United States v. William A. Taylor ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 98-4517
    WILLIAM ANDREW TAYLOR,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 98-4518
    STEVEN BLAKE DAVIS,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the Western District of Virginia, at Abingdon.
    Glen M. Williams, Senior District Judge.
    (CR-97-40-A)
    Argued: May 7, 1999
    Decided: August 16, 1999
    Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: John Edward Jessee, JESSEE & READ, P.C., Abingdon,
    Virginia; James Douglas Fleenor, Bristol, Virginia, for Appellants.
    Steven Randall Ramseyer, Assistant United States Attorney, Abing-
    don, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
    United States Attorney, Abingdon, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    William Andrew Taylor and Steven Blake Davis (Defendants),
    inmates at the Bland Correctional Center in Bland County Virginia,
    were convicted of conspiring with Thomas Ray Lephew, a correc-
    tional officer at the Bland Correctional Center, to distribute controlled
    substances in violation of 
    21 U.S.C.A. § 846
     (West Supp. 1999). On
    appeal, Defendants make numerous challenges to their convictions
    and sentences. Finding no reversible error, we affirm.
    I.
    In October of 1994, an agent of the Virginia Department of Correc-
    tions, Bureau of Internal Affairs, provided information to Terry Vlug,
    a United States Postal Inspector, indicating that Thomas Ray Lephew
    was possibly receiving controlled substances through the mail and
    then delivering them to inmates at the Bland Correctional Center. As
    a consequence, Postal Inspector Vlug began to monitor the mail
    received at a post office box rented by Lephew. Over a seven-week
    period, five separate packages were delivered to Lephew's post office
    box. After the packages' mailing labels were photocopied, three were
    delivered and two were retained by Postal Inspector Vlug.
    On January 24, 1995, Postal Inspector Vlug and an Internal Affairs
    Agent interviewed Lephew at the Bland Correctional Center. Lephew
    admitted renting a post office box for the purpose of receiving adult
    material, but denied receiving any packages. Lephew was then shown
    2
    the two packages addressed to him, at which time he gave permission
    for the packages to be opened. The first package held a baggie con-
    taining green plant material, another baggie containing a powdery
    substance, and ten yellow tablets. The second package contained a
    telephone book. Four baggies containing white powder were discov-
    ered in a cut-out section of the book.1
    After being advised of his rights, Lephew expressed his desire to
    tell the truth about the packages. Lephew then confessed that he had
    been receiving packages containing drugs through the U.S. Mail for
    approximately three years (since March of 1992). According to
    Lephew, he delivered the drugs to William Andrew Taylor and Ste-
    ven Blake Davis, inmates at the Bland Correctional Center. Lephew
    stated that he had made at least one delivery per week to Taylor and
    Davis and that he was paid $150 in cash for each delivery.
    On October 8, 1997, a federal grand jury returned a four-count
    indictment against Taylor, Davis, and Lephew. Count One charged
    that all three conspired to distribute controlled substances in violation
    of 
    21 U.S.C.A. §§ 841
    (a)(1) & 846 (West Supp. 1999). Count Two
    charged Taylor with using the mail to facilitate the conspiracy in vio-
    lation of 
    21 U.S.C.A. § 843
    (b) (West Supp. 1999). Counts Three and
    Four charged Davis with using the mail for the same purpose in viola-
    tion of 
    21 U.S.C.A. § 843
    (b). On November 12, 1997, Lephew
    pleaded guilty to Count One pursuant to a written plea agreement.
    On March 17, 1998, the U.S. Attorney's Office for the Western
    District of Virginia filed an information as to Davis pursuant to 
    21 U.S.C.A. § 851
     (West 1981), listing the previous convictions the
    Government would rely upon for increasing Davis's sentence if he
    was convicted. A jury trial was convened on March 20, 1998. Prior
    to the presentation of evidence, the U.S. Attorney's Office moved for
    the dismissal of Counts Two, Three, and Four. After the presentation
    _________________________________________________________________
    1 The substances from both packages were submitted to the U.S. Postal
    Inspection Service Crime Laboratory for analysis. The first package con-
    tained 3.41 grams of marijuana, ten diazepam tablets, and 1.16 grams of
    a mixture containing d-methamphetamine. The second package con-
    tained a total of 10.83 grams of cocaine powder.
    3
    of evidence, closing arguments, and deliberation, the jury found Tay-
    lor and Davis guilty on Count One.
    On July 6, 1998, Taylor and Davis were sentenced pursuant to the
    drug trafficking guideline. See U.S. Sentencing Guidelines Manual
    § 2D1.1 (1997). At sentencing, the district court found that 242 kilo-
    grams of marijuana were delivered to Taylor and Davis during the
    course of the conspiracy. Due to the amount of drugs involved, Tay-
    lor's and Davis's base offense levels were set at twenty-six. See
    U.S.S.G. § 2D1.1(c)(7). Because the district court found that Taylor
    committed perjury, his base offense level was increased an additional
    two levels for obstruction of justice. See U.S.S.G. § 3C1.1.
    With an adjusted offense level of 28 and a criminal history cate-
    gory of III, Taylor's guideline range was 97-121 months. See
    U.S.S.G. Ch.5, Pt.A. Finding that Taylor's criminal history category
    did not adequately reflect the seriousness of his criminal history, the
    district court departed upward pursuant to § 4A1.3, p.s. Specifically,
    the district court noted that but for the consolidation of two prior con-
    victions for violent felonies, Taylor would be considered a career
    offender under § 4B1.1. As a career offender, Taylor's base offense
    level would have been 37, see U.S.S.G. § 4B1.1, and, as a result, his
    guideline range would have been 262-327 months, see U.S.S.G. Ch.5,
    Pt.A. Taylor was sentenced to a term of 265 months imprisonment.
    With an adjusted offense level of 26 and a criminal history cate-
    gory of VI, Davis's guideline range was 120-150 months. See
    U.S.S.G. Ch.5, Pt.A. Finding that Davis's criminal history category
    did not adequately reflect the seriousness of Davis's criminal history
    or the likelihood that he would commit future crimes, the district
    court departed upward pursuant to § 4A1.3, p.s. After reviewing
    Davis's lengthy criminal history, the district court concluded that
    Davis should be considered a career offender under§ 4B1.1. As a
    career offender, Davis's base offense level would have been 37, see
    U.S.S.G. § 4B1.1, and, as a result, his guideline range would have
    been 360 months to life, see U.S.S.G. Ch.5, Pt.A. Davis was sen-
    tenced to a term of 480 months imprisonment. Defendants filed
    timely notices of appeal.
    On appeal, Defendants make numerous challenges to their convic-
    tions and sentences. First, Defendants allege that the testimony of
    4
    Lephew should have been suppressed because it was made in
    exchange for something of value in violation of 
    18 U.S.C.A. § 201
    (c)(2) (West Supp. 1999). Second, Defendants contend that the
    evidence was insufficient to prove beyond a reasonable doubt that
    they participated in a conspiracy to distribute drugs. Third, Defen-
    dants challenge several of the district court's evidentiary rulings.
    Fourth, Defendants argue that district court abused its discretion in
    departing upward from the Sentencing Guidelines pursuant to
    § 4A1.3, p.s. Finally, Defendants contend that the district court erred
    in calculating the weight of the drugs attributable to the conspiracy.
    We address these claims in turn.
    II.
    Defendants first contend that their convictions should be reversed
    on the ground that the Government offered leniency to Lephew in
    exchange for his testimony. Defendants claim that this practice vio-
    lates the federal bribery statute, 
    18 U.S.C.A. § 201
    (c)(2) (West Supp.
    1999), which prohibits the giving of "anything of value" to a witness
    because of his or her testimony. As support for their contention,
    Defendants primarily rely upon United States v. Singleton, 
    144 F.3d 1343
     (10th Cir. 1998), which held that any promise made by the Gov-
    ernment to a witness in exchange for truthful testimony violates
    § 201(c)(2). That decision, however, has been vacated by the Tenth
    Circuit. In fact, after rehearing the case en banc, the Tenth Circuit has
    since held that § 201(c)(2) does not apply to the United States or an
    Assistant United States Attorney functioning within the official scope
    of the office. See United States v. Singleton , 
    165 F.3d 1297
    , 1300
    (10th Cir. 1999) (en banc).
    Notwithstanding the most recent decision of the Tenth Circuit,
    Defendants continue to contend that § 201(c)(2) applies to the Gov-
    ernment in the prosecution of criminal offenses. Specifically, Defen-
    dants argue that the plain language of the statute permits no answer
    but that it does. The Government, in contrast, counters that such a
    reading is clearly wrong. Whether § 201(c)(2) applies to the Govern-
    ment in the prosecution of criminal offenses is a legal question and,
    therefore, subject to de novo review. See United States v. Hall, 
    972 F.2d 67
    , 69 (4th Cir. 1992) (noting that interpretation of a statute is
    a purely legal question calling for de novo review).
    5
    The federal bribery statute provides, in pertinent part, as follows:
    Whoever . . . directly or indirectly, gives, offers, or prom-
    ises anything of value to any person, for or because of the
    testimony under oath or affirmation given or to be given by
    such person as a witness upon a trial . . . before any court
    . . . shall be fined under this title or imprisoned for not more
    than two years, or both.
    
    18 U.S.C.A. § 201
    (c)(2). As the Tenth Circuit recently noted, Defen-
    dants' interpretation of the statute is patently absurd:
    When an assistant United States Attorney (AUSA) enters
    into a plea agreement with a defendant, that plea agreement
    is between the United States government and the defendant.
    When an AUSA uses at trial testimony obtained through a
    plea agreement or an agreement not to prosecute, he does so
    as the government. An AUSA who, pursuant to the provi-
    sions of the United States Sentencing Guidelines, moves for
    a downward departure under § 5K1.1, does so as the govern-
    ment.
    Put into proper context, then, the defendant's argument is:
    in a criminal prosecution, the word "whoever" in the statute
    includes within its scope the United States acting in its sov-
    ereign capacity. Extending that premise to its logical conclu-
    sion, the defendant implies Congress must have intended to
    subject the United States to the provisions of section
    201(c)(2), and, consequently, like any other violator, to
    criminal prosecution. Reduced to this logical conclusion, the
    basic argument of the defendant is patently absurd.
    Singleton, 
    165 F.3d at 1300
     (citations and internal quotation marks
    omitted). We find the Tenth Circuit's rationale persuasive. Based
    upon the statute's purpose, it is clear that § 201(c)(2) was not
    intended to apply to the United States or its attorneys. Accordingly,
    we find this claim to be meritless.
    III.
    Next, Defendants contend that the evidence was insufficient to
    prove beyond a reasonable doubt that they participated in a conspir-
    6
    acy to distribute drugs. When assessing the sufficiency of the evi-
    dence of a criminal conviction on direct review,"[t]he verdict of a
    jury must be sustained if there is substantial evidence, taking the view
    most favorable to the Government, to support it." Glasser v. United
    States, 
    315 U.S. 60
    , 80 (1942).
    To prove a conspiracy to distribute controlled substances, the Gov-
    ernment must establish: 1) an agreement to possess controlled sub-
    stances with intent to distribute existed between two or more persons;
    2) the defendant knew of the conspiracy; and 3) the defendant know-
    ingly and voluntarily became a part of the conspiracy. See United
    States v. Collazo, 
    732 F.2d 1200
    , 1205 (4th Cir. 1984). At issue here
    is whether the Government established, beyond a reasonable doubt,
    that Defendants intended to distribute the controlled substances that
    they purchased from Lephew.
    Evidence that Taylor distributed drugs was simply overwhelming.
    In addition to Lephew's testimony, four inmates from the Bland Cor-
    rectional Center testified that they either purchased drugs from Taylor
    or paid for their drug purchases by sending money orders to Virginia
    Taylor, Taylor's wife. We recognize, however, that not one witness
    testified that he purchased drugs from Davis. Indeed, Lephew testified
    that he never saw Davis distribute drugs to a third party. During delib-
    erations, even the jury noted, in a letter to the district court, the
    absence of any direct evidence that Davis distributed drugs:
    Your Honor:
    We are unclear whether we heard anyone testify [that]
    they purchased drugs from Steven B. Davis. Could you
    please clarify this for us.
    Thank you
    (J.A. at 502.)2
    _________________________________________________________________
    2 In response to the jury's question, the district court wrote to the jury
    as follows:
    All questions of fact are up to you, the jury. I am not permitted
    to tell you what the facts are in the case.
    7
    Despite the absence of direct evidence that Davis personally dis-
    tributed drugs, the evidence was sufficient to convict Davis of con-
    spiring to distribute drugs. See Blumenthal v. United States, 
    332 U.S. 539
    , 557 (1947) (noting that by its very nature a conspiracy is clan-
    destine and covert, thereby frequently resulting in little direct evi-
    dence of such an agreement). A conspiracy generally is proved by
    circumstantial evidence and the context in which the circumstantial
    evidence is adduced. See Iannelli v. United States, 
    420 U.S. 770
    , 777
    n.10 (1975). In fact, circumstantial evidence is sufficient to support
    a guilty verdict even though it does not exclude every reasonable
    hypothesis of innocence. See United States v. Jackson, 
    863 F.2d 1168
    ,
    1173 (4th Cir. 1989). If substantial evidence exists to support a ver-
    dict, the verdict must be sustained. See Glasser , 
    315 U.S. at 80
    .
    Lephew testified that Davis and Taylor considered themselves part-
    ners, and that the partnership specifically contemplated the distribu-
    tion of drugs to third parties. Indeed, both conclusions can be readily
    drawn from Defendants' course of conduct. Although drugs were
    mailed to Lephew both from friends of Davis and from friends of
    Taylor, Lephew would deliver the drugs to either Defendant regard-
    less of the drug's source. Similarly, Davis would pay Lephew for the
    drugs even when the drugs were delivered to Taylor. As noted above,
    there was overwhelming evidence that Davis's partner did, in fact,
    sell drugs to third parties. Thus, that Davis did not sell any drugs is
    of no import, the jury could infer Davis's intent to distribute from his
    partnership with Taylor. See United States v. Burgos, 
    94 F.3d 849
    ,
    859 (4th Cir. 1996) (en banc) (holding that "a variety of conduct,
    apart from selling narcotics, can constitute participation in a conspir-
    acy sufficient to sustain a conviction").
    In addition, Davis's intent to distribute may be inferred from the
    amount of drugs he purchased over the course of the alleged conspir-
    _________________________________________________________________
    (J.A. at 502.) Although Davis makes much of the jury's question con-
    cerning the lack of direct evidence, Davis does not dispute that circum-
    stantial evidence is sufficient to support a guilty verdict. Because there
    was sufficient circumstantial evidence of Davis's intent to distribute, the
    jury's question to the district court is not evidence, as Davis claims, that
    the jury harbored reasonable doubt as to his intent to distribute controlled
    substances.
    8
    acy. See 
    id. at 873
     (noting that intent to distribute can be inferred
    from the amount of drugs involved); United States v. Fisher, 
    912 F.2d 728
    , 730 (4th Cir. 1990) (finding that intent to distribute can be
    inferred when the amount of the controlled substance is larger than
    would be expected for personal use). Taylor and Davis purchased
    over 240 kilograms of marijuana during the course of the charged
    conspiracy. This amount is simply too large for personal consump-
    tion, see, e.g., United States v. LaMarr , 
    75 F.3d 964
    , 973 (4th Cir.
    1996) (holding that 5.72 grams of crack was consistent with distribu-
    tion), especially given the context in which the drugs were purchased,
    see, e.g., United States v. Damerville, 
    27 F.3d 254
    , 259 (7th Cir.
    1994) (recognizing that what may be considered a small amount of
    drugs on the street could be considered a large amount in prison).
    Indeed, a defense witness testified that the cocaine found in the sec-
    ond package, which was mailed to Lephew from one of Davis's
    friends, could be broken down into approximately 125 units that
    could be sold in prison for $50 a unit. A jury could infer from such
    evidence that Davis intended to distribute the cocaine.
    Because a rational trier of fact could have found that Taylor and
    Davis possessed the drugs with the intent to distribute, the district
    court did not err in denying their motions for judgment of acquittal.
    See Burgos, 
    94 F.3d at 862, 873
    .
    IV.
    Next, Defendants challenge several of the district court's evidenti-
    ary rulings. Specifically, Defendants argue that the district court erred
    when it allowed the Government (1) to introduce evidence that Davis
    had tested positive for marijuana use during the course of the conspir-
    acy; (2) to introduce Davis's prior drug-related felony convictions; (3)
    to introduce inmate visiting request forms; (4) to cross-examine sev-
    eral of Taylor's witnesses on matters not raised during direct exami-
    nation; (5) to introduce drugs and packages into evidence without
    establishing a proper chain of custody; (6) to discuss a lab report that
    was not properly introduced; and (7) to introduce the grand jury testi-
    mony of three witnesses. We address these arguments in turn, keeping
    in mind that a district court's evidentiary rulings are reviewed under
    the narrow abuse of discretion standard. See United States v. Sanchez,
    
    118 F.3d 192
    , 195 (4th Cir. 1997).
    9
    A.
    First, Defendants argue that the district court erred when it allowed
    the Government to introduce evidence that Davis had tested positive
    for marijuana use during the course of the conspiracy. During the
    course of the trial, a Government witness, Lieutenant George Hughes,
    testified about the contents of an offense report that contained the
    results of Davis's test for marijuana. Defendants objected to the testi-
    mony only on the ground that Lieutenant Hughes did not conduct the
    analysis of Davis's urine, and as such, his testimony was clearly hear-
    say. See Fed. R. Evid. 802. Assuming that the evidence in question
    should not have been introduced through Lieutenant Hughes, the error
    was harmless. Taylor testified at trial that Davis had told him that he
    tested positive for marijuana. Thus, the jury would have learned of
    Davis's positive test without the introduction of the offense report.
    B.
    Next, Defendants argue that the district court erred when it allowed
    the Government to introduce Davis's prior drug-related felony con-
    victions. At trial, the Government introduced evidence that in 1979
    Davis pleaded guilty to conspiracy to deliver controlled substances to
    an inmate. Davis contends that the evidence of his prior crimes vio-
    lated Rule 404(b) of the Federal Rules of Evidence. For the reasons
    that follow, we disagree.
    Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or
    acts is not admissible to prove the character of a person in order to
    show action in conformity therewith." Fed. R. Evid. 404(b). Rule
    404(b), however, does not end there. It expressly states that evidence
    of other crimes, wrongs, or acts is admissible to prove "motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence
    of mistake or accident." 
    Id.
     Moreover, it is well established that that
    list "is illustrative rather than exclusionary." United States v. Powers,
    
    59 F.3d 1460
    , 1464 (4th Cir. 1995); see also United States v.
    Stockton, 
    788 F.2d 210
    , 219 n.15 (4th Cir. 1986) (noting that
    impeachment is a proper use of "other crimes" evidence, even though
    not listed in Rule 404(b)). In fact, by its own terms, Rule 404(b)
    expressly only excludes evidence of other crimes, wrongs, or acts
    when it is used to prove a defendant's bad character or to "show
    10
    action in conformity therewith." See, e.g. , Powers, 
    59 F.3d at 1464
    (recognizing "Rule 404(b) as an inclusive rule, admitting all evidence
    of other crimes or acts except that which tends to prove only criminal
    disposition" (internal quotation marks omitted)).
    Davis was charged with possession with intent to distribute. As
    noted above, the Government had to prove that Davis intended to dis-
    tribute the drugs that he purchased from Lephew. Davis's prior con-
    viction for distributing drugs in prison, therefore, was proper evidence
    of his intent. Accordingly, the district court did not abuse its discre-
    tion when it allowed the Government to introduce Davis's prior drug-
    related felony convictions.
    C.
    Defendants also contend that the district court erred by allowing
    the Government to introduce into evidence inmate visiting request
    forms, which listed Davis's visitors while he was housed at the Meck-
    lenburg Correctional Center and Taylor's visitors while he was
    housed at the Lunenburg Correctional Center. Defendants argue on
    appeal that the forms were both hearsay and not relevant to the
    offense charged and, therefore, inadmissible. We disagree.
    First, the forms were introduced by Deborah Lockhart, an
    employee of the Virginia Department of Corrections. Lockhart identi-
    fied the forms as documents that were ordinarily maintained in the
    course of business by the Virginia Department of Corrections. Thus,
    the forms were admissible pursuant to the business records exception
    to the hearsay rule. See Fed. R. Evid. 803(6).
    Second, although the visitation request forms did not relate to the
    Bland Correctional Center and were generated prior to the dates
    alleged in the indictment, they were relevant to the charged offense.
    Of the two packages that were intercepted by Postal Inspectors,
    Lephew identified the package with a return address from Ridgeway
    as having been sent by Taylor's friends, and the package with a return
    address from Lynchburg as having been sent by Davis's friends. The
    forms were introduced to establish that Davis had friends from
    Lynchburg, and that Taylor had friends from Ridgeway. Thus, the
    forms were in fact relevant to the pending charges.
    11
    D.
    Next, Davis argues that the district court erred by allowing the
    Government to cross-examine several of Taylor's witnesses as to
    Davis when no questions were asked by Davis, and Taylor asked no
    questions during direct examination about Davis. Defendants argue
    that because the Government's cross-examination of Taylor's wit-
    nesses did not relate to the subject matter of the direct examination,
    the questioning violated Rule 611(b) of the Federal Rules of Evi-
    dence. We disagree. As the Government notes, Davis appears to con-
    cede that the evidence was admissible but argues that it should have
    been introduced in the Government's case. As such, the cross-
    examinations did not violate Rule 611, which provides, in pertinent
    part, that "[t]he court may, in the exercise of discretion, permit
    inquiry into additional matters as if on direct examination." Fed. R.
    Evid. 611(b). Here, the district court simply permitted the Govern-
    ment to inquire into additional matters as if on direct examination. As
    such, there was no error.
    E.
    Next, Defendants contend that the district court erred when it
    allowed the Government to introduce drugs and packages into evi-
    dence without establishing a proper chain of custody. More particu-
    larly, Defendants assert that the Government failed to identify any
    marks or distinctive characteristics of the fungible exhibits, i.e., the
    drugs, that would allow such exhibits to be properly identified with
    any degree of certainty.
