United States v. Byrd , 30 F. App'x 38 ( 2002 )

ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4203
ROGER BYRD,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4204
HERMAN JUNIOR BYRD,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4205
CHRISTIAN DEXTER BYRD,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-97-109-V)
Submitted: November 20, 2001
Decided: January 15, 2002
2 UNITED STATES v. BYRD
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Car-
olina; Noell P. Tin, Eben T. Rawls, III, RAWLS & DICKINSON,
P.A., Charlotte, North Carolina, for Appellants. Gretchen C. F. Shap-
pert, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, Roger Byrd ("R. Byrd"), Herman
Junior Byrd ("H. Byrd"), and Christian Dexter Byrd ("C. Byrd")
appeal their convictions and sentences. The Byrds were convicted of
one count of conspiracy to possess with intent to distribute and dis-
tribute a quantity of cocaine and cocaine base in violation of 21
U.S.C. § 846 (1994). H. Byrd and C. Byrd were each convicted of one
count of possession with intent to distribute cocaine and cocaine base
in violation of 21 U.S.C.A. § 841 (West 1999), and 18 U.S.C. § 2(1994). This court affirmed the convictions and sentences in an opin-
ion issued August 9, 2000. Subsequently, this court granted the
Appellants’ petitions for rehearing and placed the appeals in abeyance
pending United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en
banc), petition for cert. filed Sept. 20, 2001 (No. 01-6398), and
UNITED STATES v. BYRD 3
United States v. Perez, 2001 WL 37520 (4th Cir. Jan. 16, 2001) (No.
00-4036) (unpublished). On rehearing, we affirm the convictions and
affirm C. Byrd’s sentence. We vacate the sentences imposed on R.
Byrd and H. Byrd and remand with instructions that those sentences
be imposed in accordance with § 841(b)(1)(C).
We commence by disposing of the issues raised in the Appellants’
brief. R. Byrd contends that: (1) his Sixth Amendment right to coun-
sel was violated by the admission of a jailhouse informant’s testi-
mony; (2) the evidence was insufficient to sustain his conviction; and
(3) he was not given adequate notice of the convictions upon which
the Government intended to rely in seeking an enhanced sentence. We
find R. Byrd’s right to counsel was not violated because there was no
evidence the Government and its informant "took some action,
beyond merely listening, that was designed deliberately to elicit
incriminating remarks." Kuhlmann v. Wilson, 477 U.S. 436, 459
(1986). After viewing the evidence in the light most favorable to the
Government, see Glasser v. United States, 315 U.S. 60, 80 (1942), we
find there was sufficient evidence to sustain his conspiracy convic-
tion. See, e.g., United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993) (conspiracy shown "by [the defendants’] mutual interest in sus-
taining the overall enterprise of catering to the ultimate demands of
a particular drug consumption market."). We also conclude R. Byrd
was given adequate notice of the convictions relied upon by the Gov-
ernment in seeking an enhanced sentence under 21 U.S.C. § 851(1994).
H. Byrd contends that: (1) the district court erred by denying his
motion to suppress evidence; (2) the district court erred in its determi-
nation of the quantity of drugs attributed to him for sentencing pur-
poses; (3) the district court erred by enhancing H. Byrd’s sentence
based on his possession of a firearm; and (4) his base offense was
improperly enhanced on the basis that he was a manager of the con-
spiracy.
With regard to the admission of evidence seized during a 1991
incident, we find any error was harmless. See United States v. Ford,
986 F.2d 57, 60 n.2 (4th Cir. 1993) (noting improperly admitted evi-
dence is reviewed for harmless error). The evidence against H. Byrd
was substantial. We accordingly conclude the verdicts in his case
4 UNITED STATES v. BYRD
would have been the same even if the evidence seized during the chal-
lenged search had been suppressed.
We review the district court’s factual findings made at sentencing
for clear error. See United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999). We find the district court did not clearly err in its determi-
nation of the amount of crack cocaine attributed to H. Byrd for sen-
tencing purposes. We also find there was no clear error in increasing
H. Byrd’s base offense level for possession of a weapon or for his
managerial role in the offense.
C. Byrd contends the district court did not make the requisite fac-
tual findings under Rule 32(c)(1) of the Federal Rules of Criminal
Procedure in sustaining the Government’s objections to the presen-
tence investigation report ("PSR"). "The purpose of this rule is to
ensure that a record is made as to how the district court ruled on any
alleged inaccuracy in the PSR." United States v. Walker, 29 F.3d 908,
911 (4th Cir. 1994). The court does not need to articulate its finding
with "minute specificity." Id. (internal quotation omitted). We find the
court complied with Rule 32(c)(1). When it sustained the Govern-
ment’s objections, the court adopted the Government’s summaries of
trial testimony submitted in support of the Government’s objections.
See United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994) (by dis-
cerning the factual basis for the district court’s decision, appellate
court can undertake a meaningful review).
In the case at bar, the indictment did not specify drug quantities.
At sentencing, the district court found by a preponderance of the evi-
dence that in excess of 1000 grams of cocaine and cocaine base were
attributable to R. Byrd, at least one-and-a-half kilograms of crack
cocaine were attributable to H. Byrd, and 150 to 500 grams of cocaine
base were attributable to C. Byrd. Accordingly, for the conspiracy
conviction, each Appellant was sentenced under § 841(b)(1)(A),
which authorizes a term of imprisonment of not less than ten years or
no more than life.
R. Byrd was sentenced to a mandatory life term of imprisonment
and ten years’ supervised release because he had two prior felony
drug convictions. See § 841(b)(1)(A). Based upon the base offense
level and the criminal history category, H. Byrd was sentenced to a
UNITED STATES v. BYRD 5
mandatory life term of imprisonment for the conspiracy conviction
and forty years’ imprisonment for the possession conviction to run
concurrently. In addition, H. Byrd was sentenced to ten years’ super-
vised release. C. Byrd had a base offense level of 37 and was placed
in criminal history category I. He was sentenced to concurrent terms
of 210 months’ imprisonment and ten years’ supervised release.
In accordance with Promise and United States v. Cotton, 261 F.3d
397, 403-04 (4th Cir. 2001), we find the sentences imposed upon R.
Byrd and H. Byrd are plain error and should be vacated and
remanded. Upon remand, the district court shall sentence both R.
Byrd and H. Byrd in accordance with § 841(b)(1)(C). Because C.
Byrd was sentenced below the statutory maximum authorized by
§ 841(b)(1)(C), we find no need to vacate his sentence. See United
States v. Lewis, 235 F.3d 215, 219 (4th Cir. 2000), cert. denied, 122
S. Ct. 39 (2001); United States v. Pratt, 239 F.3d 640, 647 n.4 (4th
Cir. 2001).
Accordingly, we affirm the convictions and Christian Dexter
Byrd’s sentence. We vacate the sentences imposed upon Roger Byrd
and Herman Junior Byrd and remand for resentencing. We dispense
with oral argument because the facts and legal conclusions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART