United States v. Dickens , 82 F. App'x 830 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4128
SHUANE ANTELLE DICKENS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., District Judge.
(CR-97-128)
Submitted: November 14, 2003
Decided: December 16, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Oldric J. Labell, Jr., Newport News, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Janet S. Reincke, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DICKENS
OPINION
PER CURIAM:
A jury found Shuane Antelle Dickens guilty of conspiracy to dis-
tribute fifty grams or more of crack cocaine and distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). Dickens was sentenced
to 292 months of imprisonment, to be followed by a five-year term
of supervised release. Dickens timely appeals his conviction and sen-
tence, arguing, inter alia, that his indictment and sentence violate
Apprendi v. New Jersey, 530 U.S. 466 (2000).
On appeal, Dickens contends that because he was sentenced using
the statute criminalizing distribution of more than fifty grams of
crack, 21 U.S.C. § 841(b)(1)(A), it was error for the indictment to fail
to specify drug quantity and it was error for the trial court to fail to
instruct the jury that it must find the quantity of drugs for which Dick-
ens was responsible beyond a reasonable doubt. Dickens failed to
make these objections below, however, so his claims are reviewed for
plain error. See United States v. Mackins, 315 F.3d 399, 406 (4th
Cir.), cert. denied, 123 S. Ct. 2099 (2003).
Before a reviewing court may correct a trial error to which there
was no contemporaneous objection, three factors must be shown: (1)
there was error, (2) the error was plain, and (3) the error affected sub-
stantial rights. United States v. Cotton, 535 U.S. 625, 631-32 (2002).
An appellate court may exercise its discretion to correct the error
when all three factors are met and when the error "‘seriously affects
the fairness, integrity, or public reputation of judicial proceedings.’"
Id. (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).
In Dickens’ case, the evidence that he conspired to distribute more
than fifty grams of crack was "overwhelming" and "essentially uncon-
troverted." Id.; Mackins, 315 F.3d at 408. The Government presented
the testimony of fourteen witnesses who either sold crack to Dickens
or purchased crack from Dickens. Given the totality of the evidence
against him, we cannot say that any error stemming from the indict-
ment or the jury instructions affected the fairness or integrity of Dick-
ens’ conviction and sentence.
UNITED STATES v. DICKENS 3
Dickens’ other arguments are likewise without merit. He objects to
the admission of alleged hearsay statements. These statements were
either properly admitted under the co-conspirator exception to the
hearsay rule, see Fed. R. Evid. 801(d)(2)(E), or their admission was
harmless. Next, Dickens argues that his right to confront witnesses
was violated when the district court curtailed his cross-examination
of a witness. Dickens has failed to demonstrate that the trial court’s
ruling was an abuse of discretion. See United States v. McMillon, 14
F.3d 948, 955-56 (4th Cir. 1994). Finally, Dickens’ assertion that the
district court’s jury instructions inadequately stated the law on con-
spiracy is expressly belied by the record.
Accordingly, we affirm the judgment of the district court. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED