United States v. Byrd , 55 F. App'x 115 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4265
JOSEPH BYRD, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-98-998)
Argued: December 4, 2002
Decided: January 6, 2003
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded with instructions by unpublished per curiam
opinion.
COUNSEL
ARGUED: Andrew David Grimes, ANDREW D. GRIMES, P.A.,
Summerville, South Carolina, for Appellant. Thomas Ernest Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
States Attorney, A. Bradley Parham, Assistant United States Attor-
ney, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
2 UNITED STATES v. BYRD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joseph Byrd, Jr. (Byrd) appeals his sentence imposed by the district
court following his guilty plea to conspiracy to possess with intent to
distribute and to distribute a "quantity" of cocaine and a "quantity" of
cocaine base (crack), 21 U.S.C. §§ 841(a)(1) and 846. (J.A. 9).
Although Byrd challenges his sentence on numerous fronts, he princi-
pally argues that his sentence violated the dictates of Apprendi v. New
Jersey, 530 U.S. 466 (2000), and that the district court erred when it
sentenced him as a career offender, United States Sentencing Com-
mission, Guidelines Manual, (USSG) § 4B1.1, because his two prior
state felony drug offenses were related as part of a single common
scheme or plan and thus constituted one conviction instead of the two
convictions necessary for career offender status. For the reasons
stated below, we reject Byrd’s Apprendi arguments, but nevertheless
vacate his sentence and remand the case to the district court with
instructions to determine whether Byrd’s two prior state felony drug
offenses were related as part of a single common scheme or plan by
applying the factors set forth in United States v. Breckenridge, 93
F.3d 132 (4th Cir. 1996).
I
A
In January 1998, an informant told Drug Enforcement Administra-
tion (DEA) agents that Byrd was a cocaine dealer and that he was
storing cocaine at a Storage Trust Company storage unit (Unit #730)
in Greenville, South Carolina. On May 6, 1998, a drug detection dog
alerted on Unit #730, which was rented to Macy Byrd, Byrd’s aunt.
On May 8, 1998, the DEA agents executed a search warrant at Unit
#730 and seized numerous plastic baggies that contained a residue
that subsequently tested positive for cocaine.
UNITED STATES v. BYRD 3
On November 16, 1998, Byrd entered Unit #730 three times. On
November 20, 1998, the DEA agents executed a second search war-
rant at Unit #730 and seized 3.25 kilograms of cocaine, $70,020 in
cash, five one-kilogram shells containing cocaine residue, and two
sets of scales. Byrd’s fingerprints were subsequently detected on the
scales.
After the search, Everette Byrd (Everette) and Frank Henderson
(Henderson) arrived at the unit. After they arrived, Everette got out
of the car, unlocked the door to Unit #730, and went inside. While
Everette was entering the storage unit, Henderson stayed in the car.
Subsequently, the DEA agents arrested both of them. Thereafter, the
DEA agents searched Everette’s residence and seized 69.77 grams of
crack, 64.26 grams of marijuana, $3,500 in cash, an electronic scale,
and three firearms.
B
On December 15, 1998, a federal grand jury sitting in the District
of South Carolina indicted Byrd and Everette on two counts. Count
One charged the defendants with conspiracy to possess with the intent
to distribute and to distribute a "quantity" of cocaine and a "quantity"
of crack, 21 U.S.C. §§ 841(a)(1) and 846. (J.A. 9). Count Two
charged the defendants with possession with the intent to distribute a
"quantity" of cocaine, 21 U.S.C. § 841(a)(1). (J.A. 10).
Byrd’s trial began on November 8, 1999. On November 9, 1999,
Byrd pled guilty to the conspiracy count. During the plea hearing, the
government presented a brief summary of its evidence against Byrd.
