United States v. Ferguson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4460
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER FERGUSON, a/k/a Mark Thompson,
a/k/a Mark,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (CR-03-345)
Argued: March 16, 2007 Decided: August 8, 2007
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Gregory wrote
the majority opinion, in which Judge Michael joined. Judge
Niemeyer wrote a dissenting opinion.
ARGUED: John Kenneth Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia, for Appellant. Daniel Joseph Grooms, III,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Christopher Ferguson was convicted by a jury of one count of
conspiracy to possess with intent to distribute at least 1,000
kilograms of marijuana and one count of conspiracy to commit money
laundering. Ferguson was acquitted of a third count of possessing
a firearm in furtherance of drug trafficking. The district court
then imposed a sentence of 235 months for the marijuana conspiracy
count and a concurrent sentence of 235 months for the money
laundering conspiracy count. Arguing that the district court
failed to instruct the jury properly as to their finding of the
threshold quantity of drugs for which he was responsible, Ferguson
now appeals his sentence.
I.
In July 2003, a federal grand jury indicted Ferguson with
conspiracy to possess with intent to distribute at least 1,000
kilograms of marijuana, in violation of 21 U.S.C. § 846; conspiracy
to commit money laundering, in violation of 19 U.S.C. § 1956; and
possession of a firearm in furtherance of drug trafficking, in
violation of 21 U.S.C. § 924(c).1 From October 14 through October
17, 2003, Ferguson was tried before a jury on these counts. During
deliberations, the jury passed a note to the district court, making
1
A fourth count provided that if Ferguson were convicted on
the drug conspiracy count, he would be forced to forfeit any
property resulting from the conspiracy.
2
the following inquiry with respect to the marijuana conspiracy
count:
What is the relevance of the breakdown of the amount of
marijuana involved in Count 1 on the verdict sheet? And
does it relate specifically to the defendant or the
entire conspiracy? Or is it the jury’s interpretation?
J.A. 220. In response, the district court stated:
It is not the jury’s interpretation. It involves all
those who were involved in the conspiracy. You add them
all up, if they were members of the conspiracy, not only
the defendant. He is charged in a conspiracy, not that
he did it all by himself.
Id. After further deliberations, the jury convicted Ferguson of
the marijuana conspiracy and money laundering conspiracy counts and
acquitted him of the firearm count.
The presentence investigation report (“PSR”) recommended that,
with respect to the marijuana conspiracy count, Ferguson be held
responsible for 3,000 to 10,000 kilograms of marijuana under
U.S.S.G. § 2D1.1(a)(3) and (c)(3), thereby yielding a base offense
level of 34. The PSR further added a 2-level enhancement for
possessing a firearm under U.S.S.G. § 2D1.1(b)(2), a 2-level
enhancement for victim-related conduct under U.S.S.G. § 3A1.3, and
a 3-level enhancement for his aggravated role in the offense under
U.S.S.G. § 3B1.1. Thus, the total offense level for the marijuana
conspiracy count was 41.
In calculating the base offense level for the money laundering
count, the PSR applied the base offense level (34) for the
marijuana conspiracy count, the underlying offense from which the
3
laundered funds were derived, in accordance with U.S.S.G. § 2S1.1.
The PSR also added a 2-level enhancement because Ferguson had been
convicted under 18 U.S.C. § 1956, a 2-level enhancement for victim-
related conduct under U.S.S.G. § 3A1.3, and a 3-level enhancement
for his aggravated role in the offense under U.S.S.G. § 3B1.1.
Thus, the total offense level for the money laundering count was
also 41.
Because the marijuana conspiracy embodied conduct treated as
a specific offense characteristic of the money laundering count,
the PSR grouped the offenses together under U.S.S.G. § 3D1.2(c).
The PSR applied the highest offense level of the two (although for
both, the total offense level was 41) and a criminal history
category of I, thus calculating a Guidelines range of 324 to 405
months.
At sentencing, Ferguson’s counsel asserted that the district
court’s response, which charged the entire weight of the marijuana
conspiracy to Ferguson, to the jury’s query during deliberations
was erroneous. The district court rejected this objection,
remarking that it “has nothing to do with the sentence.” J.A. 241.
The district court thus adopted the PSR’s finding of 3,000 to
10,000 kilograms of marijuana attributable to Ferguson. Although
the district court declined to impose the 3-level enhancement for
Ferguson’s aggravated role in either the marijuana conspiracy or
the money laundering, the district court applied the 2-level
4
enhancement for victim-related conduct. Finally, with respect to
counsel’s objection to the firearm enhancement, the district court
responded:
Under the first count, a level 38 is 235 to 293 months.
Under-- without the gun charge, it’s a level 36, which is
188 to 235. I’m going to give him the 235, which is the
low end of 38 and high end of 36. I think it is
appropriate, under these circumstances that that level
stands.
J.A. 258. After being pressed by counsel for clarification, the
district court stated “I’m giving him 38.” J.A. 259. However, in
the written judgment, the district court entered the total offense
level as “36 or 38.” J.A. 301. Moreover, the district court
further wrote that “[f]ollowing argument of counsel as to the
appropriate offense level, the Court makes no determination and
sentences the defendant to 235 months, within both of these
ranges.” J.A. 301.
With respect to the money laundering count, the district court
adopted the PSR’s calculation and imposed a sentence of 235 months,
to run concurrently with Ferguson’s sentence of 235 months for the
marijuana conspiracy count. Ferguson now appeals his sentence.
II.
Section 841(b) of Title 21, the provision under which Ferguson
was sentenced, sets forth a gradated penalty scheme based on the
quantity of marijuana attributable to the defendant. See 21 U.S.C.
§ 841(b) (setting forth statutory maximums of life imprisonment for
5
1000 kilograms, 40 years for 100 kilograms, 20 years for 50
kilograms, and 5 years for any amount less than 50 kilograms). On
appeal, Ferguson contends that his 235-month sentence for the
marijuana conspiracy count cannot stand because the district court
did not give a supplemental instruction in accordance with
Pinkerton v. United States, 328 U.S. 640 (1946), which holds a
defendant responsible only for conduct that is within the scope of
his criminal agreement and reasonably foreseeable. Ferguson
asserts that because the jury never determined the individualized
quantity of marijuana attributable to Ferguson for the penalty
purposes of § 841(b) and simply considered the entire weight of the
conspiracy, his sentence relied on improper judicial fact-finding
in contravention of the Sixth Amendment.
In a drug conspiracy case, a jury must apply the Pinkerton
analysis both to the substantive conspiracy charge and to the
determination of the threshold quantity of drugs for statutory
penalty purposes. The government concedes that under United States
v. Collins, 415 F.3d 304 (4th Cir. 2005), the district court erred
by failing to instruct the jury to apply Pinkerton principles in
determining the quantity of marijuana attributable to Ferguson for
the penalty purposes of § 841(b). This case is indistinguishable
from Collins, in which the defendant was convicted of conspiracy to
distribute cocaine and the jury asked a nearly identical question
about how they were to make the threshold quantity determination
6
required on the verdict form. Id. at 311-15. In Collins, we
pointed out that Apprendi v. New Jersey, 530 U.S. 466. 490 (1990),
requires that “[o]ther 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.” The threshold quantity of drugs for statutory
penalty purposes is a fact that a jury must find beyond a
reasonable doubt. The jury must apply the Pinkerton principles to
their calculation of threshold quantity to determine if the amount
proven to be distributed by the conspiracy was within the scope of
the defendant’s agreement and reasonably foreseeable to the
defendant. See Collins, 415 F.3d at 314.
Because they were not instructed under Pinkerton, Ferguson’s
jury consequently did not properly determine the statutory
threshold quantity of marijuana attributable to Ferguson. In the
absence of a jury determination or an admission of the quantity of
marijuana attributable to Ferguson, Ferguson’s conduct must fall
within the default 5-year statutory maximum set forth in § 841(b).
Ferguson’s 235-month sentence, which was based solely on
judicially-found quantities of marijuana attributable to Ferguson,
therefore violates the Sixth Amendment. Id. at 314; see Apprendi
v. New Jersey, 530 U.S. at 490.2
2
As in Collins, the error did not affect Ferguson’s conviction
under §§ 841 and 846--neither of which require a threshold drug
quantity for criminal liability. Collins, 415 F.3d at 314.
7
III.
We also conclude that the error affecting the conspiracy count
undermines the court’s sentencing for the money laundering count.
We have held that proper sentencing under United States v. Booker,
543 U.S. 220 (2005), requires a correct application of the
sentencing guidelines in addition to consideration of the factors
enumerated in 18 U.S.C. § 3553(a). United States v. Green, 436
F.3d 449 (4th Cir. 2006). An improper calculation of the
guidelines offense level renders the sentence unreasonable, and
such a sentence must be vacated. Id. at 457.
The district court made no independent determination of drug
quantity when it sentenced Ferguson on the money laundering count.
The court, acting pursuant to the guidelines, imputed the base
offense level for the conspiracy count to the money laundering
count. The court rested that calculation of offense level on the
jury’s threshold quantity finding. In sentencing Ferguson for the
money laundering count, the court therefore improperly relied on
the quantity the jury determined without regard to Pinkerton
principles. Without an independent determination of quantity for
the second count, the court could and did not properly calculate,
as required by Booker and Green, the guidelines range for the money
8
laundering count.3 Ferguson’s sentence for money laundering must
be vacated as unreasonable.
IV.
Following Collins, we will withhold judgment on the marijuana
conspiracy count for thirty days and permit the government to
choose between remand for resentencing under the 5-year maximum set
forth in § 841(b) or remand for a new trial. Collins, 415 F.3d at
315.4 Similarly, because the Guidelines imputed the base offense
level determined for the marijuana conspiracy count to the money
laundering count and the judge never made an independent
calculation of offense level for the money laundering count, the
3
Drug quantity determines base offense level for drug
trafficking offenses, including money laundering if the underlying
offense involves drug trafficking, as it does in Ferguson’s case..
See U.S.S.G. §§ 1B1.3, 2D1.1, 2S1.1. An independent determination
of drug quantity by the court would have allowed the court to
calculate the offense level properly and arrive at a sentence
lesser than or comparable to the one imposed.
4
Because the sentence must be vacated under Collins, we need
not address Ferguson’s constitutional arguments concerning the
firearm enhancement imposed for the marijuana conspiracy count. We
note in passing, however, that the district court did not clearly
indicate whether it adopted the enhancement, which would have
increased the total offense level from 36 to 38. Indeed, the
district court stated in its written judgment that “[f]ollowing
argument of counsel as to the appropriate offense level, the Court
makes no determination and sentences the defendant to 235 months,
within both of these ranges.” J.A. 301. The district court’s
failure to specify the total offense level was error under United
States v. Green, 436 F.3d 449, 456 (4th Cir. 2006), which requires
district courts to calculate the proper Guidelines range and
consider that range in conjunction with the other factors set forth
in 18 U.S.C. § 3553.
9
235-month sentence for the money laundering count also cannot
stand. We therefore withhold judgment on the money laundering
count and will remand for proceedings consistent with the option
chosen by the government for the marijuana conspiracy count.
VACATED AND REMANDED
10
NIEMEYER, Circuit Judge, dissenting:
A jury convicted Christopher Ferguson of (1) conspiracy to
possess with intent to distribute 1,000 kilograms or more of
marijuana, in violation of 21 U.S.C. § 846, and (2) conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h).
Following United States v. Booker, 543 U.S. 220 (2005), the
district court sentenced Ferguson to 235 months’ imprisonment on
each count, to run concurrently.
On appeal, Ferguson contends (1) that during the trial, the
district court misinstructed the jury on the drug conspiracy count
(an error he did not raise until six months after his conviction);
and (2) that his sentence was improperly enhanced on the basis of
acquitted conduct (as alleged in Count III, charging him with
possession of a firearm in relation to a drug trafficking crime).
Because Ferguson forfeited any error in the jury instructions
by failing to make a timely objection, see Fed. R. Crim. P. 30(d)
(requiring an objection to be made before the jury retires), we
review the alleged error under the plain-error standard of Rule
52(b). Regardless of the standard for review, however, the
district court did not err in instructing the jury on conspiracy
law, and there was no predicate to require an instruction under
United States v. Collins, 415 F.3d 304 (4th Cir. 2005), as Ferguson
contends and the majority presumes. Moreover, even if a Collins
instruction were appropriate, the alleged error was harmless, as
11
the evidence of Ferguson’s participation in a conspiracy involving
the distribution of 1,000 kilograms or more of marijuana was
overwhelming. Indeed, the evidence demonstrated that Ferguson was
extensively involved in a conspiracy that distributed up to 9,000
kilograms of marijuana.
As for Ferguson’s claim that the district court improperly
relied on acquitted conduct (possession of a gun in relation to a
drug trafficking crime) to enhance Ferguson’s sentence two levels,
under U.S.S.G. § 2D1.1(b) (possession of a “dangerous weapon”),
that claim must be rejected. See United States v. Duncan, 400 F.3d
1297, 1304-05 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005);
United States v. Williams, 399 F.3d 450, 454 (2d Cir. 2005).
The majority relies exclusively on the district court’s
failure to comport fully with Collins to order a new trial or a
much reduced sentence. This approach is fundamentally flawed in
several respects.
First, the majority opinion fails to recognize that any
Collins error was forfeited, not having been timely raised below
when it could have been remedied. Ferguson raised the issue some
six months after the jury returned its verdict and was dismissed.
Second, with respect to applying Collins, there was no predicate in
this case for submitting a reasonable-foreseeability instruction to
the jury because Ferguson was not charged with any of the
substantive offenses as objects of the conspiracy. The
12
instructions given were entirely consistent with the law of
conspiracy and indeed with Collins. Third, any error was harmless
in light of the evidence in this case, which overwhelmingly
supported Ferguson’s full knowledge of the scope of the conspiracy.
The majority addresses none of these issues.
As egregious as the majority’s application of Collins is, its
sua sponte vacatur of the sentence on the money laundering account
is plainly and demonstrably wrong, because any error with respect
to the drug conspiracy count in no way affected the sentencing for
the money laundering count. The majority fails to recognize that
the drug quantity found by the jury on the drug conspiracy count
was not, and could not be, the basis for the drug quantity found by
the court on the money laundering count. The conviction and
sentence on the money laundering were independent of the alleged
Collins error and therefore must be affirmed under any legal or
logical analysis.
I would therefore affirm the judgment of the district court.
I
Ferguson was charged in a four-count indictment along with six
named coconspirators. Count I alleged conspiracy to possess with
intent to distribute and to distribute 1,000 kilograms or more of
marijuana; Count II alleged conspiracy to commit money laundering;
Count III alleged possession of a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c); and Count IV
13
sought forfeiture of drug related assets if Ferguson were to be
convicted under Count I, the drug conspiracy count. The jury
returned guilty verdicts on Counts I and II, expressly finding with
respect to Count I that the conspiracy involved 1,000 kilograms or
more of marijuana. The jury acquitted Ferguson under Count III,
which charged him with illegal gun possession.
During the course of the trial, Ferguson made no objections to
the jury instructions relating to the drug conspiracy count. In
response to the district court’s inquiry about whether the “defense
ha[d] any objections to the charge,” Ferguson replied, “No, Your
Honor.” He made no objection to the instructions at the time they
were given and, in fact, agreed, after they were given, that the
court had properly read the instructions, which had previously been
agreed to. Finally, Ferguson made no objection to the instructions
before the jury retired to deliberate, the latest permissible time
for objection to jury instructions. See Fed. R. Crim. P. 30(d)
(requiring that an objection to jury instruction be made before
“the jury retires to deliberate”). Nor did Ferguson object when
the judge responded to a note from the jury asking how to assess
drug quantity.
Over six months later, after the presentence report had been
prepared, Ferguson was sentenced for his convictions on Counts I
and II. While Ferguson made several written objections to the
presentence report, he did not object to the drug quantity found in
14
the report, i.e., that he was responsible for 3,000 to 10,000
kilograms of marijuana. For the first time, however, Ferguson did
contend that the district court should have instructed the jury in
accordance with United States v. Pinkerton, 328 U.S. 640, 647-48
(1946), that Ferguson was responsible for only the drug quantity
attributable to him. Ferguson’s counsel stated:
The Court: You’re objecting to the jury’s findings?
Counsel for Ferguson:
No, no. What I’m saying to the Court is,
the jury, during the course of
proceedings on day two, they came into
the Court and asked the Court whether or
not they could find the weight
attributable directly to this defendant,
or whether or not it was the weight of
the conspiracy. The Court charged the
weight of the conspiracy.
* * *
The Court: You can go to the Fourth Circuit if I’m
wrong. It has nothing to do with the
sentence.
The district court, of course, could not correct the alleged
error, and the court treated the objection as only an objection to
its sentencing of Ferguson as a member of a conspiracy involving
the distribution of 1,000 kilograms or more of marijuana.
Ferguson also objected to the district court’s enhancement for
Ferguson’s possession of a firearm in relation to a drug
trafficking crime. He contended that the jury had considered
evidence of the conduct and rejected it and that now, under Booker,
15
the district court was not free to find that fact for enhancement
of his sentence under U.S.S.G. § 2D1.1(b)(1). In addition to the
fact that the district court was entitled to base a sentence on
acquitted conduct, the district court indicated that the two-level
enhancement for the gun charge would not affect the 235-month
sentence that it had selected, because that sentence was included
in the sentencing range for both the offense level without the
enhancement and the offense level that included the enhancement.
The court ultimately sentenced Ferguson to 235 months’
imprisonment on each count, to run concurrently, and this appeal
followed.
II
Ferguson’s principal point on appeal is that the district
court violated his Sixth Amendment right to trial by jury when it
failed to instruct the jury properly to find the amount of drugs
attributable to Ferguson himself instead of to the conspiracy. He
argues that the instruction would have allowed the jury to find a
smaller drug quantity attributable to him and therefore would have
allowed the jury to deny liability for the greater statutory
offense under the scheme of 21 U.S.C. § 841(b).
The district court became aware of Ferguson’s argument for the
first time when he mentioned it over six months after the jury
returned its verdict, during the sentencing hearing. Yet, under
Rule 30(d), the objection could only have been timely if made
16
before the jury retired to deliberate. Ferguson’s attempt to
object to the jury instruction and the court’s answer to the jury
at sentencing thus was plainly untimely. Not only was it untimely
under the Rule, Ferguson’s timing denied the court any opportunity
to correct the error.
As a result of Ferguson’s untimely objection, our review can
only be for plain error, not the de novo review apparently
undertaken by the majority. See United States v. Olano, 507 U.S.
725, 731 (1993) (quoting with approval Yakus v. United States, 321
U.S. 414, 444 (1944) (“No procedural principle is more familiar to
this Court than that a . . . right may be forfeited in criminal as
well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it”))
(emphasis added).
The rule requiring timely objection is not simply a legal trap
or empty formalism. The rule exists so that the trial judge can
deal with problems in the trial when they arise. It protects
district courts from heavy-handed review and reversal when the
court could not be expected to have corrected the error. And most
importantly, the rule exists to prevent the defendant from sitting
on his rights at trial and awaiting the outcome of the proceeding
-- obtaining an unreviewable acquittal if he wins and obtaining a
mulligan if he loses. The majority’s willingness to allow a
defendant to preserve error by objecting six months after the
17
objection was required undermines every purpose of the rule. As
the Supreme Court has said,
We think that the [majority’s approach] may encourage
“sandbagging” on the part of defense lawyers, who may
take their chances on a verdict of not guilty in a []
trial court with the intent to raise their [] claims in
[an appeals] court if their initial gamble does not pay
off. . . .
The failure of the [] courts . . . to require compliance
with a contemporaneous-objection rule tends to detract
from the perception of the trial of a criminal case . .
. as a decisive and portentous event. A defendant has
been accused of a serious crime, and this is the time and
place set for him to be tried by a jury of his peers and
found either guilty or not guilty by that jury. To the
greatest extent possible all issues which bear on this
charge should be determined in this proceeding: the
accused is in the courtroom, the jury is in the box, the
judge is on the bench, and the witnesses, having been
subpoenaed and duly sworn, await their turn to testify.
Society’s resources have been concentrated at that time
and place in order to decide, within the limits of human
fallibility, the question of guilt or innocence of one of
its citizens. Any procedural rule which encourages the
result that those proceedings be as free of error as
possible is thoroughly desirable, and the
contemporaneous-objection rule surely falls within this
classification.
Wainwright v. Sykes, 433 U.S. 72, 89-90 (1977).
The majority’s approach also tramples Rule 52(b) and the
governing principles of Olano, which require Ferguson to
demonstrate error that was plain and that affected his substantial
rights. See Olano, 507 U.S. 725. Our court, considering several
cases identical on their facts, has found that a Collins error was
not the sort of grave error meriting reversal on plain error
review. See United States v. Harris, 215 Fed. Appx. 262, 279 (4th
18
Cir. 2007) (per curiam); United States v. Mitre, 209 Fed. Appx.
249, 252 (4th Cir. 2006) (per curiam); United States v. Andaya-
Penalosa, 198 Fed. Appx. 314, 316 (4th Cir. 2006) (per curiam). We
should follow the typical practice of our court and hold that any
error needed to be preserved for our review, and any error not
preserved is forfeited, absent an extraordinary showing that
Ferguson cannot make and has not attempted to make. See Olano, 507
U.S. at 733-35.
III
In the context of all of the instructions given to the jury
and of the facts of the case, the challenged instruction accurately
states the law of conspiracy. Therefore, Ferguson was properly
convicted for the drug trafficking conspiracy.
A “conspiracy is a distinct offense from the completed object
of the conspiracy.” Garrett v. United States, 471 U.S. 773, 778
(1985). It is an inchoate crime, and one can be held liable for
conspiracy whether or not the object offense is ever completed.
See Ianelli v. United States, 420 U.S. 770, 777 & n.10 (1975). The
gravamen of conspiracy is agreement to commit a crime or series of
crimes. Thus, “[t]o prove [a drug conspiracy], the Government must
establish that (1) an agreement to possess [illicit drugs] with
intent to distribute existed between two or more persons; (2) the
defendant knew of the conspiracy; and (3) the defendant knowingly
and voluntarily became a part of this conspiracy.” United States
19
v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). Upon proof
of these elements, each conspirator becomes liable for conspiracy
to the extent of the entire scope of the conspiracy -- i.e. all
acts done in support of the criminal purpose. See United States v.
Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). This broad liability,
resting on agreement, is distinct from liability under Pinkerton
for the substantive crimes committed by one’s coconspirators. See
328 U.S. at 647. Conspiracy liability rests simply on the acts of
the conspiracy as a whole. Burgos, 94 F.3d at 857.
But a conspirator may also be held liable for the underlying
substantive crimes committed by members of the conspiracy,
regardless of whether he was aware that those crimes were being
committed. Members of the conspiracy act as each other’s agents,
and any act performed by one conspirator within the scope of the
agreement is the act of each other conspirator. Id.; United States
v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993) (“As we have recognized,
[Pinkerton] controls questions of an individual defendant’s
criminal liability for acts done by others in furtherance of
conspiratorial activity”); United States v. Miley, 513 F.2d 1191,
1208 (2d Cir. 1975) (“the Pinkerton charge . . . permits a jury to
find a defendant guilty on a substantive count without specific
evidence that he committed the act charged”) (emphasis added).
Thus, the Pinkerton holding serves to impute liability for
substantive offenses to coconspirators for acts committed in the
20
course of the conspiracy. In doing so, however, Pinkerton imposes
additional proof requirements. To hold a conspirator liable for
the substantive offenses of coconspirators, Pinkerton requires (1)
that the offense be committed in furtherance of the conspiracy; (2)
that the offense “fall within the scope of the unlawful project”;
and (3) that the offense be reasonably foreseeable as “a necessary
or natural consequence of the unlawful agreement.” Pinkerton, 328
U.S. at 647-48. But Pinkerton does nothing to constrict the
traditional criteria for proving the crime of conspiracy, which
consists of an agreement to commit one or more crimes. Properly
understood, then, Pinkerton principles expand criminal liability,
rather than contract it. As even the Collins decision stated,
The principles outlined in Pinkerton, however, have no
applicability to a conviction under [21 U.S.C.] § 846.
Pinkerton principles are relevant when a conspirator is
charged with a substantive offense arising from the
actions of a coconspirator, not when a conspirator is
charged with conspiracy. Because [the indictment]
charges Collins with conspiracy [], and not a substantive
offense, the district court’s answer to the jury’s
question, as well as its original conspiracy instruction
. . . is unassailable as a matter of law.
Collins, 415 F.3d at 313 (emphasis added). The Pinkerton
requirements for proving substantive acts through the conspiracy
are thus necessary because Pinkerton relates to substantive
liability, but have no application when the defendant is charged
only with conspiracy, as here.
Ferguson was charged only with conspiracy, and his criminal
liability for conspiracy to distribute 1,000 kilograms or more of
21
marijuana was perfected as soon as he agreed with his
coconspirators to distribute drugs. In accordance with the common
law of conspiracy, it is the scope of that agreement that defines
his liability under 21 U.S.C. § 846. Because Pinkerton concerns
itself a conspirator’s responsibility for the substantive crimes
committed by other conspirators, it does not apply here. Thus, the
district court properly instructed the jury as to conspiracy
liability, both in its initial instruction and in its response to
the jury’s note, and it need not have considered any instruction
under Pinkerton or under the later-to-be decided Collins.
Following Burgos, our leading case on conspiracy, the district
court instructed the jury as follows:
A conspiracy is an agreement between two or more persons
to join together to accomplish some unlawful purpose. It
is a kind of partnership in crime in which each member
becomes the agent of each other member.
For you to find the defendant guilty, you must be
convinced that the Government has proved each of the
following beyond a reasonable doubt: 1, two or more
persons reached an agreement or came to an understanding
to commit a crime; namely, either to possess with intent
to distribute [] marijuana or to distribute marijuana.
2, that the defendant voluntarily and intentionally
joined the agreement or understanding either at the time
it was first reached or at some later time while it was
still in effect.
And 3, at the time defendant joined in the agreement or
understanding, he knew the purpose of the agreement or
understanding.
* * *
22
One may become a member of a conspiracy without knowing
all of the alleged details of the unlawful scheme or the
identities of all the alleged conspirators.
* * *
If a defendant understands the unlawful nature of the
plan or scheme, and knowingly and intentionally joined in
that plan or scheme on one occasion, that is sufficient
to convict him for the conspiracy even though the
defendant had not participated before and even though the
defendant played only a minor part.
* * *
Similarly, the Government need not prove that all of the
details alleged in the indictment were actually agreed
upon or carried out.
In addition to that formal charge, the judge answered a
question from the jury: “What is the relevance of the breakdown of
the amount of marijuana involved in Count 1 on the verdict sheet?
And does it relate specifically to the defendant or the entire
conspiracy? Or is it the jury’s interpretation?” The judge
replied: “It is not the jury’s interpretation. It involves all
those who were involved in the conspiracy. You add them all up, if
they were members of the conspiracy, not only the defendant. He is
charged in a conspiracy, not that he did it all by himself.”
(Emphasis added).
The original charge and the additional answer given by the
district court are completely consistent with the law of
conspiracy, the only crime with which Ferguson was charged. These
instructions correctly told the jury that a conspirator is liable
for the acts of the entire conspiracy (1) if an agreement existed;
23
(2) if Ferguson joined the agreement; and (3) if Ferguson knew the
purpose of the agreement when he joined. Here, because Ferguson
was not charged with the underlying substantive offenses of the
conspiracy, there was no need to instruct the jury on Pinkerton’s
additional requirements.
Ferguson’s trial defense was to claim that he was personally
responsible only for five pounds of marijuana that he sold to the
government and knew nothing of the conspiracy. This theory,
however, failed to advance the argument raised on appeal that
Ferguson was a member of the conspiracy but could not foresee the
amount of drugs involved. As important, Ferguson never put forth
a defense that he did not agree to the conspiracy with which he was
charged. Moreover, Ferguson did not challenge or even question the
drug quantity attributable to the conspiracy. Under standard
conspiracy law, Ferguson was liable for all of the acts of
coconspirators in furtherance of the conspiracy, and in the absence
of substantive charges of drug distribution, the Pinkerton
limitations were irrelevant.
