United States v. Feurtado

Filed: September 23, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 97-4008(L)
(CR-96-325, CR-95-669)
United States of America,
Plaintiff - Appellee,
versus
Anthony Feurtado, etc., et al,
Defendants - Appellants.
O R D E R
The court further amends its opinion filed September 3, 1999,
and amended September 8, 1999, as follows:
On page 10, first paragraph, lines 13-14 -- the citation to
United States v. Jarrell is corrected to end “(4th Cir. 1998).”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Filed: September 8, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 97-4008(L)
(CR-96-325, CR-95-669)
United States of America,
Plaintiff - Appellee,
versus
Anthony Feurtado, etc., et al,
Defendants - Appellants.
O R D E R
The court amends its opinion filed September 3, 1999, as
follows:
On page 2, section 2 -- the defendant-appellant in No. 97-4585
is corrected to read “LANCE FEURTADO, a/k/a Desman Smith, a/k/a
Lawrence M. Jones, a/k/a Pie, a/k/a Desmond Smith.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY FEURTADO, a/k/a Tony
No. 97-4008
Feurtado, a/k/a Anthony Paul, a/k/a
Anthony Greene, a/k/a Anthony
Lamar Brown, a/k/a Ginzo, a/k/a
Gap, a/k/a Pretty Tony,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4582
WILLIE GLOVER, a/k/a Jerry Glover,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4583
GERALD BOOKER, a/k/a Linda S.
Buggs, a/k/a Gerald R. Smith, a/k/a
Rufus Vair,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4584
KENDALL FEURTADO, a/k/a George
Kendall, a/k/a Unc,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4585
LANCE FEURTADO, a/k/a Desman Smith,
a/k/a Lawrence M. Jones, a/k/a Pie,
a/k/a Desmond Smith,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4590
LANCE FEURTADO, a/k/a Desmen
Smith, a/k/a Lawrence Jones, a/k/a
Pie,
Defendant-Appellant.
2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY FEURTADO, a/k/a Tony
No. 97-4829
Feurtado, a/k/a Anthony Paul, a/k/a
Anthony Greene, a/k/a Anthony
Lamar Brown, a/k/a Ginzo, a/k/a
Gap, a/k/a Pretty Tony,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Solomon Blatt, Jr., Senior District Judge.
(CR-96-325, CR-95-669)
Argued: June 11, 1999
Decided: September 3, 1999
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed in part and remanded with instructions by published opin-
ion. Judge Widener wrote the opinion, in which Judge Niemeyer and
Judge King joined.
_________________________________________________________________
COUNSEL
ARGUED: James Harold Feldman, Jr., LAW OFFICES OF ALAN
ELLIS, Ardmore, Pennsylvania; William Rhett Eleazer, ELEAZER &
PERRY, L.L.P., Columbia, South Carolina, for Appellants. John
Michael Barton, Assistant United States Attorney, Columbia, South
Carolina, for Appellee. ON BRIEF: Alan Ellis, Peter Goldberger,
3
LAW OFFICES OF ALAN ELLIS, Ardmore, Pennsylvania, for
Appellant Anthony Feurtado; Jan Simpson Strifling, Columbia, South
Carolina, for Appellant Booker; Leesa Washington, FEDERAL PUB-
LIC DEFENDER'S OFFICE, Greenville, South Carolina, for Appel-
lant Kendall Feurtado; Heather Lea Smith, Columbia, South Carolina,
for Appellant Lance Feurtado; William Clifford Wood, Jr., NELSON,
MULLINS, RILEY & SCARBOROUGH, Columbia, South Carolina,
for Appellant Davis. J. Rene Josey, United States Attorney, Cameron
G. Chandler, Assistant United States Attorney, Columbia, South Car-
olina, for Appellee.
_________________________________________________________________
OPINION
WIDENER, Circuit Judge:
In this consolidated appeal, codefendants Anthony Feurtado, Willie
Glover, Gerald Booker, Kendall Feurtado, and Lance Feurtado
entered conditional pleas of guilty to conspiracy to possess with intent
to distribute and conspiracy to distribute cocaine and cocaine base and
heroin in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.
With the exception of Willie Glover, the defendants also entered con-
ditional pleas of guilty to at least one count of money laundering in
violation of 18 U.S.C. § 1956. All defendants preserved the right to
and now appeal the district court's denial of their motions filed prior
to the guilty pleas, including their motions to dismiss their indict-
ments with prejudice based on prosecutorial misconduct. All of them
also challenge their sentences as in violation of the plea agreement.
Lance Feurtado and Gerald Booker claim a violation of the Speedy
Trial Act. Finally, Glover asserts that the evidence does not support
the district court's finding of the amount of cocaine attributable to
him. We affirm on all issues except the sentences imposed in viola-
tion of the plea agreement, which we remand to the district court for
either resentencing or withdrawal of the guilty pleas.1
_________________________________________________________________
1 Anthony Feurtado's July 19, 1999 Motion for Reconsideration of our
May 26, 1999 denial of his Motion to File a Supplemental Pro Se Brief
is denied.
Any other outstanding motion not specifically mentioned in this opin-
ion is denied.
4
I.
Defendants first contend that the district court erred when it dis-
missed the initial indictment against them without prejudice instead
of with prejudice as they had requested. On October 18, 1995, a Fed-
eral Grand Jury in Columbia, South Carolina, initially indicted defen-
dants on charges related to a substantial drug organization. In so
doing it heard the testimony of South Carolina Law Enforcement
Division Agent, Charles McNair. The argument goes that, in the
course of his Grand Jury testimony, Agent McNair overstepped his
bounds when he connected defendants to a series of New York homi-
cides, including the killing of a police officer, unrelated to the charges
for which they were being indicted.
Defendants initially moved that the indictment be dismissed due to
prosecutorial misconduct. The motion, of course, implied dismissal
with prejudice. Attached to that motion was an affidavit by the lawyer
who represented one individual actually convicted for one of the mur-
ders in which he stated that "[a]t no time was a person named
Anthony Feurtado ever mentioned as being involved in the murder or
as a coconspirator to its commission." A hearing on the matter was
held on March 27, 1996, at which Agent McNair testified that while
he based his testimony regarding the connection between the Feurtado
drug organization and the murder of Officer Byrnes on a conversation
with a New York City police detective, he later learned that there was
in fact no connection between the two. The district court decided that
"the only misconduct [attributable to the government] . . . was unin-
tentional misconduct."2 Accordingly, the district court dismissed the
_________________________________________________________________
2 Defendants contend that this finding of no intentional misconduct was
clearly erroneous and ask that we dismiss their indictments with preju-
dice on that basis. We find, however, that the district court's decision in
that regard was essentially a decision as to the weight of evidence and
a credibility determination, and as such it is entitled to great deference
by this court. United States v. Dickerson, 166 F.3d 667, 676 n.6 (4th Cir.
1999) (citing United Stated v. Oregon State Med. Soc'y, 343 U.S. 326
(1952)). Not only did the court review the grand jury transcripts, it also
held a hearing at which it heard testimony from Agent McNair regarding,
among other things, the motivation behind his testimony and his belief
in the truth of his statements at the time. Given the numerous sources
from which Agent McNair's information came, the district court's deter-
mination that he "acted with the best of intentions" is supported by the
record. The findings of the district court with respect to the matter are
not clearly erroneous.
5
indictment without prejudice. An order to that effect was entered June
10, 1996, nunc pro tunc to March 17, 1996, which gave effect to the
court's finding of "no evidence of willful prosecutorial misconduct in
this case." Defendants moved to reconsider, but that motion was
denied.
In the meantime, the grand jury reindicted defendants on April 3,
1996, and the government sought and received a superseding indict-
ment on July 9, 1996. Motions to dismiss both of these indictments
were also filed and, subsequently, denied by the district court.
The Supreme Court set the standard for dismissal of indictments in
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), which
held that a defendant is entitled to dismissal of an indictment only
where actual prejudice is established. In circumstances such as those
presently before us that prejudice must amount either to proof that the
grand jury's decision to indict was substantially influenced, or that
there is "grave doubt" that the decision to indict was substantially
influenced, by testimony which was inappropriately before it. Bank of
Nova Scotia, 487 U.S. at 256.
The district court determined that aside from Agent McNair's testi-
mony, "the testimony of Garry Feurtado and Kevin Barrett, alone, if
believed, establishes probable cause to support the charges contained
in the indictment." Additionally, the court found that certain portions
of Agent McNair's testimony, not those contested here, provided
independent corroboration for that evidence. As noted, the district
court, after examination of the grand jury testimony and a hearing at
which oral testimony was taken, found that there was no presentation
of the questionable testimony before the grand jury, knowing it was
questionable, and there was no evidence of willful prosecutorial mis-
conduct in this case. All of the district court's findings mentioned in
this paragraph are not clearly erroneous.
The court then concluded that while it did not find the defendants
had established that improper testimony substantially influenced the
grand jury's decision to indict, it did find that it had some doubt that
the grand jury's decision to indict was free from the influence of that
testimony. In view of that, the court dismissed the indictment without
6
prejudice. With that the defendants had all the relief to which they
might have been entitled.3
We are of opinion the district court took the correct course. In view
of the finding that the presentation of the objectionable portions of
McNair's testimony were inadvertent and that other portions of the
grand jury's testimony free from taint supported the indictment, deter-
rence would have been the only basis remaining for dismissal. In
Bank of Nova Scotia, the court stated the rule in such cases:
. . . deterrence is an inappropriate basis for reversal where
means more narrowly tailored to deter objectionable pro-
secutorial conduct are available. [internal quotations
removed]
487 U.S. at 255.
In this case the district court correctly chose a more narrowly tai-
lored remedy and dismissed the indictment without prejudice. The
new indictment issued on April 3, 1996 was handed down by a grand
jury which considered only a transcript of witnesses' testimony before
the original grand jury, which transcript did not include McNair's tes-
timony.
Thus, the indictment on which the defendants were tried was
entirely free of taint caused by the introduction of McNair's objec-
tionable testimony before the original grand jury, and there could not
have been any prejudice to the defendants on that account. Again pur-
suant to Bank of Nova Scotia, we decline to invoke the supervisory
power of an appellate court to circumvent a harmless error inquiry.
487 U.S. at 254. We are of opinion that there was no error in the pro-
cedure adopted by the district court in this case. In the unlikely event
any error be found, it was harmless.
_________________________________________________________________
3 Accord: United States v. Price, 857 F.2d 234, 236 (4th Cir. 1988);
United States v. Hayes, 775 F.2d 1279, 1283 (4th Cir. 1985).
7
II.
Additionally, defendants argue, based on United States v.
Singleton, 144 F.3d 1343 (10th Cir. 1988), that their indictments
should have been dismissed with prejudice in light of the fact that
Gary Feurtado and Barrett received something "of value . . . because
of the testimony" they gave before the grand jury, in violation of 18
U.S.C. § 201(c)(2), when the government entered into Barrett's plea
agreement and moved for sentence reductions in both those wit-
nesses' cases. Defendants contend that the government itself commit-
ted a violation and that such prosecutorial misconduct warrants
dismissal of the indictment with prejudice. The en banc court in the
Tenth Circuit rejected the Singleton panel's interpretation of the stat-
ute which would have precluded the type of plea bargaining which is
institutionalized within our criminal justice system. United States v.
Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc). We reject this
argument as well.
III.
Lance Feurtado and Gerald Booker argue that violations of the
Speedy Trial Act, 18 U.S.C. § 3161, et seq., require their release and
discharge from criminal liability on the indictment. The argument
goes that § 3164(b) of the statute requires that a criminal trial com-
mence not later than 90 days following the beginning of continuous
detention for the crime charged. In this case, Lance Feurtado was
arrested September 14, 1995 and Booker was arrested September 28,
1995. Their guilty pleas were agreed to on January 14, 1997, some 16
months later, thus, they contend they should be discharged. Not taken
account of, however, or only obliquely, is the fact that the original
indictment was dismissed without prejudice and they were reindicted
by a new grand jury as earlier discussed in this opinion. Added to this
was a superseding indictment after the reindictment. Also, there were
numerous delays and continuances, most of which were agreed upon,
some at the instance of the defendants. There were many motions
filed and disposed of, and we note the docket sheets indicate there
were initially 12 defendants indicted, scattered from coast to coast
and from New York to South Carolina. Most notably there is even
now no claim of prejudice under § 3164(c) for not letting Lance
Feurtado and Booker to bail. Even assuming the periods of delay held
8
by the district court to be excludable under the Speedy Trial Act were
erroneously arrived at, especially absent prejudice, we have held in
United States v. Howard, 590 F.2d 564, 569 (4th Cir.), cert. denied,
440 U.S. 976 (1979), that "in any event, the sanction for non-
compliance . . . [with § 3164] is release, not dismissal of the indict-
ment." The argument of these defendants that Strunk v. United States,
412 U.S. 434 (1973), requires release for any violation of the Speedy
Trial Act is not well taken. Strunk was a decision for an acknowl-
edged Speedy Trial violation under the Sixth Amendment, not a statu-
tory violation of the Speedy Trial Act, which was not enacted until
1974. We decline to impose the penalty of dismissal on the United
States for such merely technical violations of the Speedy Trial Act,
assuming, not deciding, that they exist, especially when that statute
itself does not provide for dismissal of the indictment under
§ 3164(c), rather for release from custody.
