United States v. Fowler ( 2003 )

ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4657
STEVEN FOWLER,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4697
ANTHONY SAMUELS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4706
TIMOTHY TABOR,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-10)
Submitted: July 9, 2003
Decided: September 4, 2003
2 UNITED STATES v. FOWLER
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Bryan Emery Gates, Jr., Winston-Salem, North Carolina; Thomas
Franklin Loflin, III, LOFLIN & LOFLIN, Durham, North Carolina;
Paul K. Sun, Jr., SMITH, HELMS, MULLISS & MOORE, L.L.P.,
Raleigh, North Carolina, for Appellants. Sandra Jane Hairston, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Steven Fowler, Anthony Samuels, and Timothy Tabor were
indicted on one count of conspiracy to distribute in excess of fifty
grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2000). The conspiracy lasted from approximately June 1996 until
January 1999. Based on a preponderance of the evidence, the district
court found each defendant responsible for at least 1.5 kilograms of
crack. Fowler received a life sentence; Samuels and Tabor each
received a 360-month sentence. They now appeal their convictions
and sentences. We affirm.
I
At trial, Clifton Lewis Belcher testified that by October 1996, he
and Fowler were traveling at least weekly from Durham, North Caro-
UNITED STATES v. FOWLER 3
lina to New York City to purchase crack cocaine. Belcher stated that
they never returned to Durham with less than one-half kilogram of
crack. By April 1997, Samuels was giving Fowler and Belcher money
to purchase at least 125 grams of crack for him on the New York
trips. In mid-1997, Fowler and Belcher began returning to Durham
with powder cocaine, which they then cooked into crack and distrib-
uted. Samuels and Tabor showed them how to convert powder
cocaine into crack. Additionally, Tabor sold crack for the organiza-
tion. Fowler supplied Tabor at least weekly with 125 grams of crack.
A jury convicted the three defendants. At sentencing, the district
court found that each defendant was responsible for at least 1.5 kilo-
grams of crack. The court sentenced Fowler to life in prison. Tabor
and Samuels each received a 360-month sentence.
II
Fowler’s sole argument in his formal brief is that the court improp-
erly admitted a taped telephone conversation among Belcher, Fow-
ler’s girlfriend, and Fowler. Contrary to Fowler’s claim that the
conversation constituted inadmissible hearsay, we find that Fowler’s
statements on the tape were an admission by a party-opponent. They
were offered against Fowler and were his own statements. See Fed.
R. Evid. 801(d)(2)(A); United States v. Price, 13 F.3d 711, 720 (3rd
Cir. 1994); United States v. Hernandez, 829 F.2d 988, 994 (10th Cir.
1987). Admission of the tape was not an abuse of discretion.
III
Samuels’ offense level was enhanced for firearm possession. See
U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998). There was
evidence that Belcher carried, used, and possessed a firearm in fur-
therance of the conspiracy. Indeed, Belcher freely admitted that he
was "the right hand man" for Fowler and Samuels, and that customers
knew he would shoot them if they did not pay for the drugs they
bought. Belcher’s possession of a firearm was attributable to his
coconspirator, Samuels. See United States v. Hunter, 19 F.3d 895, 896
(4th Cir. 1994). Enhancement of Samuels’ sentence under USSG
§ 2D1.1(b)(1) was not clearly erroneous.
4 UNITED STATES v. FOWLER
IV
Fowler, Samuels, and Tabor contend that their respective sentences
violate the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). As
a consequence, they argue that they were subject to prison terms of
no more than twenty years under 21 U.S.C. § 841(b)(1)(C) (2000).
"Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt."
Apprendi, 530 U.S. at 490. With respect to drug trafficking crimes
whose penalties are set forth at 21 U.S.C. § 841(b), "Apprendi dictates
that in order to authorize the imposition of a sentence exceeding the
maximum allowable without a jury finding of a specific threshold
drug quantity, the specific threshold quantity must be treated as an
element of an aggravated drug trafficking offense, i.e., charged in the
indictment and proved to the jury beyond a reasonable doubt." United
States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc),
cert. denied, 535 U.S. 1098 (2002). Twenty years is the maximum
sentence for cocaine offenses governed by § 841(b). See 21 U.S.C.
§ 841(b)(1)(C); Promise, 255 F.3d at 159.
During deliberations, the jury submitted the following question to
the court, "Must each individual person be responsible for distribution
of fifty grams of cocaine to be guilty of the charge?" The court
responded, "[I]t is not necessary that each individual be responsible
for distribution of fifty grams of cocaine to be guilty of the charge.
The weight of any drugs distributed is not an element of the offense."
Subsequently, the jury asked, "What is the point or significance of the
fifty grams listed in the indictment?" The court answered:
Remember I told you a while ago that is not an element of
the offense. The significance of that, if any, is that [if] a
defendant is convicted, the amount of drugs could bear on
the punishment for the offense for which they are convicted.
It is not an element of the offense.
At sentencing, at least one of the defendants, Samuels, made an
objection invoking Jones v. United States, 526 U.S. 227 (1999). This
objection was sufficient to preserve the Apprendi issue for appellate
review. See United States v. Mackins, 315 F.3d 399, 407 (4th Cir.
2003). It is unclear whether Fowler and Tabor also invoked Jones at
UNITED STATES v. FOWLER 5
sentencing. It is appropriate, therefore, to apply the higher standard
of harmless-error review to all defendants. "In undertaking harmless
error review, we impose the burden on the Government to show,
beyond a reasonable doubt, that the error did not affect [the defen-
dants’] substantial rights or, in other words, that it did not prejudice
them." Id. "Prejudice, in this context, means that the error actually
affected the outcome of the proceedings, i.e., the defendants’ sen-
tences were longer than that to which they would otherwise be sub-
jected." Id. (internal quotation marks and citations omitted). In the
present case, the district court’s failure to submit drug quantity to the
jury did not affect the defendants’ substantial rights because the drug
quantity was alleged in the indictment and "the trial produced ‘uncon-
tested and overwhelming evidence’ of drug quantity sufficient to sus-
tain the sentence." United States v. Montgomery, 262 F.3d 233, 252
(4th Cir. 2001). Section 841(b)(1)(A) sets the maximum punishment
for a violation involving 50 grams or more of crack cocaine at life
imprisonment. The evidence establishes that the defendants were
responsible for an amount far greater than 50 grams of crack. Davis’
testimony that in 1998 he and Belcher returned to Durham with a total
of eleven kilograms of powder cocaine is alone sufficient to find the
defendants responsible for over 50 grams of crack. One gram of
cocaine powder converts to approximately .89 grams of crack and the
amount of crack—well in excess of 50 grams—to which eleven kilo-
grams of powder cocaine converts is attributable to all members of
the conspiracy. See United States v. Carrington, 301 F.3d 204, 211
(4th Cir. 2002).
V
We grant the motions to file pro se supplemental briefs. We have
considered the issues raised in those briefs and not discussed else-
where in this opinion and find them to be without merit. We affirm
the convictions and sentences. We deny Fowler’s motion to compel
a reply and his motion to be personally served with all information.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED