.2d at 301
    (“Here Johnson made no showing, and the
    district court possessed no evidence, that agent Moore had the
    requisite intent to mislead.”).             While some courts have inferred
    intent where “the omitted material was ‘clearly critical’ to the
    finding of probable cause,” 
    id., that showing
    cannot be made
    here.      James’    Affidavit      relied     on    information     from    three
    additional      confidential    sources      aside    from   those    challenged
    here.     At least one of these additional confidential sources
    participated in controlled purchases of crack cocaine at the
    direction of law enforcement.          Furthermore, the Affidavit relied
    28
    on     reports    from     law        enforcement       officials,        review   of    pen
    register and documentary evidence, and personal knowledge.
    Eccleston points to two other pieces of information missing
    from the Affidavit:              the unauthorized criminal activity by one
    of the confidential sources and the murder and unauthorized drug
    dealing activity of another of the confidential sources.                                 This
    information        is      not        “critical”        to     the    probable          cause
    determination.          We note first that we cannot with certainty say
    that the information with which Eccleston takes issue was not
    contained in the Affidavit, because much of the Affidavit is
    redacted.        Even so, the Affidavit stated that the information
    from    the    sources     had    been       independently      corroborated       through
    other investigative techniques.                    And though it did not go into
    detail, the Affidavit also acknowledged that one confidential
    source    died     during     the       course     of    the    investigation.           The
    information about the killing and the unauthorized drug dealing
    was    later     disclosed       to    the    district       court   in    Special      Agent
    Garrett Swick’s “Affidavit in Support of Criminal Complaint and
    Arrest Warrants.”
    Even      without     information           about       the    murder       or     the
    unauthorized illegal activity, there is sufficient, independent
    probable cause outlined in the James’ Affidavit for the issuance
    of the wiretap warrant.                We find that Eccleston has not made a
    29
    preliminary showing sufficient to warrant a Franks hearing.                          The
    district court properly denied his request.
    IV.
    Eccleston argues that the district court erred in admitting
    evidence     obtained   from     his   cell      phone.       In   particular,       he
    contends that the warrantless search of his cell phone at the
    time of his arrest violated the Fourth Amendment, and that the
    later application for and issuance of a search warrant for the
    phone did not cure the violation.
    “This Court reviews evidentiary rulings for an abuse of
    discretion, and ‘will only overturn an evidentiary ruling that
    is arbitrary and irrational.’”             United States v. Cone, 
    714 F.3d 197
    ,   219   (4th   Cir.   2013)    (citation          omitted).      “A    court   has
    abused its discretion if its decision ‘is guided by erroneous
    legal principles’ or ‘rests upon a clearly erroneous factual
    finding.’”      United States v. Johnson, 
    617 F.3d 286
    , 292 (4th
    Cir. 2010) (citation omitted).
    A.
    The United States Supreme Court recently held that, upon
    lawful arrest, “officers must generally secure a warrant before
    conducting” a search of a cell phone.                   Riley v. California, --
    U.S. ---, 
    134 S. Ct. 2473
    , 2485 (2014).                     There is no dispute
    that    Riley   applies     to     this        case.       However,        while    “the
    30
    retroactive        application          of    a    new     rule     of    substantive         Fourth
    Amendment law raises the question whether a suppression remedy
    applies[,] it does not answer that question.”                                 Davis v. United
    States, --- U.S. ---,131 S. Ct. 2419, 2431 (2011) (citing United
    States v. Leon, 
    468 U.S. 897
    , 906 (1984)).                                Rather, “[w]hether
    the    exclusionary            sanction           is     appropriately        imposed         in     a
    particular        case    . . .     is       an    issue    separate       from     whether        the
    Fourth Amendment rights of the party seeking to invoke the rule
    were    violated         by    police        conduct.”         
    Leon, 468 U.S. at 907
    (internal      quotation          marks       and        citation        omitted);      see     also
    Davis,131 S. Ct. at 2431 (2011) (“Retroactive application does
    not    . . .      determine       what       ‘appropriate           remedy’      (if    any)       the
    defendant should obtain.”).
    The exclusionary rule “cannot be expected, and should not
    be    applied,      to    deter     objectively            reasonable        law     enforcement
    activity.”        
    Leon, 468 U.S. at 919
    ; see 
    id. (“If the
    purpose of
    the exclusionary rule is to deter unlawful police conduct, then
    evidence obtained from a search should be suppressed only if it
    can be said that the law enforcement officer had knowledge, or
    may    properly     be        charged    with          knowledge,    that     the      search      was
    unconstitutional          under     the       Fourth       Amendment.”       (quoting         United
    States v. Peltier, 
    422 U.S. 531
    , 542 (1975))); see also Davis,
    131    S.   Ct.    at     2431.         Thus,      “[b]ecause        suppression          would     do
    nothing to deter police misconduct” in cases where “the police
    31
    conduct a search in compliance with binding precedent that is
    later overruled,” and “because [suppression] would come at a
    high    cost   to    both     the     truth    and      the   public         safety,    . . .
    searches conducted in objectively reasonable reliance on binding
    appellate precedent are not subject to the exclusionary rule.”