    The "chain of custody" rule is found in Rule 901 of the Federal
    Rules of Evidence, which provides, in pertinent part, as follows:
    The requirement of authentication or identification as a con-
    dition precedent to admissibility is satisfied by evidence suf-
    ficient to support a finding that the matter in question is
    what its proponent claims.
    Fed. R. Evid. 901(a). Authentication or identification conforming
    with the requirements of Rule 901 is satisfied by the testimony of a
    12
    witness with knowledge. Indeed, as this Court has pointed out, the
    "``chain of custody' is not an iron-clad requirement, and the fact of a
    missing link does not prevent the admission of real evidence, so long
    as there is sufficient proof that the evidence is what it purports to be
    and has not been altered in any material aspect." United States v.
    Howard-Arias, 
    679 F.2d 363
    , 366 (4th Cir. 1982) (internal quotation
    marks omitted).
    Here, Postal Inspector Vlug testified that the drugs introduced into
    evidence were the same drugs taken from the two packages addressed
    to Lephew. Moreover, Meade R. Drumgold, a forensic chemist with
    the U.S. Postal Inspection Service, testified that the drugs introduced
    into evidence, which were in sealed bags bearing his initials, were the
    same drugs that he had evaluated. This testimony sufficed to establish
    the requisite chain of custody. See United States v. Ricco, 
    52 F.3d 58
    ,
    61 (4th Cir. 1995) (holding that witness's identification of evidence
    in sealed vial bearing his initials was sufficient to establish the neces-
    sary chain of custody).
    F.
    At trial, Postal Inspector Vlug was allowed to testify from a lab
    report that purported to establish the weight and nature of the drugs
    found in the two packages. Defendants argue that district court erred
    when it allowed Postal Inspector Vlug to testify as to the weight and
    identity of the drugs because he had no personal knowledge of the
    analysis summarized within the lab report, and, therefore, his testi-
    mony was inadmissible hearsay. Again, any error was harmless.
    Because the document from which Postal Inspector Vlug testified was
    later properly introduced, without objection, it is very difficult to
    imagine how Postal Inspector Vlug's reading of the document could
    be reversible error.
    G.
    Finally, Defendants contend that the district court erred in allowing
    the Government to introduce the grand jury testimony of three wit-
    nesses: William Smith, William Falls, and Edward Mitchell.
    13
    1. William Smith
    At trial, the Government called several of Davis's and Taylor's fel-
    low inmates from the Bland Correctional Center as witnesses.
    Although the first witness, Smith, had previously testified before the
    grand jury, he invoked the Fifth Amendment during his trial testi-
    mony when asked whether he had ever purchased drugs from Taylor.
    Smith did state, however, that he told the truth during his grand jury
    testimony. As a result, the Government asked Smith several questions
    concerning his grand jury testimony. Among other things, Smith con-
    firmed that he had told the grand jury that he had purchased marijuana
    from "L.A." and as payment sent a money order to Virginia Taylor,
    Taylor's wife. Smith was then cross-examined by Davis and Taylor.
    Smith answered all of their questions.
    First, Defendants argue that the introduction of Smith's grand jury
    testimony was erroneous because Smith was not "unavailable" for
    purposes of Rule 804. In the alternative, Defendants argue that even
    if Smith was unavailable for purposes of Rule 804, his statement --
    made during his grand jury testimony -- that he purchased drugs
    while in prison was not admissible pursuant to Rule 804(b)(3) as a
    statement against interest or pursuant to Rule 801(d)(2)(E) as a state-
    ment of a coconspirator in furtherance of the conspiracy. Finally,
    Defendants argue that the introduction of Smith's grand jury testi-
    mony violated their Sixth Amendment right to confront witnesses.
    Despite Defendants' contentions to the contrary, Smith's grand
    jury testimony was not introduced into evidence. Rather, Smith was
    asked if his answers to specific questions from the grand jury contin-
    ued to be correct. His grand jury testimony was never read into the
    record. Moreover, Smith was available for and was cross-examined
    by defense counsel. Thus, Defendants' Sixth Amendment right to
    confront Smith was simply not infringed.
    2. William Falls and Edward Mitchell
    At trial, William Falls and Edward Mitchell refused to answer any
    questions despite an order of the district court to do so. As a result,
    portions of their grand jury testimony were introduced into evidence
    pursuant to Rule 804(b)(3). In Falls's grand jury testimony he stated
    14
    that he purchased marijuana from J.C. Martin and sent a money order
    to Virginia Taylor as payment. Falls's criminal record was then intro-
    duced into evidence. In Mitchell's grand jury testimony he stated that
    he purchased marijuana from Taylor. His criminal record was also
    introduced into evidence.
    On appeal, Defendants first argue that the introduction of Falls's
    and Mitchell's grand jury testimony was erroneous because neither
    Falls nor Mitchell was "unavailable" for purposes of Rule 804. In the
    alternative, Defendants argue that even if Falls and Mitchell were
    unavailable for purposes of Rule 804, their statements -- made during
    their grand jury testimony -- that they had purchased drugs while in
    prison were not admissible pursuant to Rule 804(b)(3). Finally,
    Defendants argue that the introduction of Falls's and Mitchell's grand
    jury testimony violated their Sixth Amendment right to confront wit-
    nesses. We address these arguments in turn.
    a.
    Rule 802 of the Federal Rules of Evidence provides that hearsay
    is not admissible into evidence except as provided by law, and Rule
    804 provides exceptions to Rule 802 when the declarant is unavail-
    able as a witness. Despite Defendants' contentions to the contrary, we
    conclude that both Falls and Mitchell were "unavailable" for purposes
    of Rule 804. Rule 804 defines "unavailability" as follows:
    Unavailability as a witness includes situations in which the
    declarant . . . persists in refusing to testify concerning the
    subject matter of the declarant's statement despite an order
    of the court to do so.
    Fed. R. Evid. 804(a)(2). Because Falls and Mitchell refused to testify
    after being ordered by the district court to do so, they were unavail-
    able under Rule 804(a)(2). Cf. United States v. Bumpass, 
    60 F.3d 1099
    , 1102 (4th Cir. 1995) (holding that the declarant "was unavail-
    able, having asserted his constitutional privilege against self-
    incrimination").
    b.
    A statement is against interest if, "at the time of its making[, it] . . .
    so far tended to subject the declarant to civil or criminal liability . . .
    15
    that a reasonable person in the declarant's position would not have
    made the statement unless believing it to be true." Fed. R. Evid.
    804(b)(3). Moreover, as the Supreme Court made clear in Williamson
    v. United States, 
    512 U.S. 594
    , 603 (1994),"[e]ven statements that are
    on their face neutral may actually be against the declarant's interest."
    Again, despite Defendants' contentions to the contrary, Falls's and
    Mitchell's statements were adverse to their penal interests. Both
    admitted to buying drugs while in prison. A statement made to a
    grand jury admitting involvement in a criminal act, such as that made
    by Falls and Mitchell, is adverse because of the potential for criminal
    liability. See Bumpass, 
    60 F.3d at 1102
    . Because the statements actu-
    ally subjected Falls and Mitchell to criminal liability, the district court
    did not abuse its discretion by admitting the statements into evidence
    pursuant to Rule 804(b)(3).
    c.
    Finally, Defendants contend that the admission of Falls's and
    Mitchell's grand jury testimony violated their Sixth Amendment right
    to confront witnesses. In Ohio v. Roberts, 
    448 U.S. 56
     (1980), the
    Supreme Court noted that a statement is admissible and does not vio-
    late the Confrontation Clause where there is a necessity (i.e., the wit-
    ness is unavailable) and the statement bears sufficient "indicia of
    reliability" in that it falls within a "firmly rooted hearsay exception,"
    or has "particularized guarantees of trustworthiness" such that "there
    is no material departure from the reason of the general rule." 
    Id.
     at 65-
    66 (internal quotation marks omitted).
    In Lee v. Illinois, 
    476 U.S. 530
     (1986), the Supreme Court noted
    that confessions made by co-conspirators have a rebuttable "presump-
    tion of unreliability" and do not fall within a"firmly rooted" hearsay
    exception. 
    Id. at 543
    . In footnote 5, the Court also seemed to reject
    a broad application of the statement-against-penal-interest exception
    to allow the admissibility of confessions, observing that the "concept
    defines too large a class for meaningful Confrontation Clause analy-
    sis." 
    Id.
     at 544 n.5. Whether statements against penal interest can
    qualify as a firmly rooted hearsay exception as a class or whether
    each statement must qualify through its particularized guarantee of
    trustworthiness has divided the Circuit Court of Appeals since Lee.
    16
    Cf., e.g., United States v. Moses, 
    148 F.3d 277
    , 281 (3d Cir. 1998)
    (declining to decide if firmly rooted), cert. denied, 
    119 S. Ct. 1047
    (1999); United States v. Keltner, 
    147 F.3d 662
    , 671 (8th Cir.) (firmly
    rooted), cert. denied, 
    119 S. Ct. 574
     (1998); LaGrand v. Stewart, 
    133 F.3d 1253
    , 1268-69 (9th Cir.) (suggesting firmly rooted in dicta), cert.
    denied, 
    119 S. Ct. 422
     (1998); Neuman v. Rivers, 
    125 F.3d 315
    , 319
    (6th Cir.) (firmly rooted), cert. denied, 
    118 S. Ct. 631
     (1997); Earnest
    v. Dorsey, 
    87 F.3d 1123
    , 1131 (10th Cir. 1996) (not firmly rooted);
    United States v. Trenkler, 
    61 F.3d 45
    , 62 (1st Cir.1995) (assuming
    firmly rooted); United States v. Matthews, 
    20 F.3d 538
    , 544-46 (2d
    Cir. 1994) (declining to decide if firmly rooted); United States v.
    Flores, 
    985 F.2d 770
    , 775-76 (5th Cir. 1993) (not firmly rooted);
    United States v. York, 
    933 F.2d 1343
    , 1363 (7th Cir. 1991) (firmly
    rooted). Indeed, this very question recently split the Supreme Court.
    See Lilly v. Virginia, 
    119 S. Ct. 1887
    , 1898-99 (1999) (plurality opin-
    ion) (plurality concluded that statements against penal interest do not
    qualify as a firmly rooted hearsay exception as a class).
    We need not decide whether Falls's and Mitchell's statements fall
    within a "firmly rooted hearsay exception," or, for that matter,
    whether their statements were admissible due to their particularized
    guarantee of trustworthiness because even if the district court erred in
    admitting the challenged statements into evidence, we conclude that
    the error was harmless. See Delaware v. Van Arsdall, 
    475 U.S. 673
    ,
    684 (1986) (holding that Chapman harmless error analysis applies to
    Confrontation Clause errors). Since at least Chapman v. California,
    
    386 U.S. 18
     (1967), an otherwise valid conviction should not be set
    aside if the constitutional error was harmless beyond a reasonable
    doubt. 
    Id. at 24
    . Whether an error is harmless beyond a reasonable
    doubt depends upon several factors. We consider, among other things,
    the importance of the witnesses' testimony in the Government's case,
    whether the testimony was cumulative, the presence or absence of
    evidence corroborating or contradicting the testimony of the witnesses
    on material points, and, of course, the overall strength of the Govern-
    ment's case. See Van Arsdall, 
    475 U.S. at 684
    .
    Here, the grand jury testimony of Falls and Mitchell was simply
    not vital to the Government's case. In the portion of Falls's grand jury
    testimony that was read into the record, Falls stated that he paid for
    his drug purchases by sending money orders to Taylor's wife. The
    17
    Government, however, had already established, through the testimony
    of Crystal Blain, manager of Global Express Money Orders, that pris-
    oners at the Bland Correctional Center had sent Taylor's wife hun-
    dreds of money orders during the course of the alleged conspiracy.
    Moreover, both Smith and Lowell France testified that they sent Vir-
    ginia Taylor money orders as payment for their drug purchases. In the
    portion of Mitchell's testimony that was read into the record, Mitchell
    stated that he purchased drugs from Taylor while in prison. At trial,
    however, the Government established, through the testimony of
    Lephew and France, that Taylor was selling drugs in prison.
    In the end, we conclude that there was no real possibility that
    cross-examination would have done "[s]erious damage to the strength
    of the [Government's] case." Davis v. Alaska, 
    415 U.S. 308
    , 319
    (1974). As noted above, Falls's and Mitchell's grand jury testimony
    was corroborated by the Government's other witnesses. See Idaho v.
    Wright, 
    497 U.S. 805
    , 823 (1990) (considering corroborating evi-
    dence when engaging in harmless error review). Given the overall
    strength of the Government's case, the presence of corroborating evi-
    dence, and the insignificance of Falls's and Mitchell's testimony, we
    conclude that any error in the admission of Falls's and Mitchell's
    grand jury testimony was harmless beyond a reasonable doubt.
    V.
    Taylor and Davis also challenge their sentences. See U.S. Sentenc-
    ing Guidelines Manual (1997). First, Defendants argue that the dis-
    trict court abused its discretion in departing upward from the
    Sentencing Guidelines pursuant to § 4A1.3, p.s. Next, Defendants
    contend that the district court erred in calculating the weight of the
    drugs attributable to the conspiracy. We address these claims in turn.
    A.
    Defendants first argue that the district court abused its discretion
    in departing upward from the Sentencing Guidelines pursuant to
    § 4A1.3, p.s. A district court's decision to depart is reviewed for
    abuse of discretion. See Koon v. United States , 
    116 S. Ct. 2035
    , 2043
    (1996) ("[A]ppellate court[s] should not review the departure decision
    18
    de novo, but instead should ask whether the sentencing court abused
    its discretion.").
    Section 4A1.3, p.s. provides, in pertinent part, as follows:
    If reliable information indicates that the criminal history cat-
    egory does not adequately reflect the seriousness of the
    defendant's past criminal conduct or the likelihood that the
    defendant will commit other crimes, the court may consider
    imposing a sentence departing from the otherwise applicable
    guideline range.
    U.S.S.G. § 4A1.3, p.s. In promulgating § 4A1.3, p.s., the Sentencing
    Commission has explicitly authorized an upward departure from the
    otherwise applicable Guidelines range if a defendant's criminal his-
    tory category does not adequately reflect his past criminal conduct. In
    United States v. Wilson, 
    913 F.2d 136
    , 138-39 (4th Cir. 1990), this
    Court made it clear that such departures are appropriate.
    Here, Davis has a total of 26 criminal history points, 13 more than
    the minimum required for a criminal history category of VI. This fact
    alone establishes that Davis's criminal history category does not ade-
    quately reflect his past criminal conduct. In addition, Davis had 25
    prior convictions that received no criminal history points because
    they, among other things, were too remote to be counted in the crimi-
    nal history computation. See U.S.S.G. § 4A1.2(e). Of these uncounted
    offenses at least one, a 1979 felony conviction for conspiring to
    deliver drugs to an inmate, was similar to the instant offense. Given
    the extent of Davis's criminal history, we cannot say that the district
    court abused its discretion in determining that it should depart above
    the guideline range pursuant to § 4A1.3, p.s.
    Davis also contends that the district court abused its discretion in
    departing to the extent that it did, and in failing to explain why a
    lesser departure would not have been adequate. When a sentencing
    court departs pursuant to § 4A1.3, p.s., the court typically must
    address each sentencing category -- or, in this case, each offense
    level -- and move to a higher one only after finding that each cate-
    gory is inadequate to reflect the seriousness of the defendant's record.
    See United States v. Rusher, 
    966 F.2d 868
    , 884 (4th Cir. 1992). Here,
    19
    after reviewing Davis's lengthy criminal history, the district court
    concluded that Davis should be sentenced as a career offender under
    § 4B1.1. Davis contends that the district court, by failing to provide
    specific reasons as to why each subsequent criminal offense level was
    not appropriate, did not comply with the mandate of Rusher. For the
    reasons that follow, we disagree.
    In United States v. Cash, 
    983 F.2d 558
    , 562 (4th Cir. 1992), this
    Court held that "[o]nce the district court determines that a departure
    under U.S.S.G. § 4A1.3, p.s. is warranted and that the defendant's
    prior criminal conduct is of sufficient seriousness to conclude that he
    should be treated as a career offender, the district court may depart
    directly to the guideline range applicable to career offenders similar
    to the defendant." Id. at 562; see also United States v. Hines, 
    943 F.2d 348
    , 354-55 (4th Cir. 1991) (per curiam). Here, Davis's criminal
    record, which includes prior convictions for, among other things,
    murder and assault with a dangerous weapon, is of sufficient serious-
    ness that he should be treated as a career offender. See U.S.S.G.
    § 4B1.1. Thus, the district court's decision to sentence Davis as a
    career offender was in complete accord with this Court's holding in
    Cash. As important, the district court's decision satisfies the mandate
    of Rusher, as this Court specifically held that
    analogizing to the career offender guideline provides a rea-
    soned basis for the extent of the departure. When a district
    court properly employs this approach, this determination
    includes an implicit finding that each successive Criminal
    History Category that would not produce a career offender
    sentence inadequately represents the seriousness of the
    defendant's criminal conduct. Therefore, we conclude that
    level by level consideration is unnecessary under these cir-
    cumstances.
    Cash, 
    983 F.2d at 562
    .
    Taylor's argument likewise lacks merit. Taylor had a robbery con-
    viction that was consolidated with another robbery conviction. Had
    the sentencing for these two offenses occurred independent of one
    another, Taylor would have been classified as a career offender in the
    instant case. As such, Taylor's situation is identical to the one faced
    20
    by this Court in Hines. In Hines, this Court affirmed a sentence
    imposed when the district court departed upward under § 4A1.3, p.s.
    and sentenced the defendant as a career offender because two of the
    defendant's prior crimes of violence had been consolidated for sen-
    tencing purposes and therefore did not constitute the two separate
    predicate felony convictions required to qualify the defendant as a
    career offender under § 4B1.3. Hines, 
    943 F.2d at
    353-54 (citing
    U.S.S.G. §§ 4A1.2(a), 4A1.2, comment. (n.3), and 4B1.2(3)). Other
    circuits agree with this result. See United States v. Gonzales, 
    929 F.2d 213
    , 217-20 (6th Cir. 1991); United States v. Dorsey, 
    888 F.2d 79
    , 80-
    81 (11th Cir. 1989). The same reasoning applies here. A departure to
    the career offender guideline range is proper because Taylor's con-
    duct qualifies him as a de facto career offender.
    B.
    Defendants also contend that the district court erred in calculating
    the weight of the drugs attributable to the conspiracy. To give due
    deference to a district court's application of the Sentencing Guide-
    lines, we review factual determinations for clear error and legal ques-
    tions de novo. See United States v. Blake, 
    81 F.3d 498
    , 503 (4th Cir.
    1996).
    Two of the packages that Lephew was to deliver to Davis and Tay-
    lor were intercepted by Postal Inspectors. The first package contained
    3.41 grams of marijuana, ten diazepam tablets, and 1.16 grams of a
    mixture containing d-methamphetamine. The second package con-
    tained a total of 10.83 grams of cocaine powder. In order to complete
    the guideline computations in this case, the district court had to deter-
    mine a total amount of illegal drugs associated to the conspiracy. To
    do so, the district court converted the known drug amounts from the
    last two packages into their marijuana equivalents in kilograms. See
    U.S.S.G. § 2D1.1, comment. (n.10). Here, the drugs in question were
    converted as follows:
    3.41 grams of marijuana = .00341 kg. of marijuana
    10 diazepam tablets = .00125 kg. of marijuana
    1.16 grams of d-methamphetamine = 1.16 kgs. of marijuana
    10.83 grams of cocaine = 2.16 kgs. of marijuana
    21
    The total of marijuana equivalents in the two packages, therefore, was
    3.324 kilograms. The district court divided that number in half to
    derive an average equivalent per package. Thus, the district court
    determined that the average quantity of drugs in each package was
    1.662 kilograms of marijuana. The district court multiplied this num-
    ber by 146 weeks, the number of weeks that the conspiracy existed.
    Under the district court's calculation, the total drug quantity attribut-
    able to the conspiracy was 242 kilograms of marijuana.
    On appeal, Defendants argue that the district court erred in finding
    the average quantity of drugs in each package to be 1.662 kilograms
    of marijuana. In particular, Defendants contend that the district court
    inaccurately assumed the delivery of cocaine, d-methamphetamine,
    and diazepam in every package delivered during the course of the
    conspiracy, when the record would only support two deliveries of
    cocaine and one delivery of d-methamphetamine and diazepam.
    According to Defendants, the weekly deliveries, with rare exception,
    only contained marijuana.
    To be sure, the evidence on this matter, all of which came from
    Lephew's testimony, is conflicting. When asked by the defense
    whether he only received cocaine twice, Lephew answered in the
    affirmative. Moreover, Lephew stated that he only delivered pills to
    Davis and Taylor on one occasion. However, when asked by the Gov-
    ernment if the drugs found in the first two packages were typical of
    the packages he delivered each week, Lephew answered in the affir-
    mative. In fact, Lephew specifically testified that the quantity of
    cocaine in the second intercepted package was close to the amount he
    usually received. Similarly, when asked during his grand jury testi-
    mony about the delivery of cocaine, Lephew responded that it would
    come maybe two or three times per month.
    Based on Lephew's trial and grand jury testimony, we cannot say
    that the district court's calculation as to the amount of cocaine and
    marijuana in each package was clearly erroneous. Although there is
    very little evidence that each package contained d-methamphetamine
    or diazepam tablets, even if those two drugs had not been considered
    by the district court, the total drug quantity attributable to Defendants
    in the conspiracy would be over 100 kilograms of marijuana equiva-
    lents. As a result, Defendants' base offense level would remain the
    22
    same. See U.S.S.G. § 2D1.1(c)(7) (base offense level of 26 for at least
    100 kilograms but less than 400 kilograms of marijuana). Thus, any
    error was harmless.
    VI.
    For the foregoing reasons, Defendants' convictions and sentences
    are affirmed.
    AFFIRMED
    23