In preparation for sentencing, a United States Probation Officer
prepared a Presentence Investigation Report (PSR). According to the
PSR, Byrd’s base offense level was thirty-two, which was based on
11.05 kilograms of cocaine, USSG § 2D1.1(c)(4). The 11.05 kilo-
grams of cocaine was based on the items recovered from Unit #730
on November 20, 1998; specifically, the 3.25 kilograms of cocaine,
the five one-kilogram shells which contained cocaine residue, and the
$70,020 in cash (the equivalent of 2.8 kilograms of cocaine). Because
the PSR determined that Byrd was a career offender, Byrd’s offense
level was thirty-seven, id. § 4B1.1(A) (offense level of thirty-seven if
4 UNITED STATES v. BYRD
the statutory maximum sentence for the offense of conviction is life).
According to the PSR, Byrd’s career offender status was based on his
two prior state felony drug convictions for distribution of cocaine and
the fact that his instant offense of conviction carried a maximum sen-
tence of life under 21 U.S.C. § 841(b)(1)(A) (providing a statutory
maximum sentence of life for an offense involving at least five kilo-
grams of cocaine). With regard to Byrd’s two prior state felony drug
convictions, the first offense involved a cocaine sale on June 30, 1989
to an undercover agent of the Greenville, South Carolina Police
Department at the C & C garage on Green Avenue in Greenville. The
second offense involved a cocaine sale to ostensibly the same under-
cover agent on July 7, 1989 at the Jetco Station on Green Avenue in
Greenville. Byrd was arrested for both offenses on December 2, 1989
and was charged in two separate indictments in General Sessions
Court in Greenville. Byrd pled guilty to both indictments and, on June
26, 1990, was sentenced to concurrent terms of seven years’ impris-
onment. Byrd was paroled in November 1991.
Byrd’s offense level was reduced by two levels for acceptance of
responsibility; consequently, Byrd’s offense level of thirty-five, cou-
pled with his criminal history category of six, resulted in a Sentencing
Guidelines range of 292 to 365 months’ imprisonment.
Byrd objected to the PSR’s drug quantity and career offender rec-
ommendations. At sentencing, the district court overruled Byrd’s
objection to the PSR’s drug quantity determination on the ground that
the PSR’s recommendation was supported by substantial evidence,
including Byrd’s fingerprints on the scales. Without addressing the
factors set forth in Breckenridge, the district court overruled Byrd’s
objection to the PSR’s career offender determination on the ground
that Byrd’s prior state drug felony offenses were "separate." (J.A. 40).
The district court then sentenced Byrd to a term of imprisonment of
365 months, a term of supervised release of five years, and a special
assessment of $100. On March 27, 2000, Byrd noted a timely appeal.
II
We first consider whether Byrd’s sentence is invalid under the
Supreme Court’s decision in Apprendi, which was decided while this
case was pending on appeal. Byrd did not raise this issue before the
UNITED STATES v. BYRD 5
district court, so we apply the plain error standard of review. United
States v. Carter, 300 F.3d 415, 428-29 (4th Cir.) (discussing applica-
tion of the United States v. Olano, 507 U.S. 725 (1993), plain error
standard to Apprendi claims not raised in the district court), cert.
denied, 2002 WL 31511362 (U.S. December 2, 2002).
The indictment to which Byrd pled guilty did not specify a particu-
lar threshold drug quantity. Further, drug quantity was determined by
the district court at sentencing. Because Byrd received a sentence of
365 months, five months above the thirty-year statutory maximum for
a violation of 21 U.S.C. § 841 where there is no jury finding of a spe-
cific threshold drug quantity and the defendant has a prior felony drug
offense, id. § 841(b)(1)(C), it is clear that an error occurred in sen-
tencing Byrd and that the error was plain. United States v. Promise,
255 F.3d 150, 156-60 (4th Cir. 2001) (en banc), cert. denied, 122
S. Ct. 2296 (2002).
We find, however, that any resulting error did not "‘seriously
affect[ ] the fairness, integrity or public reputation of judicial proceed-
ings,’" Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936)), based on the overwhelming and essentially
uncontroverted evidence presented at the guilty plea hearing and at
sentencing indicating that Byrd was responsible for far more than the
500 grams of cocaine necessary to sentence him under 21 U.S.C.
§ 841(b)(1)(B), which authorizes a forty-year maximum term of
imprisonment. United States v. Cotton, 122 S. Ct. 1781, 1786 (2002).1
We also note that, in light of the indictment’s failure to allege drug
quantity, the district court, without having the benefit of the Supreme
Court’s decision in Apprendi, incorrectly informed Byrd that he faced
a possible sentence of a minimum of not less than ten years and a
maximum of life imprisonment. Under 21 U.S.C. § 841(b)(1)(C),
there is no mandatory minimum, and the maximum possible sentence
is thirty years where the defendant has a prior felony drug offense.
Thus, in retrospect, the district court violated Rule 11(c)(1) of the
1
We also find no merit to Byrd’s contention that the district court
clearly erred when it found that he was accountable for 11.05 kilograms
of cocaine for purposes of calculating his offense level under the Sen-
tencing Guidelines.
6 UNITED STATES v. BYRD
Federal Rules of Criminal Procedure. United States v. Martinez, 277
F.3d 517, 530 (4th Cir.), cert. denied, 123 S. Ct. 200 (2002). We find
that Byrd cannot establish plain error in this regard, however, because
he cannot show that he would not have pled guilty absent this error.
Id. at 533.
Finally, under our circuit precedent, we must reject Byrd’s claims
that 21 U.S.C. § 841 is unconstitutional after Apprendi, United States
v. Chong, 285 F.3d 343, 346-47 (4th Cir. 2002) (21 U.S.C. § 841 is
facially constitutional), and that Apprendi requires the government to
plead a defendant’s prior convictions in the indictment, United States
v. Cristobal, 293 F.3d 134, 147-48 (4th Cir.) (Apprendi does not
require prior convictions to be pleaded or proven), cert. denied, 123
S. Ct. 396 (2002).
III
We next consider Byrd’s contention that he was improperly sen-
tenced as a career offender because his two prior state felony drug
offenses, one occurring on June 30, 1989 and the other occurring on
July 7, 1989, were related as part of a single common scheme or plan
and thus constituted one conviction instead of the two convictions
necessary for career offender status. The district court held that the
two offenses were separate offenses. Our review of the district court’s
Sentencing Guidelines determinations is deferential. Buford v. United
States, 532 U.S. 59, 60 (2001).
Under USSG § 4B1.1, a defendant is a career offender if
(1) the defendant was at least 18 years old at the time the
defendant committed the instant offense of conviction; (2)
the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense, and (3)
the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
Id. § 4B1.1.
Byrd meets the first two conditions of USSG § 4B1.1 because he
was eighteen years old at the time he committed the instant offense
UNITED STATES v. BYRD 7
of conviction and because the instant offense of conviction is a felony
that is a controlled substance offense. The point of contention
between the parties is whether Byrd has at least two prior felony con-
victions for a controlled substance offense.
The term "two prior felony convictions" is defined in USSG
§ 4B1.2(c) as follows:
The term "two prior felony convictions" means (1) the
defendant committed the instant offense of conviction sub-
sequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense
(i.e., two felony convictions of a crime of violence, two fel-
ony convictions of a controlled substance offense, or one
felony conviction of a crime of violence and one felony con-
viction of a controlled substance offense), and (2) the sen-
tences for at least two of the aforementioned felony
convictions are counted separately under the provisions of
§ 4A1.1(a), (b), or (c).
Id. § 4B1.2(c). There is no dispute that Byrd has at least two prior fel-
ony convictions for a controlled substance offense. The issue is
whether the sentences for the two prior controlled substance offenses
are counted separately under the provisions of USSG § 4A1.1(a),
which awards three criminal history points for each "prior sentence of
imprisonment exceeding one year and one month." Id. § 4A1.1(a).
USSG § 4A1.2(a)(2) instructs us that "[p]rior sentences imposed in
unrelated cases are to be counted separately." Id. § 4A1.2(a)(2). How-
ever, "[p]rior sentences imposed in related cases are to be treated as
one sentence for purposes of § 4A1.1(a), (b), and (c)." Id.
§ 4A1.2(a)(2). In Application Note 3 to USSG § 4A1.2, the term "re-
lated cases" is defined in relevant part as follows:
Prior sentences are not considered related if they were for
offenses that were separated by an intervening arrest (i.e.,
the defendant is arrested for the first offense prior to com-
mitting the second offense). Otherwise, prior sentences are
considered related if they resulted from offenses that (A)
occurred on the same occasion, (B) were part of a single
8 UNITED STATES v. BYRD
common scheme or plan, or (C) were consolidated for trial
or sentencing.
Id. § 4A1.2, comment. (n.3).
In this case, Byrd’s two prior state felony drug offenses were not
separated by an intervening arrest. Further, the "same occasion" prong
does not apply because the conduct underlying Byrd’s first prior
offense did not occur on the same occasion as the conduct underlying
Byrd’s second prior offense. From the record before this court, one
cannot find that the "consolidation" prong applies because the record
contains no materials from Byrd’s state court offenses except for the
information used in the PSR. Thus, Byrd must establish that his prior
offenses were part of a single common scheme or plan for this court
to conclude that his two prior state felony drug offenses were related.
Although there is a split in the circuits as to the proper test for
determining when prior offenses are part of a single common scheme
or plan, compare United States v. Ali, 951 F.2d 827, 828 (7th Cir.
1992) (holding that prior offenses are part of the same scheme or plan
only if the prior offenses were jointly planned or, at a minimum, the
commission of one offense necessarily required the commission of
another), with Breckenridge, 93 F.3d at 138-40 (applying eight-factor
test), this court has identified eight factors for district courts to con-
sider in determining whether prior offenses are part of a single com-
mon scheme or plan: (1) commission within a short period of time;
(2) close geographic proximity; (3) same substantive offenses; (4)
directed at a common victim; (5) solved in a single criminal investiga-
tion; (6) similar modus operandi; (7) animated by the same motive;
and (8) tried and sentenced separately only because of an accident of
geography. Breckenridge, 93 F.3d at 138.
In explaining how these factors should be applied, Breckenridge
states that all eight factors do not have to be present for there to be
a common scheme or plan. Id. Breckenridge also notes that the most
significant factors to a finding that prior offenses are related are tem-
poral proximity, geographic proximity, and being the same substan-
tive offense. Id.In this case, the district court did not apply the Breckenridge fac-
tors; rather, without addressing the Breckenridge factors, the district
UNITED STATES v. BYRD 9
court overruled Byrd’s objection to the PSR’s career offender deter-
mination on the ground that Byrd’s prior state drug felony offenses
were "separate." (J.A. 40).
The district court’s failure to apply the Breckenridge factors or to
give reasons supporting its conclusion that Byrd’s two prior state fel-
ony drug offenses were "separate," id., makes meaningful appellate
review of Byrd’s Breckenridge claim inappropriate at this time. The
more prudent course here is to vacate Byrd’s sentence and remand the
case to the district court with instructions to apply the Breckenridge
factors to Byrd’s two prior state felony drug offenses.
IV
For the reasons stated herein, we vacate Byrd’s sentence and
remand the case to the district court with instructions to the district
court to determine whether Byrd’s two prior state felony drug
offenses were related as part of a single common scheme or plan by
applying the factors set forth in Breckenridge. If after applying the
Breckenridge factors the district court concludes that Byrd’s two prior
state felony drug offenses are not related, the district court may reim-
pose the same career offender sentence it imposed at Byrd’s original
sentencing. However, if the district court concludes that Byrd’s two
prior state felony drug offenses are related, Byrd may not be sen-
tenced as a career offender and must be resentenced within the appro-
priate Sentencing Guidelines range.2
VACATED AND REMANDED WITH INSTRUCTIONS
2
Byrd also claims that he received constitutionally ineffective assis-
tance of counsel in the district court. Because the record does not conclu-
sively establish that Byrd’s counsel was constitutionally ineffective, this
claim is not cognizable on direct appeal and must be raised under 28
U.S.C. § 2255. United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999), cert. denied, 528 U.S. 1096 (2000). Finally, we have reviewed the
additional claims raised by Byrd in his pro se supplemental brief and find
those additional claims to be without merit.