    
    Davis, 131 S. Ct. at 2423-24
    .
    At   the     time    of   Eccleston’s            arrest,     binding         appellate
    precedent from this Circuit permitted the warrantless search of
    his cell phone incident to his arrest.                           See United States v.
    Murphy, 
    552 F.3d 405
    , 410-12 (4th Cir. 2009).                            In Murphy, the
    defendant argued that the warrantless search of his cell phone
    was    unlawful     “because     there     was     no    evidence       of    the     volatile
    nature of the cell phone’s information,” and also because the
    search “was not contemporaneous with his arrest.”                              
    Id. at 411.
    We    rejected     the     defendant’s       arguments,       observing         that    “this
    Court ha[d] held on at least two prior occasions, albeit in
    unpublished opinions, that officers may retrieve text messages
    and    other      information       from     cell       phones    and        pagers    seized
    incident to an arrest.”             
    Id. (citing United
    States v. Young, 278
    F. App’x 242, 245-46 (4th Cir. 2008), cert. denied, 
    555 U.S. 1006
    (2008), and United States v. Hunter, No. 9604259, 
    1998 WL 887289
    , at *3 (4th Cir. Oct. 29, 1998)).                           This Court further
    observed that “the initial search of the cell phone occurred in
    Murphy’s    presence       and   at    his     direction,”        and    another        search
    32
    occurred      at    the    police   station       “during    the       course    of   the
    inventory search.”           
    Id. at 412.
            Accordingly, we held that the
    district court committed no error when it refused to suppress
    the contents of the defendant’s cell phone.
    Prior    to    the    Supreme    Court’s     decision       in    Riley,    Murphy
    served as binding appellant precedent permitting the search of
    Eccleston’s cell phone incident to his arrest without a warrant.
    Because    the     search     was   “conducted      in    objectively       reasonable
    reliance    on     [then-]binding       appellate        precedent,”      it    is    “not
    subject to the exclusionary rule.”                 
    Davis, 131 S. Ct. at 2423
    -
    24.   We therefore hold that the district court did not abuse its
    discretion in refusing to suppress the evidence obtained from
    Eccleston’s cell phone.
    B.
    Regardless of the applicability of Murphy at the time of
    Eccleston’s arrest, and as the district court held, the same
    information was later lawfully obtained by the FBI pursuant to a
    search warrant.           Eccleston did not challenge the validity of the
    warrant below.        He argues here that the district court did not
    address whether the initial search tainted the warrant.
    It is well established that where the government can show
    “by   a    preponderance       of     the    evidence      that    the    information
    ultimately or inevitably would have been discovered by lawful
    means . . . then the deterrence rationale [for the exclusionary
    33
    rule] has so little basis that the evidence should be received.”
    Nix    v.    Williams,    
    467 U.S. 431
    ,       444   (1984);     see    also    United
    States      v.   Whitehorn,      
    813 F.2d 646
    ,      650   n.4   (4th    Cir.    1987)
    (“[T]he premise of the inevitable discovery doctrine is that the
    illegal search played no real part in discovery of incriminating
    evidence.        Only then, if it can be shown that the taint did not
    extend to the second search, would the product of the second
    search be admissible.”); Simmons v. Poe, 
    47 F.3d 1370
    , 1378 (4th
    Cir.    1995)       (finding,    in    the        42    U.S.C.     § 1983   context,        that
    defendant’s challenge to the validity of a warrant was meritless
    where       there    “existed    sufficient             independent      evidence      in    the
    warrant       application       to    justify          the   magistrate’s        finding      of
    probable cause”).
    Here, the district court explicitly stated:                             “[T]here’s no
    indication at all that the alleged unlawful search, if it was an
    unlawful search, . . . tainted the subsequent application for a
    search warrant.          In fact, [the government] read portions of the
    application.         It had no reference at all to what occurred back
    on” the date of Eccleston’s arrest.                       J.A. 626; see also J.A. 622
    (discussing         contents     of        warrant       application).           We     agree.
    Eccleston did not challenge the warrant on any grounds, and does
    not meaningfully do so before this Court.                           In fact, when asked
    by    the    district     court       if    the        warrant     had   been    challenged,
    Eccleston’s counsel stated:                 “I’m not trying to say that because
    34
    of what [Grims] did everything after that is tainted, because I
    think at some point the government realized, yeah, we do need a
    warrant.     And so, they went and they got it, and they did the
    right   thing.”       J.A.     623.     Because       the    government      presented
    evidence that the search did not taint the warrant, and because
    Eccleston presented no evidence or arguments to the contrary,
    the second search of Eccleston’s cell phone pursuant to the FBI
    warrant was not tainted by the initial warrantless search.                            The
    district     court    did    not    abuse    its     discretion     by    refusing     to
    suppress the evidence obtained from the search of Eccleston’s
    cell phone.
    V.
    Eccleston      argues    that    the       district   court’s      sequestration
    order was violated due to cohabitation of witnesses in a holding
    cell, which in turn undermined his Fifth Amendment due process
    rights.      As noted above, we review a trial court’s evidentiary
    rulings for abuse of discretion.                 
    Cone, 714 F.3d at 219
    .
    This    Court    has     not     directly       addressed       this    type     of
    challenge to a sequestration order, but case law from the First
    and   Eleventh    Circuits      is    instructive.           In    United    States   v.
    Sepulveda,     the     First       Circuit       stated     that    cohabitation      of
    witnesses did not equate to an automatic violation of the trial
    court’s sequestration order.                
    15 F.3d 1161
    , 1176-77 (1st Cir.
    35
    1993).   In that case, the district court granted the defendants’
    motion for sequestration.              The motion did not “indicat[e] to the
    court    what        level     of     restraint     [the      defendants]      thought
    appropriate.”         
    Id. at 1176.
            Accordingly, “[t]he court granted
    the motion in its simplest aspect, directing counsel ‘to monitor
    sequestration’ and ordering ‘that witnesses who are subject to
    [the court’s] order are not to be present in the courtroom at
    any time prior to their appearance to render testimony.’”                             
    Id. The court
    additionally admonished witnesses not to discuss their
    testimony    with      other     witnesses.        
    Id. The defendants
         later
    sought to vacate their convictions based, in part, on alleged
    violations      of     the     sequestration      order.           In   affirming    the
    district court’s denial of relief, the First Circuit indicated
    that “[t]he crux of sequestration . . . is communication between
    witnesses,      not    shared       accommodations      or   geographic     proximity.
    . . .    We assume that witnesses, like all other persons subject
    to court orders, will follow the instructions they receive.”
    
    Id. at 1177.
             And “if [the defendants] desired a more vigorous
    sequestration regime, such as an edict that would have banned
    cohabitation or other contact amongst prisoner-witnesses, they
    had a duty to ask for it.”               
    Id. Where the
    defendants failed to
    do so, and where their claims of the prejudice from the alleged
    violation    of      the     sequestration      order    were   “speculative,”        the
    36
    district         court       did     not        err      in        refusing     to     vacate      the
    convictions.        
    Id. The Eleventh
    Circuit faced a more extreme situation.                                         In
    United     States      v.     Eyster,          at   least      two    witnesses        admitted    to
    discussing testimony with each other while confined together in
    jail during trial.                 
    948 F.2d 1196
    , 1210 (11th Cir. 1991).                           The
    circuit      court       found        a    violation           of     the     district       court’s
    sequestration order, and noted that “both the district court and
    the government were lax in upholding the sequestration rule.”
    
    Id. at 1211.
                However, because the district court had allowed
    cross examination on the issue, the Eleventh Circuit held that
    the   district         court       had     sufficiently             cured     the    violation     by
    “giving the jury the opportunity to evaluate [the witnesses’]
    credibility.”            
    Id. Accordingly, the
       district       court    had   not
    abused its discretion in denying the appellants’ motion for a
    mistrial.        
    Id. We need
          not     rule       on    the      entire       universe       of     potential
    sequestration violations in order to address Eccleston’s claims.
    There is no admission or direct allegation in this case, as
    there      was    in     Eyster,          that      any       of     the    witnesses        actually
    discussed testimony while confined together.                                  Thus, we address
    our   inquiry       to      whether        cohabitation             alone     is     sufficient    to
    violate a district court’s sequestration order.                                    With respect to
    this question, we find the First Circuit’s analysis in Sepulveda
    37
    persuasive.        We hold today that the cohabitation of witnesses in
    a     holding     cell   is     ordinarily      insufficient         to    constitute     a
    violation of a district court’s sequestration order where the
    defendant has failed to request a sequestration order explicitly
    banning      cohabitation       of     witnesses,    and    where         the    defendant
    presents only speculation that a sequestration order has been
    otherwise violated.
    Evaluated in this light, Eccleston’s challenge must fail.
    Eccleston moved for sequestration of witnesses without making
    any request for witnesses to be housed separately.                          See ECF No.
    105, United States v. Xavier Eccleston, Case No. AW-11-CR-0567
    (filed Jan. 21, 2012) (Motion for Sequestration of Witnesses).
    The district court granted the motion without including any such
    requirement.          The     court’s    order    provided:          “the       court   will
    sequester the witnesses and instruct them to remain outside the
    courtroom and not discuss their testimony with one another and
    we will hold the lawyers responsible for that.”                      J.A. 179.
    Beyond cohabitation, Eccleston points to no evidence that
    the sequestration order was otherwise violated.                            On the third
    day     of   trial,      Eccleston’s      counsel,       expressed         sequestration
    concerns to the court citing certain witnesses’ cohabitation, as
    well    as   having      seen    two    witness   who    had    not       yet    testified
    talking      in    the   hallway.         J.A.    577.         The    court       directed
    government counsel to notify the witnesses and the marshal’s
    38
    office once more that the witnesses were not to discuss their
    testimony with one another, but added that it was “not sure what
    [defense counsel] is alluding to when he says [the witnesses]
    were    talking.        I   mean,      they    could       have    been    talking     about
    anything.”          J.A. 578.    The court stated further that it had not
    heard     any       “representation       that      they’re        talking     about       the
    testimony.”          J.A. 578.    Defense counsel responded “I can’t make
    that representation to the court because I don’t know that, Your
    Honor.”        J.A. 578.         The court then stated that it found no
    violation of the sequestration order.                       At no point during this
    exchange       or    otherwise    did     defense      counsel      request     that       the
    cooperating witnesses be physically separated from one another
    in the holding cells.