The district court acted properly in not confusing the jury
with the inapplicable Pinkerton limitations or the type of
instruction later imposed by our decision in Collins, which had not
yet been decided.
24
IV
Once conspiracy liability is determined, the defendant is
“subject to the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or
conspiracy.” 21 U.S.C. § 846. Since violation of 21 U.S.C. § 841was the object of the offense, Ferguson is subject to the penalties
outlined in § 841(b).
Section 841 sets up a gradated penalty scheme, in which a
defendant is subject to different statutory maximums and minimums,
depending on the quantity of drugs manufactured, distributed, or
dispensed. See 21 U.S.C. § 841(b). Prior to Apprendi v. New
Jersey, 530 U.S. 466 (2000), those threshold drug quantities were
sentencing facts for the judge to decide. See United States v.
Irvin, 2 F.3d 72, 75-77 (4th Cir. 1993). Our pre-Apprendi
jurisprudence held that in pari materia with the Sentencing
Guidelines, a conspiracy defendant should be held accountable only
for those drug transactions he could have been charged with
substantively under § 841. Id. at 77-78; cf. U.S.S.G. § 1B1.3.
Accord United States v. Ruiz, 43 F.3d 985, 989-90 (5th Cir. 1995);
United States v. Chitty, 15 F.3d 159, 162-63 (11th Cir. 1994);
United States v. Young, 997 F.2d 1204, 1209-10 (7th Cir. 1993);
United States v. Becerra, 992 F.2d 960, 966-67 (9th Cir. 1993);
United States v. Martinez, 987 F.2d 920, 923-26 (2d Cir. 1993);
United States v. Jones, 965 F.2d 1507, 1517 (8th Cir. 1992).
25
Since Apprendi, however, in conspiracy cases under 21 U.S.C.
§ 846, we have held that the jury, not the judge, must make the
threshold drug quantity determination. See Collins, 415 F.3d at
314. Apprendi held that “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.” 530 U.S. at 490.
In doing so, the Supreme Court equated sentencing factors that
increased the possible penalty for a crime with elements of the
offense which must be proved beyond a reasonable doubt. Id. at
478-81. This holding did not simply shift functions from judge to
jury; it also converted some facts previously regarded as
sentencing facts into elements of the offense. See United States
v. Promise, 255 F.3d 150, 157 (4th Cir. 2001) (en banc) (“the
specific threshold quantity must be treated as an element of an
aggravated drug trafficking offense”) (emphasis added).
Thus, because the threshold quantity determination under §
841(b) is now an element of an aggravated drug offense, the
threshold quantity determination for a conspiracy must be
determined by the jury in accordance with traditional conspiracy
principles, which hold conspirators liable for agreeing to all the
acts of the entire conspiracy.
Sentencing for conspiracy takes place in a completely separate
hearing, and at that time, the sentencing judge evaluates the
individual conspirator’s liability for drug quantity, as required
26
by the Sentencing Guidelines. See U.S.S.G. § 1B1.3. And after
Booker, 543 U.S. at 220, the judge has discretion to individualize
the sentence in light of his finding of drug quantity.
Collins, which was decided after the trial and sentencing in
this case, conflates the liability phase of the criminal proceeding
with the sentencing phase, to much confusion. It ignores that
Irvin was a response to the unique historical circumstances where
both the threshold drug quantity and the final drug quantity were
sentencing questions for the judge. Since under Apprendi and
Promise, the threshold drug quantity has become an element of the
offense, not a part of the sentencing proceeding, there is no
longer any reason to apply Pinkerton principles where even Collins
recognizes they do not belong -- where the defendant is charged
with conspiracy. The question under the statute is simple – when
a defendant agrees to join a drug conspiracy, what is the size of
the conspiracy he agreed to join? And that determination fixes the
statutory penalty range under 21 U.S.C. § 841(b).
This must be the test, because conspiracy is an inchoate
crime, meaning that drug quantity must often be determined even
when no perfected acts of drug distribution have occurred. As in
some cases, we know here the ultimate size of the conspiracy,
because it resulted in the actual commission of numerous acts of
drug dealing. But in many cases, the conspiracy remains inchoate,
with agreement but without any completed drug sales punishable
27
under 21 U.S.C. § 841. In such a case, indeed in every conspiracy
case, the scope of the agreement is the only benchmark for
determining drug quantity.
Yet Collins would seem to require an analysis based on
individual acts of drug distribution that have not yet occurred and
may never occur. Because drug quantity must often be calculated on
a forward-looking basis in conspiracy cases, the jury must evaluate
that quantity based the scope of the conspiratorial agreement and
could not undertake the inquiry required by Collins.
Moreover, Collins’ confusion systematically undermines the
deterrent effects of the federal drug laws. Conspiracies pose
unique dangers because of their ability to channel the efforts of
multiple people into a single illegal project, permitting greater
coordination, secrecy, and scale. The harm posed by an individual
joining a conspiracy thus depends on the size of the conspiracy --
i.e. the level of social danger that conspiracy crime poses. Under
Collins, the punishment relates only to the extent of the harm
foreseeable to the individual, not the extent of the harm the
conspiracy actually poses. This, of course, underdeters and
underpunishes conspiratorial conduct. In addition, and more
perniciously, the Collins approach would appear to allow
conspiracies to decrease their exposure by compartmentalizing their
operations, segmenting responsibilities, and otherwise keeping
members from knowing the full extent of the conspiracy.
28
Other circuits have rejected the argument that Pinkerton
should apply to a threshold drug quantity determination under 21
U.S.C. § 841(b) in conspiracy-only cases, let alone that an
instruction that omits all of Pinkerton’s subtleties is erroneous.
