United States v. Cheese ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4256
TROY LAMONT CHEESE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-97-155)
Submitted: February 4, 1999
Decided: February 16, 1999
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed; remanded for correction of the judgment by unpublished
per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Rebecca A. Betts, United States Attor-
ney, John L. File, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Troy Lamont Cheese (Cheese) appeals his conviction for conspir-
acy to distribute cocaine base, in violation of 21 U.S.C.A. § 846(West Supp. 1998). He was sentenced to 324 months imprisonment
and a $12,500 fine. Cheese challenges his conviction and sentence,
and we affirm.
I
Cheese was indicted on one count of a four-count indictment. He
and several codefendants were named as coconspirators in a conspir-
acy to distribute and possess with intent to distribute cocaine base,
lasting from at least February 1997 to August 1997. The conspiracy
began with conversations between brothers Troy and Wendell Cheese
(Wendell), who lived in Beckley, West Virginia, and their cousin
Dion Cheese (Dion) and his friend, Doug Hill, who lived in New Jer-
sey. Cheese and Wendell encouraged Dion and Hill to bring their
drug business to Beckley. Cheese and Wendell had previously used
Dion as a supplier of drugs, and had taken the drugs back to Beckley
to sell.
Dion and Hill came to Beckley in February 1997, bringing about
seventy grams of cocaine base. Dion and Hill gave a portion of this
amount to Cheese, Wendell, and Christie Brandon, who was Wen-
dell's girlfriend. These three sold the drugs to people they knew in
Beckley, and paid Dion and Hill a percentage of the return. When the
drug supply ran out, approximately every two weeks, Dion, Hill or
Wendell traveled to New York to get more. Each time, thirty to one
hundred grams were brought back to Beckley. After each trip, Cheese
received a portion of the new supply to sell. At some point, Dion
decided that Wendell could not be trusted to sell the drugs because
of his personal use. At that point, Wendell was cut out of the arrange-
2
ment and Brandon took up more of his sales. This procedure was fol-
lowed until Dion and Hill were arrested in late August 1997.
During the course of the conspiracy, Cheese spent eighty-four days
in jail on an unrelated charge. After his release, he continued to sell
drugs and be part of the conspiracy. Law enforcement officers made
several controlled buys from Dion, Brandon, and Wendell. Cheese
was present during one of these transactions.
During an interview with police, Cheese at first denied his involve-
ment in selling drugs, but soon admitted that he had been selling
crack cocaine for Dion and Hill since February. Cheese recanted this
admission at a suppression hearing and during trial.
Dion, Hill, Wendell, and Brandon all pled guilty pursuant to plea
agreements prior to Cheese's trial. They each testified at the trial
about the conspiracy and Cheese's role in it. The plea agreement for
each witness was introduced into evidence, and defense counsel
cross-examined each witness about the anticipated benefits from his
or her testimony.
II
Cheese asserts that the jury was chosen in violation of 28 U.S.C.
§ 1862 (1994), in that the jurors were not chosen from a fair cross
section of the community. Of the forty-four prospective jurors, none
was black.
In a criminal case, a challenge to the procedure used in jury selec-
tion must be made before voir dire begins or within seven days of the
time defendants discovered or could have discovered the grounds for
such a challenge. 28 U.S.C. § 1867(a) (1994). Cheese did not comply
with this time frame and thus waived his objection to the jury's com-
position. United States v. Webster, 639 F.2d 174, 180 (4th Cir. 1981).
We may review his claim only for plain error. United States v. Olano,
507 U.S. 725, 732-37 (1993).
To receive relief under the plain error standard, a defendant must
show the following elements: (1) there was error; (2) the error was
3
plain and obvious under existing law; (3) the error was so prejudicial
as to affect the outcome of the proceedings; and (4) the error seriously
affects the fairness and integrity of the judicial proceeding. United
States v. Castner, 50 F.3d 1267, 1277-78 (4th Cir. 1995). Here,
Cheese has failed to establish error. To prove the absence of a fair
cross-section of the community in the jury process, a defendant must
affirmatively show, among other things, that there is an underrepre-
sentation of a distinct group in the community due to systematic
exclusion of the group from the selection process. Duren v. Missouri,
439 U.S. 357, 364 (1979). Cheese has made no attempt to bear his
burden of proof in this regard; therefore, he has not established an
error and fails to satisfy the Olano standard.1
III
Next, Cheese argues that the Government violated 18 U.S.C.A.
§ 201(c)(2) (West Supp. 1998), which prohibits offers or promises of
anything of value to witnesses "for or because of" their testimony.
The Government's case against Cheese was based on the testimony
of his coconspirators, Dion Cheese, Wendell Cheese, Doug Hill, and
Christie Brandon. All of these witnesses made plea agreements with
the Government that required their truthful testimony in future pro-
ceedings and granted use immunity. For Dion, Wendell, and Hill, the
agreements resulted in dismissal of at least one charge. The Govern-
ment agreed to refrain from seeking sentence enhancement, under 21
U.S.C. § 851 (1994), for Dion and Hill, and to limit Brandon's rele-
vant conduct as to drug quantity for sentencing purposes. Cheese
alleges that the district court erred in allowing their testimony because
of these agreements. Cheese did not object to this alleged error at
trial; therefore, it is evaluated under the Olano standard. See Fed. R.
Crim. P. 52(b).
Again, the plain error standard requires proof that there is an error
that is clear and obvious under existing law. Castner, 50 F.3d at 1277-
78. Cheese relies on two district court opinions, from courts outside
_________________________________________________________________
1 The Government notes that jury selection for the United States Dis-
trict Court for the Southern District of West Virginia takes place under
a plan approved by the judges of the district in 1993 and reviewed and
accepted by the Judicial Council of this circuit.
4
this circuit, to support his claim of error.2 There is no valid precedent
in this or any circuit court to uphold this argument, and a number of
circuits have rejected it. United States v. Singleton, ___ F.3d ___, No.
97-3178 (10th Cir. Jan. 8, 1999); United States v. Haese, 162 F.3d
359 (5th Cir. 1998); United States v. Ware, 161 F.3d 414 (6th Cir.
1998). Under the Olano analysis, if there was an error, it is not plain
and obvious under existing law because no Supreme Court or circuit
court opinion stands to support that position. Therefore, Cheese is
entitled to no relief on this claim.
IV
Finally, Cheese argues that the district court failed to make a par-
ticularized factual finding as to the amount of drugs to be attributable
to him. He also asserts that the district court could not properly adopt
the findings in the presentence report, which did not differentiate the
amounts attributable to each member of the conspiracy.
In the district court, Cheese objected to being held accountable for
the 500 grams to 1.5 kilograms of cocaine base attributed to the con-
spiracy as a whole. The probation officer responded that Cheese was
an active participant throughout the conspiracy, except when he was
in jail; that he knew the conspiracy continued while he was in jail and
did nothing to terminate his involvement; and that he was present at
a drug sale the day after his release from jail and continued selling
until the conspiracy was terminated by the arrests of Dion and Hill.
The government must prove the quantity of drugs for which a
defendant is accountable at sentencing by a preponderance of the evi-
dence. United States v. Estrada, 42 F.3d 228, 231 (4th Cir. 1994). The
district court may rely on information in the presentence report unless
the defendant affirmatively shows that the information is unreliable.
United States v. Love, 134 F.3d 595, 606 (4th Cir.), cert. denied, ___
U.S. ___, 66 U.S.L.W. 3790 (U.S. June 15, 1998) (No. 97-9085).
When the drug quantity is disputed, the district court must make an
independent determination of the factual question at sentencing.
United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The
_________________________________________________________________
2 United States v. Lowery, 15 F.Supp.2d 1348 (S.D. Fla. 1998); United
States v. Mays, No. 3:97-CR-127 (E.D. Tenn. Sep. 10, 1998).
5
quantity of drugs attributable to defendant is a factual determination
that we review for clear error. United States v. Hyppolite, 65 F.3d
1151, 1158 (4th Cir. 1995).
Here, although the Government did not present additional evidence
at sentencing, see Gilliam, 987 F.2d at 1013, the district court relied
on trial evidence to make findings as to Cheese's role in the conspir-
acy. Thus, contrary to Cheese's assertion, the district court did make
specific findings about the relevant conduct for which Cheese would
be held responsible. See U.S. Sentencing Guidelines Manual § 1B1.3
(1997). The court found that the conspirators jointly undertook to
secure and distribute cocaine base in the Beckley area, and that
Cheese was one of three primary distributors.3 The district court
found that when Wendell Cheese "fell by the wayside," Cheese and
Brandon took up the entire distribution until Cheese went to jail. Soon
after Cheese was released, Brandon conducted a drug deal in his pres-
ence. The district court found this to be part of the criminal activity
of the conspiracy. "Thus that just merely continues the jointly
undertaken activity and it's reasonably foreseeable that Mr. Troy
Cheese would be responsible to the range of cocaine base that was
brought into West Virginia, that is between 500 grams and 1000 or
1.5 kilograms."
The district court made an independent resolution of the issue "by
separate recitation of its findings as to the disputed matters . . .,"
United States v. Williams, 152 F.3d 294, 301 (4th Cir. 1998), and
found that the Government carried its burden of proving by a prepon-
derance the quantity of drugs attributed to Cheese. The evidence at
trial supports the court's conclusion that the entire quantity of drugs
was foreseeable to him due to his extensive participation in the con-
spiracy. These findings are not clearly erroneous.
Cheese is entitled to no relief on the claims before us. We note,
however, that the sentence announced by the district court imposed
a five-year term of supervised release, as required by statute. 21
U.S.C.A. § 841(b)(1)(A) (West Supp. 1998). The written judgment
_________________________________________________________________
3 Cheese does not dispute the amount of drugs attributed to the conspir-
acy as a whole, merely the amount of that total for which he is held
accountable.
6
imposes a three-year term of supervised release. Not only does the
statute require the longer term, but the oral judgment announced by
the judge controls in a conflict with the written judgment. United
States v. Morse, 344 F.2d 27, 30 (4th Cir. 1965); Rakes v. United
States, 309 F.2d 686, 687-88 (4th Cir. 1962). Such a clerical mistake
in the judgment may be corrected at any time. Fed. R. Crim. P. 36.
Therefore, we affirm his conviction and sentence as announced by the
district court. We remand for correction of the clerical error as to the
length of supervised release. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and oral argument would not aid the decisional
process.
AFFIRMED; REMANDED FOR
CORRECTION OF THE JUDGMENT
7