    Throughout the remainder of the trial, the court admonished
    some    of    the    witnesses,     but    not      all,    that    they     were    not    to
    discuss their testimony with one anyone.                           Eccleston’s counsel
    inquired       of    some   witnesses,        but    not    all,    whether     they       had
    discussed the trial with others.                    They testified that they had
    not.     Government counsel made similar inquiries.                        The witnesses
    denied       speaking    with    one    another      about    their       testimony,       and
    indicated that the holding cells were too loud and too public to
    permit a private conversation.                     Some witnesses testified that
    they were also eventually physically separated from one another.
    39
    In sum, Eccleston did not request physical separation of
    witnesses    in       his   motion    or   in     his   verbal    exchange    with   the
    court, and cohabitation alone did not violate the sequestration
    order.     In any event, Eccleston failed to present any evidence
    to the court that the witnesses had in fact discussed their
    testimony.       The court repeatedly admonished witnesses to refrain
    from discussing their testimony with other witnesses, and also
    directed        the     government         to      so    advise     its      witnesses.
    Additionally, on cross examination, the witnesses who were asked
    uniformly testified that they had not discussed their testimony
    with one another.           Bearing all of this in mind, we find that the
    district court did not abuse its discretion in ruling that there
    had been no violation of the sequestration order.
    VI.
    Eccleston argues that Federal Rule of Evidence 404(b) was
    violated when a case agent made reference to Eccleston’s parole
    and   probation       officer,   thereby          causing   substantial      prejudice.
    He    further     contends     that    the      district    court    compounded      the
    problem by its “refusal to give a curing instruction.” 9                        Opening
    Br. of Appellant 50.
    9Eccleston seems to abandon his final point about
    aggravation in his reply brief.   See Reply Br. of Appellant 21
    (“It was difficult if not impossible for the defense to recover
    (Continued)
    40
    Rule       404(b)      “prevents        the      government         from     using     a
    defendant’s        prior      bad    conduct       to   suggest      his    propensity       to
    commit a crime.”              United States v. Campbell, 
    935 F.2d 39
    , 44
    (4th Cir. 1991).              We review a district court’s admission of
    evidence of prior bad acts for abuse of discretion.                                     United
    States v. McBride, 
    676 F.3d 385
    , 395 (4th Cir. 2012).                              “While we
    have   reversed        convictions       in    cases      where      evidence      of     other
    crimes      had      been   improperly        presented,        in    those       cases     the
    inadmissible evidence was not only prejudicial, but had been
    purposely      introduced       by    the     prosecution.”           United      States     v.
    Johnson, 
    610 F.2d 194
    , 197 (4th Cir. 1979); see also 
    Campbell, 935 F.2d at 44
    (“Certainly it was not error for the district
    court to fail to exclude evidence elicited by [the defendant’s]
    own counsel.”).
    We     find     that     the    district         court   did        not    abuse     its
    discretion in allowing the testimony at issue.                               As discussed
    above,      the    district     court       granted      Eccleston’s        404(b)      Motion
    prior to trial, thereby requiring the government to notify him
    of   its    intent     to     introduce     evidence      of    uncharged         conduct    or
    prior convictions.            In setting forth his 404(b) argument before
    from the impression left that the Appellant was a recidivist,
    because the agent was the last witness called and any curing
    instruction would have only highlighted the point.”).
    41
    this Court, Eccleston states that a case agent made reference to
    Eccleston’s   parole    and   probation   officer    on   the   last    day   of
    trial.    His challenge is aimed at the testimony from James,
    specifically the following exchange between Eccleston’s counsel
    and James:
    Q.     Well you    knew he was staying there [at the
    residence   where Eccleston was living], didn’t
    you?
    A.     We suspected that he was staying there based on
    some   physical   surveillance  and   records,  I
    believe, we got from parole and probation. Yes.
    J.A. 977.     This testimony, which was elicited by Eccleston’s
    counsel, does not implicate Rule 404(b).            See 
    Campbell, 935 F.2d at 44
    .    Moreover, although Eccleston faults the district court
    for its “refusal” to give a curative instruction, we note that
    he never requested such an instruction at the time. 10                 Further,
    when discussing the jury instructions after the conclusion of
    all testimony, Eccleston noted his exception to instructions 21,
    22, 36, 37, 38, 39, and 40.          A review of those instructions
    reveals that none addresses prior bad acts or uncharged conduct.
    Given that the testimony was elicited by Eccleston’s counsel,
    and given that there was no objection to the testimony, we find
    10  Eccleston erroneously states in his opening brief that a
    bench conference followed and addressed potential prejudice
    stemming from James’ testimony.      Rather, an unrelated bench
    conference occurred prior to James’ testimony.
    42
    that    the   district    court   did        not   abuse    its   discretion       in
    permitting the testimony.
    We stress that the fact that Eccleston’s counsel elicited
    the testimony is not dispositive.              Rather, we view that fact in
    conjunction with the reality that Eccleston’s counsel failed to
    request a curative instruction, the fact that the government did
    not later refer to the challenged testimony in an attempt to
    establish     Eccleston’s   general      character,    and    the    overwhelming
    evidence      presented     by    the         government.           Under        these
    circumstances, we cannot find that the district court abused its
    discretion in permitting the testimony.                Even if the district
    court did abuse its discretion, we find that the weight of the
    government’s case against Eccleston rendered any error harmless.
    See, e.g., United States v. Chin, 
    83 F.3d 83
    , 88 (4th Cir. 1996)
    (“Furthermore,     any    error   was    at    most   harmless      error.        The
    evidence of Chin’s guilt provided in government videotapes and
    audio recordings was overwhelming.”).
    VII.
    Eccleston   argues    that       the    evidence     presented       by    the
    government did not support his conviction of the charges in the
    indictment.      He contends that the jury note at issue in this
    case demonstrates that the jurors did not think he was involved
    in the crack cocaine aspect of the conspiracy.                      Moreover, he
    43
    argues that the district court’s response to the jury note and
    subsequent         amendment     of     the    verdict           form       resulted        in       an
    impermissible         constructive       amendment             of    the     indictment           and
    allowed the government “to have Mr. Eccleston convicted of a
    conspiracy to distribute cocaine or crack; when he was charged
    with conspiracy to distribute cocaine and crack.”                                     Opening Br.
    of Appellant 14 (emphasis added).
    “We    review    a     district    court’s         decision          to    respond       to    a
    jury’s question, and the form of that response, for an abuse of
    discretion.”          United States v. Foster, 
    507 F.3d 233
    , 244 (4th
    Cir.    2007).         And     “in    responding          to     a       jury’s       request    for
    clarification on a charge, the district court’s duty is simply
    to respond to the jury’s apparent source of confusion fairly and
    accurately without creating prejudice.”                          United States v. Smith,
    
    62 F.3d 641
    , 646 (4th Cir. 1995).                         Reversal is warranted only
    where    the       district    court’s       response          “is       prejudicial       in    the
    context of the record as a whole.”                      
    Foster, 507 F.3d at 244
    .
    “A    constructive       amendment          to    an    indictment             occurs     when
    either       the    government       (usually           during       its    presentation             of
    evidence and/or its argument), the court (usually through its
    instructions to the jury), or both, broadens the possible bases
    for    conviction       beyond       those    presented             by     the    grand     jury.”
    
    Foster, 507 F.3d at 242
    .                 Constructive amendments are “fatal
    variances      because        ‘the    indictment         is     altered          to    change     the
    44
    elements   of    the   offense   charged,     such    that   the    defendant    is
    actually convicted of a crime other than that charged in the
    indictment.’”      
    Id. (quoting United
    States v. Randall, 
    171 F.3d 195
    , 203 (4th Cir. 1999)).          We have stated that “[c]onstructive
    amendments are error per se and, given the Fifth Amendment right
    to be indicted by a grand jury, ‘must be corrected on appeal
    even when not preserved by objection.’”                    
    Id. (quoting United
    States v. Floresca, 
    38 F.3d 706
    , 714 (4th Cir. 1994) (en banc)).
    In determining whether an amendment has occurred, “it is the
    broadening itself that is important—nothing more.”                  
    Floresca, 38 F.3d at 711
    .      “The key inquiry is whether the defendant has been
    tried on charges other than those made in the indictment against
    him.”   
    Foster, 507 F.3d at 242
    -43; see also 
    Floresca, 38 F.3d at 710
      (“The     court’s   instruction       . . .    was    more   than   just   a
    misstatement of the law applicable to the indicted offense; it
    stated a distinct, unindicted offense.               It was by no means only
    a slight defect in the charge [that] could be cured by other
    circumstances.”           (internal     quotation      marks       and    footnote
    omitted)).
    The district court’s amendment of the jury verdict form did
    not create a variance.           The fourth superseding indictment uses
    the conjunctive term “and.”           The thrust of Eccleston’s argument
    is that the district court’s response to the jury note resulted
    in a constructive amendment because it altered the language of
    45
    the verdict form from permitting only a finding of conspiracy to
    distribute powder and crack cocaine, to instead allowing the a
    finding of conspiracy to distribute powder and/or crack cocaine.
    But this change does not appear so starkly in the record.     The
    original verdict form read:
    How do you find the defendant, Xavier Eccleston, as to
    Count   One  of  the  Fourth   Superseding  Indictment
    (conspiracy to distribute and possess with intent to
    distribute cocaine and/or crack cocaine), guilty or
    not guilty?
    Guilty ______          Not Guilty ______
    If you find the defendant not guilty of Count One,
    proceed to Question Two below.       If you find the
    defendant, Xavier Eccleston, guilty as to Count One,
    how do you find as to the amount of cocaine
    attributable to the defendant, Xavier Eccleston?
    J.A. 1042 (emphasis added).   The revised form read:
    How do you find the defendant, Xavier Eccleston, as to
    Count   One  of  the  Fourth   Superseding  Indictment
    (conspiracy to distribute and possess with intent to
    distribute cocaine and/or crack cocaine), guilty or
    not guilty?
    Guilty ______          Not Guilty ______
    If you find the defendant not guilty of Count One,
    proceed to Question Two below.      If you find the
    defendant, Xavier Eccleston, guilty as to Count One,
    which drug do you unanimously agree was involved in
    the conspiracy?
    Powder Cocaine _______
    Crack Cocaine _______
    Both powder cocaine and crack cocaine ______
    46
    J.A. 1045 (underlined text appears in original indictment, and
    bolded portion added to revised verdict form).               Aside from the
    bolded text above, the two verdict forms are identical.
    As is clear from the text above, the verdict form always
    provided a disjunctive option to the jury.                 This makes sense
    because “[i]t is well settled that conjunctive indictment . . .
    permits disjunctive consideration of guilt.”               United States v.
    Champion, 
    387 F.2d 561
    , 563 n.6 (4th Cir. 1967).                  The Supreme
    Court has stated that “[t]he general rule is that when a jury
    returns a guilty verdict on an indictment charging several acts
    in the conjunctive, . . . the verdict stands if the evidence is
    sufficient with respect to any one of the acts charged.”                 Turner
    v. United States, 
    396 U.S. 398
    , 420 (1970); see also United
    States     v.   Montgomery,   
    262 F.3d 233
    ,     242   (4th   Cir.    2001)
    (reiterating      that   “[w]here    a     statute    is    worded   in     the
    disjunctive, federal pleading requires the Government to charge
    in the conjunctive.        The district court, however, can instruct
    the jury in the disjunctive” (citation omitted)).
    Indeed, this Circuit rejected an argument identical to that
    advanced by Eccleston, albeit in an unpublished opinion.                    See
    United States v. Davis, 270 F. App’x 236, 242 n.2 (4th Cir.
    2008) (unpublished).       There, we observed that while the statute
    prohibiting distribution of cocaine or cocaine base is written
    in   the    disjunctive,      the   indictment       was   charged   in     the
    47
    conjunctive.          
    Id. The jury
       instructions,       like    the   statute,
    “allowed conviction if either drug was found to be within the
    scope   of    the     conspiracy        in     the   relevant      amount.”       
    Id. We nonetheless
    determined that “this seeming discrepancy does not
    actually     pose     a   meaningful          variance,    and     certainly      does    not
    undermine     Appellants’         convictions.”            
    Id. (citing Turner,
        396
    U.S. at 420).             Similarly, we do not find that the district
    court’s      amendment       of    the        jury   verdict     form      here   posed     a
    meaningful variance.              The amendment simply required the jury to
    specify which drug or drugs were involved in the conspiracy.                              We
    thus hold that the district court did not abuse its discretion
    by amending the verdict form.
    Aside from the verdict form, Eccleston mistakenly contends
    that the district court amended Instruction No. 47 to read in
    the disjunctive.            The district court stated only that it had
    amended the verdict form in order to clarify Instruction No. 47.
    Accordingly,        the      court      provided       a    copy     of    the    existing
    instruction, explained the instruction, and provided a revised
    verdict      sheet.         By    way    of    explanation,        the    district      court
    stated:
    In response to your note, I am clarifying Instruction
    No. 47, a copy of which I am providing to you. . . .
    You may find the defendant guilty of Count One if you
    find that the conspiracy involved powder cocaine or
    crack cocaine or both, but you must be unanimous as to
    which form of cocaine was involved.    I am submitting
    48
    to you a slightly revised verdict form to reflect the
    instruction.
    J.A. 1040.         The instruction itself was originally written in the
    disjunctive,         and       thus        the     court’s          explanation          did     not
    meaningfully alter the instruction.                          See J.A. 1041 (Instruction
    No.   47)    (“The    first         element      which       the    government        must     prove
    beyond a reasonable doubt to establish the offense of conspiracy
    is    that   two     or    more      persons       entered         the    unlawful      agreement
    charged,      which       is   to    distribute          and    possess        with     intent    to
    distribute cocaine or cocaine base.”                         (emphasis added)).
    In    any    event,     as     discussed         above,      the       statute    at    issue
    prohibits the distribution of cocaine or cocaine base in the
    disjunctive.          See       21    U.S.C.           § 841.        Accordingly,         it     was
    permissible for the government to charge in the conjunctive and
    for the district court to instruct the jury in the disjunctive.
    See 
    Montgomery, 262 F.3d at 242
    ; Davis, 270 F. App’x at 242 n.2.
    The    district       court       thus      did        not   abuse       its     discretion       by
    clarifying Instruction No. 47.
    VIII.
    Eccleston argues that the district court erred in refusing
    to give the jury an instruction on multiple conspiracies or an
    instruction        stating          that    mere        presence         or     association      is
    insufficient for a conviction of a conspiracy charge.                                     Similar
    49
    to his arguments about constructive amendment of the indictment,
    he     believes     that   the    jury       note    at    issue       in   this     case
    demonstrates that the jurors did not think he was involved in
    the crack cocaine aspect of the conspiracy.
    We review a district court’s decision to refuse to give a
    jury    instruction    for   abuse      of   discretion.         United     States    v.
    Passaro, 
    577 F.3d 207
    , 221 (4th Cir. 2009).                     The refusal to give
    a requested instruction constitutes reversible error “only when
    the    instruction    ‘(1)   was     correct;       (2)   was    not    substantially
    covered by the court’s charge to the jury; and (3) dealt with
    some point of the trial so important, that failure to give the
    requested instruction seriously impaired the defendant’s ability
    to conduct his defense.’”           
    Id. (quoting United
    States v. Lewis,
    
    53 F.3d 29
    , 32 (4th Cir. 1995)).                    “Even if these factors are
    met,     however,     failure      to    give       the   defendant’s        requested
    instruction is not reversible error unless the defendant can
    show that the record as a whole demonstrates prejudice.”                           United
    States v. Bartko, 
    728 F.3d 327
    , 343 (4th Cir. 2013).
    A.
    Eccleston argues that the jury’s note shows that the jury
    did not think he was selling crack cocaine.                      Even if this were
    true, the jury properly could have found Eccleston guilty of
    conspiracy    to     distribute      either     form      of    the    drug,   as    was
    50
    discussed above.       Thus, a multiple conspiracy charge would not
    have cured the problem that he attributes to the jury’s note.
    An instruction on multiple conspiracies is necessary only
    “‘if such an instruction is supported by the facts.’                        Hence,
    ‘[a] multiple conspiracy instruction is not required unless the
    proof at trial demonstrates that appellants were involved only
    in   separate   conspiracies   unrelated       to     the    overall   conspiracy
    charged in the indictment.’”       
    Bartko, 728 F.3d at 344
    (citation
    omitted).       Moreover,   failure     to     give    the    instruction      when
    required “is not reversible error unless a defendant can show
    that this caused him substantial prejudice.”                   United States v.
    Tipton, 
    90 F.3d 861
    , 883 (4th Cir. 1996).               Substantial prejudice
    exists   when   “the   evidence   of    multiple       conspiracies”      is     “so
    strong in relation to that of a single conspiracy that the jury
    probably would have acquitted on the conspiracy count had it
    been given a cautionary multiple-conspiracy instruction.”                  
    Id. Moreover, we
    have held that “[w]hether there is a single
    conspiracy or multiple conspiracies depends upon the overlap of
    key actors, methods, and goals.”            United States v. Stockton, 
    349 F.3d 755
    , 762 (4th Cir. 2003).              On the other hand, “[a] single
    conspiracy exists where there is ‘one overall agreement,’ or
    ‘one general business venture.’”             United States v. Leavis, 
    853 F.2d 215
    , 218 (4th Cir. 1988).               There need not be continuous
    activity to constitute a single conspiracy.                    
    Id. “Our focus
    51
    must be not on the timing of the conspiracy’s operations, but on
    whether it functioned as an ongoing unit.”                     
    Id. at 219.
    Here, there was little to no evidence that Eccleston was
    involved in a separate conspiracy unrelated to that charged in
    the indictment.        Rather, there was testimony that Eccleston was
    involved in a cocaine enterprise that centered around his co-
    defendant, Whitehurst.             Several witnesses identified Eccleston
    as    purchasing     amounts       of   powder    cocaine       in   excess     of     that
    typically     obtained       for   personal      use.      Witnesses        also   placed
    Eccleston in at least two of the drug ring’s stash houses during
    the    sale   of     crack    cocaine.         Additionally,         audio     tapes    of
    wiretapped phone calls detailing sales were played for the jury.
    This evidence points to a single conspiracy.
    B.
    Eccleston      additionally        argues        that     mere       presence     or
    association is insufficient to support a charge of conspiracy.
    He contends that the evidence clearly shows that he was not part
    of the charged conspiracy, and that the jury instead found him
    guilty of conspiracy based solely on his presence in the stash
    houses   or    his    association       with     others    who       were    engaged    in
    illegal activity.
    In explaining why it rejected certain jury instructions,
    the district court noted that Eccleston “had a request for a
    separate instruction on association and presence which the Court
    52
    found    was    already      contained        in     the    conspiracy       instructions.”
    J.A. 995.       We agree.             The court instructed the jury that “the
    government must prove that there was a mutual understanding,
    either      spoken    or     unspoken,        between        two    or     more    people    to
    cooperate with each other to accomplish an unlawful act.”                                   J.A.
    1041    (Jury    Instruction            No.   47).         The     requirement       that    the
    government          prove         a      mutual       understanding               sufficiently
    communicates that both Eccleston and any other person with whom
    he allegedly conspired understood that Eccleston was part of the
    conspiracy.          The    instructions           given     made     clear       that   simple
    presence or association was insufficient for conviction.
    We    hold    that     the        district      court        did    not     abuse     its
    discretion in refusing the requested instructions.
    IX.
    Finally,      Eccleston          challenges         his    sentence.         The     jury
    attributed to him less than 28 grams of crack cocaine, as well
    as between 500 grams and 5 kilograms of powder cocaine to him.
    Eccleston       argues       that       the   district           court     thus     erred    in
    attributing to him for sentencing purposes more than 28 grams of
    crack cocaine to him, and in attributing 16 kilograms of powder
    cocaine.       “We review the sentence imposed by a district court
    under a ‘deferential abuse-of-discretion standard.’                                 We review
    factual     findings        for       clear   error,       and     legal    conclusions       de
    53
    novo.”      United States v. Davis, 
    679 F.3d 177
    , 182 (4th Cir.
    2012) (citation omitted).
    Contrary     to    Eccleston’s   contention,      the   district       court
    attributed less than 28 grams of crack cocaine to him. 11                      See
    J.A.     1078.      The    district     court     then   concluded     that     the
    appropriate base offense level was 34. 12                Next, it raised the
    offense     level    to     36   due    to   an    obstruction    of      justice
    11
    Although Eccleston argued in the district court that no
    amount of crack cocaine should be attributable to him as
    relevant conduct, he does not explicitly advance that argument
    here.   Even if he did, we would review the district court’s
    determination of the drug quantity attributable to him only for
    clear error.   United States v. Randall, 
    171 F.3d 195
    , 210 (4th
    Cir. 1999). For sentencing purposes, a defendant is accountable
    for “all reasonably foreseeable acts and omissions of others in
    furtherance of the jointly undertaken criminal activity,” which
    “occurred during the commission of the offense of conviction, in
    preparation for that offense, or in the course of attempting to
    avoid detection or responsibility for that offense.”        USSG
    § 1B1.3(a)(1)(B); see also United States v. Williams, 
    986 F.2d 86
    , 90 (4th Cir. 1993) (“A defendant convicted of conspiracy
    should be sentenced not only on the basis of his conduct, but
    also on the basis of conduct of coconspirators in furtherance of
    the conspiracy that was known to the defendant or reasonably
    foreseeable to him.”). Here, there is evidence in the record to
    support the district court’s conclusion that it was foreseeable
    to Eccleston that crack cocaine would be sold as part of the
    conspiracy.   Witness testimony established that he was present
    in the stash houses while his coconspirators sold crack cocaine.
    Indeed, Rainey’s testimony established that the conspiracy sold
    crack cocaine at a rate of 3 ounces per day, or 2.25 kilograms
    per month, for 16 months. Given this witness testimony, we find
    that the district court did not clearly err in attributing less
    than 28 grams of crack cocaine to Eccleston.
    12
    This base offense level incorporated both the powder and
    crack cocaine.
    54
    enhancement.         Eccleston’s trial counsel confirmed that the base
    offense level of 34 was correct.                 See J.A. 1076-78 (arguing that
    no crack cocaine at all should be attributed to Eccleston, but
    conceding      that   if   less    than    28    grams    of   crack    cocaine     were
    attributed him, the base offense level would be 34).                          We thus
    reject Eccleston’s argument that the district court erred in
    attributing to him less than 28 grams of crack cocaine.
    In arguing that the district court erred in attributing 16
    kilograms of powder cocaine to him, 13 Eccleston relies primarily
    on   Alleyne    v.    United   States,      133    S.    Ct.   2151    (2013),     which
    expressly overruled the Supreme Court’s decision in Harris v.
    United States, 
    536 U.S. 545
    (2002).                      
    Alleyne, 133 S. Ct. at 2155
    .       Specifically,         the    Court    held    “that       any   fact    that
    increases the mandatory minimum is an ‘element’ that must be
    submitted to the jury.”            
    Id. Here, however,
    the facts at issue
    -- the amount of powder cocaine attributable to Eccleston -- did
    not serve to increase a mandatory minimum, and thus Alleyne does
    13As indicated above, the jury attributed only between 500
    grams and 5 kilograms of powder cocaine to Eccleston.         In
    attributing 16 kilograms to Eccleston for sentencing purposes,
    the district court accepted the government’s analysis of
    Rainey’s testimony.      The government pointed to Rainey’s
    testimony that the drug operation “moved about a kilogram a
    month” during the course of the 16 month conspiracy. J.A. 1066.
    Eccleston does not challenge these calculations except to say
    that the amount is “clearly in excess of the jury’s finding.”
    Opening Br. of Appellant 50.
    55
    not apply.       See United States v. Benn, 572 F. App’x 167, 180
    (4th    Cir.    2014)   (unpublished)     (“The   district   court’s    drug
    quantity       determinations   at      sentencing   did     not   increase
    Appellants’ statutory mandatory minimum sentences, but rather,
    were used to determine their advisory Guidelines ranges (from
    which, in any event, the district court varied downward).”) 14            We
    thus reject Eccleston’s argument that the district court erred
    in its attribution of powder cocaine during sentencing.
    X.
    For the foregoing reasons, the judgment of the district
    court is
    AFFIRMED.
    14   The district court here also varied downward.
    56
    

Document Info

Docket Number: 13-4133

Citation Numbers: 615 F. App'x 767

Filed Date: 7/31/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023

Authorities (47)

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