I agree with the observation that
in a drug conspiracy case, the jury should determine the
existence vel non of the conspiracy as well as any facts
about the conspiracy that will increase the possible
penalty for the crime of conviction beyond the default
statutory maximum; and the judge should determine, at
sentencing, the particulars regarding the involvement of
each participant in the conspiracy. . . . This means that
once the jury has determined that the conspiracy involved
a type and quantity of drugs sufficient to justify a
sentence above the default statutory maximum and has
found a particular defendant guilty of participation in
the conspiracy, the judge lawfully may determine the drug
quantity attributable to that defendant and sentence him
accordingly (so long as the sentence falls within the
statutory maximum made applicable by the jury's
conspiracy-wide drug quantity determination).
Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002).
Accord United States v. Stiger, 413 F.3d 1185, 1192-93 (10th Cir.
2005); United States v. Phillips, 349 F.3d 138, 141-43 (3d Cir.
2003), vacated and remanded on other grounds sub nom Barbour v.
United States, 543 U.S. 1102 (2005); United States v. Knight, 342
F.3d 697, 710-11 (7th Cir. 2003); United States v. Turner, 319 F.3d
716, 722-23 (5th Cir. 2003). But see United States v. Banuelos,
322 F.3d 700 (9th Cir. 2003) (requiring threshold drug quantity
under in conspiracy cases to be individualized by the jury using
Pinkerton). Our court under Collins is an outlier, and for good
reason.
29
Because Collins was wrongly decided or, at best, is confusing
and because it is out of step with so many of our sister circuits,
it should be overruled or clarified at the earliest opportunity by
this court sitting en banc. But, in any event, Pinkerton is not,
and Collins should not be, applicable here, because Ferguson was
not charged with substantive offenses that were the object of the
conspiracy.
V
It is thus readily demonstrable that the district court
committed no error in charging the jury with traditional conspiracy
principles and in answering the jury’s question as it did. But
even if it were error to have the jury find the drug quantity
attributable to the conspiracy, as distinct from finding drug
quantities attributable to individual members of the conspiracy,
and if the error were preserved, it was nonetheless harmless.
The majority confuses the question of Sixth Amendment error
under Apprendi with the usual judicial remedies for erroneous jury
instructions. This is not a case where the jury failed to make a
finding as to drug quantity. The jury did make a finding as to
drug quantity: “Did the conspiracy involved in Count One involve
1,000 kilograms or more of marijuana? A: Yes.” Any error, then,
is not Sixth Amendment error (the error that results from having a
fact determined by a judge rather than a jury) but is simply an
error of instruction. Ferguson can therefore make no credible
30
claim that he lost his right to a jury trial, which would entitle
him to at least a resentencing. See United States v. Hughes, 396
F.3d 374 (4th Cir. 2005). As a result, the majority, even on the
erroneous understanding that the error was preserved, should have
conducted a harmless error analysis, taking into account the entire
instruction and facts of the case. See, e.g., United States v.
Knight, 342 F.3d at 712.
The facts demonstrate that Ferguson was a mid-level player in
a huge drug conspiracy responsible for distributing about $25
million worth of marijuana in Maryland, Virginia, and Washington,
D.C. There can be no doubt that each and every sale of drugs was
both within the scope of the conspiracy and foreseeable to
Ferguson.
Co-conspirators are liable for the reasonably foreseeable
acts of another co-conspirator taken in the course of and
in furtherance of the unlawful agreement, regardless of
whether they had actual knowledge of those acts, so long
as they played more than a minor role in the conspiracy
or had actual knowledge of at least some of the
circumstances and events culminating in the reasonably
foreseeable event.
United States v. Baker, 432 F.3d 1189, 1235 (11th Cir. 2005).
Ferguson lived with his cousin, the brother of the principal
conspirator, in a home owned by Ferguson’s mother. Substantial
amounts of cash ($49,000) were found in his bedroom, though
Ferguson had never filed a tax return. Two firearms were found
under his mattress when the conspiracy involved many firearms. And
31
Ferguson was pulled over in Los Angeles, traveling in a van that
contained $277,000 in cash, bundled with rubber bands.
Two couriers in the conspiracy testified that Ferguson
personally took delivery of several cars containing over 300 pounds
of marijuana when the couriers brought it to the Washington, D.C.,
area. He was part of a group that instructed the couriers where to
go and what to do. He purchased airplane tickets for several of
his coconspirators in connection with the conspiracy.
A coconspirator testified that he saw Ferguson in his house
with large barrels of marijuana on numerous occasions, and that
Ferguson sold him large quantities of marijuana. He saw Ferguson
at the scene when the conspiracy unloaded tractor trailers and U-
Haul trucks filled with marijuana. He and the defendant often
pooled their money to purchase marijuana.
Ferguson regularly drove for the conspiracy. On at least one
occasion, Ferguson drove while his coconspirators threatened to
kill two couriers who had lost drug money. He drove couriers to
the airport, who then flew to Phoenix and procured marijuana, over
350 pounds of which was found in their vehicles on a trip. Those
couriers had, on over 15 occasions, driven currency and drugs
between California and Arizona, and Washington, D.C.
Also found near Ferguson’s bedroom were tally sheets
constituting the conspiracy’s records of drugs sold and money owed.
32
These records reflected the enormous extent of the conspiracy’s
operations.
The evidence cumulatively shows that Ferguson was fully aware
of the operations of the conspiracy, and was involved in drug sales
and money laundering. When he dropped drug couriers off at the
airport, he was certainly aware of the general quantities of drugs
that were being transported. And when he received the marijuana,
in 300-pound quantities, he was aware of a large drug conspiracy.
Pinkerton does not require that Ferguson have oversight over or
even specific knowledge of every operation of the conspiracy. It
only requires that the conspiracy’s dealings be reasonably
foreseeable to him. Without question, Ferguson was aware that he
was part of a huge, sprawling, transcontinental narcotics scheme,
and no reasonable jury could have found otherwise.
In light of the extensive evidence tying Ferguson to all of
the drugs involved in the conspiracy, Ferguson certainly foresaw at
least the quantity of drugs found by the jury, and any
instructional error was harmless.
VI
Quite distinct from the alleged Pinkerton/Collins error,
Ferguson was properly and legally sentenced for conspiracy to
launder money, in violation of 18 U.S.C. § 1956(h), and there is no
basis, legal or otherwise, for vacating the sentence on that Count.
33
First, Ferguson has made no allegation that his money
laundering conviction was flawed. Indeed, in his opening brief, he
did not even challenge any part of his conviction or sentence, and
properly so. Only after the government argued that the conviction
and sentence on Count II must remain standing because they were
independent of any Pinkerton instruction error did Ferguson respond
with a generalized claim that the whole process was flawed.
Ferguson was sentenced on Count II pursuant to U.S.S.G. §
2S1.1(a), which states that the offense level is “(1) The offense
level for the underlying offense from which the laundered funds
were derived, if (A) the defendant committed the underlying offense
(or would be accountable for the underlying offense under
subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct)); and (B) the
offense level for that offense can be determined . . . .” The
offense level for money laundering thus depends on the offense
level of the underlying offense that produced the money to be
laundered -- in this case, drug trafficking. Notably, however,
nothing in § 2S1.1 depends on a drug quantity found by the jury,
nor does the Guideline even require that the defendant be convicted
of the underlying (drug) offense or, for that matter, charged with
the underlying offense. Any error during the liability phase with
respect to the drug conspiracy count has absolutely no bearing on
the proper Sentencing Guideline calculation under § 2S1.1. Without
regard to what the jury found, the sentencing judge is obligated to
34
find drug quantity as part of the sentencing process and calculate
an offense level under U.S.S.G. § 2D1.1. In following that course,
the sentencing judge is directed to U.S.S.G. § 1B1.3 (relevant
conduct), which incorporates into sentencing the Pinkerton
principles adopted for conspiracy liability for substantive
offenses. See U.S.S.G. § 1B1.3 (“the base offense level . . .
shall be determined on the basis of the following: . . . in the
case of a jointly undertaken criminal activity . . . , all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity”); cf. Pinkerton, 328
U.S. at 647-48 (“A different case would arise if the substantive
offense committed by one of the conspirators was not in fact done
in furtherance of the conspiracy, did not fall within the scope of
the unlawful project, or . . . could not be reasonably foreseen”).
Ferguson advances no reason to believe that the district court
misapplied the Sentencing Guidelines with regard to the money-
laundering count. The offense level for that count was based on a
judge-found drug quantity, and the district court adopted the drug
quantity recommended in the presentence report -- 9,000 kilograms
of marijuana. Nothing in the record suggests that either the
presentence report or the district court failed properly to
calculate the drug quantity in accordance with U.S.S.G. §§ 2D1.1
and 1B1.3.
35
The majority opinion says that “because the Guidelines imputed
the base offense level determined for the marijuana conspiracy
count to the money laundering count and the judge never made an
independent calculation of offense level for the money laundering
count, the 235-month sentence for the money laundering count
necessarily rested on improper judicial fact-finding in violation
of the Sixth Amendment.” The majority seems to be saying that some
fact was found by the judge that should have been found by the
jury, and that by not allowing the jury to find it, the district
court violated the Sixth Amendment. But the majority does not, and
cannot, indicate what fact was improperly so found. The jury, by
convicting Ferguson, found all of the facts required by 18 U.S.C.
§ 1956(h) (money laundering), and the district judge determined for
sentencing, in agreement with the presentence report, that Ferguson
was responsible for between 3,000 and 10,000 kilograms of
marijuana. This drug quantity finding could not logically have
rested on the jury’s quantity finding, although it is consistent
with it. The jury found simply that the conspiracy was responsible
for 1,000 kilograms or more of marijuana. The judge found that
Ferguson was responsible for between 3,000 and 10,000 kilograms of
marijuana to calculate an offense level. Because the district
judge’s drug quantity finding was greater than 1,000 kilograms, he
necessarily made an independent finding of quantity and could not
have relied on the jury verdict, as the majority suggests.
36
Moreover, Ferguson had no Sixth Amendment entitlement to a
jury finding of drug quantity at the sentencing phase. See United
States v. Moreland, 437 F.3d 424, 432-34 (4th Cir. 2006). The
district judge properly determined the precise drug quantity under
the Sentencing Guidelines; properly used that quantity to identify
the offense level under § 2D1.1; and properly imputed that offense
level to the Guidelines calculation under § 2S1.1. None of these
findings needed to be made by a jury. Indeed, even under the
majority opinion, the district judge may impose an identical
sentence on remand, so long as he recites an “independent” finding
of drug quantity.
Under the Sentencing Guidelines scheme, we review a district
court’s drug quantity findings for clear error. See United States
v. Carter, 300 F.3d 415, 425 (4th Cir. 2002). Yet, nothing in the
majority opinion or the record suggests that the district court did
anything but accurately calculate the drug quantity using § 2D1.1
(the drug offense guideline) and § 1B1.3 (relevant conduct).
Indeed, the majority’s reasoning with regard to the money
laundering count is not at all legal in nature. Rather, it states
simply, in a single sentence, that there was error in the drug
conspiracy aspect of the trial and suggests that that error
therefore “spread to” or “infected” the sentence imposed on a
wholly different count. The law does not comprehend this
jurisprudence by metaphor to answer the simple question whether
37
Ferguson has a claim of right which he has been denied. As
Ferguson can provide no legal argument for why this should be so,
his conviction and sentence on the money laundering count must
stand.
Because I would affirm the judgment of the district court, I
respectfully dissent.
38