The defendants, Lance Feurtado and Booker, acknowledge that all
of the time between their arrests and their pleas of guilty was exclud-
able under § 3161(h)(1) except for certain defined periods they claim
as nonexcludable time, which we will consider separately.
A.
Lance Feurtado claims a total of 98 nonexcludable days as follows:
14 days between September 14, 1995, the date of his arrest, and Sep-
tember 27, 1995, his initial appearance in the District Court of South
Carolina4; 40 days between October 6, 1995, the date of his detention
hearing, and November 16, 1995, the date of a motion filed by
another defendant, Todd Feurtado. (In his brief, Lance Feurtado
acknowledges "there were various overlapping discovery motions
pending from October 5, 1995, until the execution of the first consent
order of continuance in Feurtado I on December 7, 1995"), Brief at.
56; and 44 days from March 27, 1996, the date of dismissal of the
first indictment until May 10, 1996, the date of Lance Feurtado's
motion for continuance. Only four of these are nonexcludable days,
however, as we demonstrate.
_________________________________________________________________
4 Why this period is not 13 days is not explained.
9
With respect to the claim of 14 nonexcludable days from Septem-
ber 14, 1995 until September 27, 1995, the statute involved,
§ 3161(h)(1)(H), provides that time consumed in excess of 10 days
for transportation of a defendant from another district is presumed to
be unreasonable. The district court held that 4 days were nonexclud-
able and that 10 days were excludable. This is in compliance with the
statute and is as favorable a ruling for Lance Feurtado as might be
hoped for here. With respect to the period between October 6, 1995
and November 16, 1995, the defendant acknowledges that there were
various overlapping discovery motions pending during all of that
period. The fact that some of the motions were for discovery and were
filed by other defendants does not mean that the delay is nonexclud-
able time and we have so held in United States v. Jarrell, 147 F.3d
315, 316 (4th Cir. 1998) (other defendants), United States v. Sarno,
24 F.3d 618, 622 (4th Cir. 1994) (other defendants), United States v.
Velasquez, 802 F.2d 104, 105 (4th Cir. 1986) (all time between the
filing of a motion and the conclusion of the hearing on the motion),
and United States v. Tinsley, 800 F.2d 448, 449-450 (4th Cir. 1986)
(discovery and inspection and other motions).
For the period of 44 days between March 27, 1996 and May 10,
1996, between the dismissal of the first indictment and Lance Feurta-
do's motion for a continuance, as the report of the magistrate judge
found without refutation, there were motions pending under the first
indictment that carried over to the superseding indictment of April 3,
1996. In United States v. Riley, 991 F.2d 120 (4th Cir.), cert. denied,
510 U.S. 949 (1993), we held that a suppression motion carried over
to a retrial following a mistrial, and we think that case governs the sit-
uation here. Thus, we conclude that of the time claimed as nonexclud-
able by Lance Feurtado there are four days nonexcludable. Even if we
construe his brief as a request to dismiss the indictment under
§ 3162(a)(2), and it is doubtful that we should, the record does not
show but four days of nonexcludable time for dismissal of the indict-
ment under § 3162(a)(2) rather than the 70 days required under
§ 3161(c)(1).
We thus conclude as to Lance Feurtado there has been no violation
of the Speedy Trial Act of sufficient consequence to discharge him.
10
B.
As to Booker, he claims nonexcludable time of 102 days. The first
is a period of 61 days between October 5, 1995 and December 7,
1995. He acknowledges that during this period of time there were
pending motions of codefendants. We hold that this time was not
excludable in his case for the reasons we have just expressed in Part
III A, just above, for Lance Feurtado.
The date of Booker's arrest is uncertain. He claims 37 days from
the time of his arrest to his first appearance in the district court. In his
brief, he does not state either the date of his arrest or the date of his
first appearance. The docket sheet, A. 25, shows his arrest was Octo-
ber 23, 1995. The magistrate judge's report has it as September 28,
1995. To give Booker the benefit of the doubt, we will use the Sep-
tember 28, 1995 date of arrest and use the magistrate judge's report
of November 3, 1995 for the date of his first appearance, which would
give him nonexcludable time there of 36 days, provided the time is
nonexcludable.5 Even if this 36 or 37 day period was nonexcludable
time, which we doubt, and which we do not have to decide, it is far
below the 70 day nonexcludable time required by § 3161(c)(1) and
§ 3162(a)(2). So the 70 day period of nonexcludable time has not run
and he is not entitled to be discharged.6
_________________________________________________________________
5 The parties and the magistrate judge treat this period as 37 days.
6 The time in excess of ten days under § 3161(h)(1)(H), 26 or 27 days,
would seem to have run in a time computation under § 3164. Since
Booker is not entitled to relief under that section in any event, that is not
a question we have to decide, and, even if we had to decide it, the time
is less than the 90 day period required in § 3164.
We emphasize also United States v. Palomba, 31 F.3d 1456 (9th Cir.
1994), under like facts as here, held that under § 3161(c) the 70 day
period starts to run only when the defendant is brought before a judicial
officer in the district in which the matter is pending. Thus the 44 days
claimed as nonexcludable is in fact and law excludable from the 70 day
period, and alternately we so hold.
11
IV.
All defendants further assert that the district court violated Fed. R.
Crim. P. 11(e)(3) and (4), by adding the minimum five-year period of
supervised release required by 21 U.S.C. § 841(b)(1)(A) to the sen-
tence agreed upon in their respective plea agreements. If the court
accepts a plea agreement, Fed. R. Crim. P. 11(e)(3) and (4) require
the court to inform the defendant that it will embody in the sentence
the disposition provided for in the plea agreement, or if it rejects the
agreement, the court must give the defendant the opportunity to with-
draw the plea. The government concedes that the defendants were not
advised by the court that they faced a mandatory five-year term of
supervised release in addition to the sentence of imprisonment stipu-
lated in the plea agreement and that the additional term of supervised
release results in a sentence that exceeds that which the record indi-
cates the defendants understood they could receive as a result of their
guilty pleas. The government further concedes that, under United
States v. Good, 25 F.3d 218 (4th Cir. 1994), and United States v.
Thorn, 153 F.3d 130 (4th Cir. 1998), the failure to inform the defen-
dants of this additional mandatory term is plain error and the error is
not harmless as it affects the substantial rights of the defendants.7
In accepting the plea agreements, the district court did inform each
defendant that in the event the government backed out of the plea
agreement or in the event that the court did not accept the plea agree-
ment, the defendant would have the right to withdraw his plea. In
light of this, as well as the requirements of Fed. R. Crim. P. 11(e)(3)
and (4) not to mention the overtone of constitutional implications, we
remand this issue to the district court as to all defendants. On remand
the district court may, in its discretion, see Moore v. United States,
592 F.2d 753, 756 (4th Cir. 1979), accept the respective plea agree-
_________________________________________________________________
7 We note that the government did not concede this issue as to defen-
dants Willie Glover and Gerald Booker in its opening brief because
Glover's and Booker's motions to join this issue (February 8, 1999) and
this court's grant of those motions on February 26, 1999 occurred after
the government had submitted its brief. However, the record supports
Glover's and Booker's assertion that they are entitled to the same relief
and the government did not dispute the issue as to Glover or Booker at
oral argument.
12
ment of an individual defendant and resentence the defendant so that
the sentence of imprisonment plus the statutory five year period of
supervised release does not exceed the actual term of imprisonment
stated in the plea agreement. In the alternative, the district court may
reject the plea agreement and allow the defendant to withdraw his
guilty plea and plead again.
V.
Willie Glover challenged the presentence report and now chal-
lenges the district court's attributing to him ten kilograms of cocaine
for sentencing purposes.
We review the district court's findings as to quantity of drugs attri-
buted to Glover for clear error. United States v. Cook, 76 F.3d 596,
604 (4th Cir. 1996). The 10 kilograms of cocaine at issue was attri-
buted to Glover as 12 kilograms in his presentence report. A hearing
was held and the government called Agent McNair who testified that
after Garry Feurtado was arrested in February 1995, he began to
cooperate with the government. McNair testified that Garry Feurtado
had both stated to him and testified before the Grand Jury that on Sep-
tember 3, 1994 he (Garry Feurtado) gave Willie Glover approxi-
mately 10 kilograms of cocaine in New Bronx, New York and that
Glover delivered the cocaine to Tony Feurtado in Columbia, South
Carolina by car and that he (Garry Feurtado) then flew to South Caro-
lina on September 5 where he met with Glover and Tony Feurtado.
Glover attempted to rebut this testimony at the hearing with a tran-
script of a telephone recording of his conversation from a wire tap of
his New York number on September 5, 1994 at around 10:14 a.m.
which he claims proves he was not in South Carolina on that date. At
that hearing, Special Agent McNair testified that it was Glover's
voice on this recording but that it did not prove that Glover was actu-
ally at the location of the New York number because of the capabili-
ties of three-way calling and call-forwarding. Glover also testified at
the sentencing hearing that he "never touched any drugs, moved any
drug from A to B." Glover testified that on September 3, codefendant
Tony Feurtado called him and asked him to take Mark Coleman out
to Garry Feurtado's house. He said that he did not go to Garry Feurta-
do's house because he knew drugs would be involved, and that he
13
was not going to "travel with no drugs". He testified that instead he
picked up Mark Coleman and took him directly to the airport and
dropped him off there.
The government then introduced transcripts of other phone conver-
sations, including a conversation on September 3, 1994 in which
Tony Feurtado said to Glover "[e]verything is ready for you. It ain't
no biggie." When asked about that conversation, Glover testified that
he understood that he was "to take Mark Coleman to meet Garry
Feurtado, to bring him along with me to South Carolina. . . . I guess
it was about the drugs but I didn't make the trip." In a subsequent
telephone conversation identified as call number 3896, a person iden-
tified as Shiquana asks Glover where he is, to which Glover responds
"I'm in South Carolina", to which Shiquana responds "No, you ain't
quite there yet."
The district court found that Garry Feurtado's testimony before the
Grand Jury was corroborated by recordings of telephone conversa-
tions between Glover and others and that the preponderance of the
evidence supported that Glover did participate in the alleged transac-
tion concerning the contested ten kilograms of cocaine. It found
Glover responsible for 10 kilograms of cocaine. This finding is not
clearly erroneous.
Whether or not Glover personally handled the drugs, the weight of
the evidence supports that a drug transaction took place on September
3, 1994 involving 10 kilograms of cocaine and coconspirators Glover,
Coleman, Tony Feurtado, and Garry Feurtado. The evidence supports
that this transaction was facilitated by Glover or at the least was fore-
seeable by him, and the drugs involved in this transaction are properly
attributed to Glover for purposes of sentencing. See United States v.
Williams, 986 F.2d 86, 90-91 (4th Cir. 1993). We affirm the district
court on this issue.8
_________________________________________________________________
8 Although a dispute over a quantity of drugs may seem to be unusual
in view of the guilty plea, it may be required. See United States v.
Gilliam, 987 F.2d 1009 (4th Cir. 1991).
14
VI.
We thus affirm the convictions of all of the defendants. We affirm
the sentence of Willie Glover so far as it takes issue with the attribu-
tion to him of 10 kilograms of cocaine for sentencing purposes. On
remand the district court, at its option, will either resentence each of
the defendants so that the total sentences imposed, including the five
year period of supervised release, will not exceed the sentence agreed
upon in their respective plea agreements, or, alternately, the district
court, in its discretion, may allow each defendant to withdraw his
guilty plea and plead again.
AFFIRMED IN PART AND REMANDED
WITH INSTRUCTIONS
15