United States v. Hoey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 98-4276
ANTHONY HOEY, a/k/a Tony Hoey,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-96-53)
Submitted: July 31, 2003
Decided: August 11, 2003
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Haakon Thorsen, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Charlotte, North Carolina;
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HOEY
OPINION
PER CURIAM:
Anthony Hoey appeals from his conviction of conspiracy to manu-
facture, distribute, and possess with intent to distribute cocaine and
crack cocaine, 21 U.S.C. § 846 (2000), for which he was sentenced
to 240 months imprisonment. Finding no error, we affirm.
Hoey first claims that he was not properly served with notice of the
Government’s intention to seek a sentence enhancement pursuant to
21 U.S.C. § 851 (2000). The Government filed a bill of information
pursuant to § 851 on July 25, 1996, giving notice of its intention to
seek a sentencing enhancement due to Hoey’s prior drug conviction—
a 1990 state conviction for felony possession of cocaine and posses-
sion with intent to sell or deliver cocaine. Hoey initially pled guilty
in September 1996 but, in April 1997, was allowed to withdraw his
plea on the grounds that he had not been notified of the Government’s
intent to seek the sentencing enhancement.
Hoey admits that he received actual notice of the Government’s
intention; he claims, nevertheless, that the statute requires "service,"
regardless of whether the Defendant receives actual notice. At the
first hearing on his motion to withdraw his guilty plea, the court asked
Hoey’s attorney if "there [is] any need to serve this notice since it’s
been filed on here." Hoey’s attorney responded: "No. I think it would
be moot point as far as my argument is concerned, serving notice to
me now." The court took the matter under advisement and then, at the
conclusion of second hearing, the district court informed Hoey that he
faced a "twenty year mandatory minimum term of imprisonment . . .
since the Government has filed a notice of a prior felony drug convic-
tion; do you understand that?" Hoey responded, "Yes, sir," and was
allowed to withdraw his guilty plea.
At Hoey’s sentencing hearing, he again challenged the Govern-
ment’s alleged failure to properly serve him with § 851 notice but did
not challenge the validity or existence of the conviction upon which
the enhancement was based. The court asked, "Well, you both knew
about it before the trial started, didn’t you?" Hoey’s attorney
UNITED STATES v. HOEY 3
responded, "I think that it’s fair to say we knew about it before the
trial started."
We find that Hoey had notice of the Government’s intention and
was given a full and fair opportunity to challenge the conviction upon
which the enhancement was based. Moreover, he does not contest the
existence or validity of the prior conviction. See United States v. Ellis,
326 F.3d 593, 599 (4th Cir. 2003) (finding no plain error where dis-
trict court failed to fully comply with § 851, given that Defendant had
knowledge of Government’s intention to seek enhancement and failed
to contest validity or existence of prior convictions), petition for cert.
filed, No. 03-5410 (July 15, 2003).
Second, Hoey challenges the district court’s findings of drug quan-
tities attributable to him. The district court’s drug quantity determina-
tion is reviewed for clear error, United States v. Fletcher, 74 F.3d 49,
55 (4th Cir. 1996), although the Government has the burden of estab-
lishing the amount by a preponderance of the evidence, United States
v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). The Sentencing Guidelines
do not demand certainty and precision; they require that a court do the
best that it can with the evidence in the record, erring on the side of
caution. Id. Finally, a conspirator may be held accountable for all
quantities of contraband attributable to the conspiracy which were
reasonably foreseeable and which were taken within the scope of the
conspiratorial agreement. United States v. Gilliam, 987 F.2d 1009,
1012-13 (4th Cir. 1993); U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(B) & comment. (n.2).
The presentence report determined that Hoey was responsible for
648.59 grams of cocaine base and 750.22 grams of cocaine powder.
Tony Young, one of Hoey’s suppliers, testified that, beginning in
September 1995, he supplied Hoey with an ounce to one and one-half
ounces of cocaine every week for seven or eight months. Therefore,
according to this testimony alone, Hoey received a minimum of 798.3
grams of cocaine. Young also testified that "[i]n the summertime,"
Hoey was selling "about two ounces" of both cocaine and crack
cocaine in "half and half" amounts every three days. Based on this
testimony, approximately 850 grams of crack and 850 grams of
cocaine were attributable to Hoey. Hoey cannot show that the district
court’s calculation was clearly erroneous. See United States v. Ran-
4 UNITED STATES v. HOEY
dall, 171 F.3d 195, 210 (4th Cir. 1999) (holding that hearsay testi-
mony of a co-conspirator alone can provide sufficiently reliable
evidence of drug quantity).
Hoey’s final argument concerns the apparent loss of part of the
transcript. Hoey argues that the omission of the opening and closing
arguments is a violation of the Court Reporter Act, 28 U.S.C.
§ 753(b) (2000) and a denial of due process. The Court Reporter Act
requires a complete transcript of trial proceedings. Although compli-
ance with the Act is mandatory, there is no express remedy for its vio-
lation. This court has held that when a portion of a trial transcript is
unavailable, an appellant must show "that the missing portion of the
transcript specifically prejudices his appeal before relief will be
granted." United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985);
see United States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999)
(when a transcript is less than complete, the "defendant must show
that the transcript errors specifically prejudiced his ability to perfect
an appeal").
Hoey cannot show prejudice. Indeed, he even concedes that "coun-
sel has not determined any specific error that may have occurred, and
therefore has not sought a Rule 10(c) proceeding." Moreover, it is not
clear if these portions of the transcript are indeed missing or whether
Hoey’s counsel ever ordered them.
Accordingly, we affirm Hoey’s conviction and sentence. 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 the decisional process.
AFFIRMED