United States v. Short

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROMAINE ABDUL SHORT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:07-cr-00123-RBS-3)
Argued: May 14, 2010 Decided: July 2, 2010
Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Arthur L. ALARCÓN, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Senior Judge Hamilton and Senior Judge Alarcón
joined.
ARGUED: James Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY,
Virginia Beach, Virginia, for Appellant. Howard Jacob Zlotnick,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Dana J. Boente, United States Attorney,
Alexandria, Virginia, Richard Cooke, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia; Caitlin Parker, Third Year Law Student, WILLIAM & MARY
SCHOOL OF LAW, Williamsburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
This appeal arises from a conviction and sentence for
conspiracy to possess with intent to distribute marijuana and
cocaine base, in violation of 21 U.S.C. § 846; use and carry of
a firearm in relation to drug trafficking, in violation of 18
U.S.C. § 924(c); conspiracy to obstruct, delay and affect
commerce by robbery, in violation of 18 U.S.C. § 1951(a);
possession with intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2; robbery
affecting commerce, in violation of 18 U.S.C. § 1951(a); and
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). The appellant challenges the district
court’s denial of his motion to dismiss the indictment based on
immunity and his motion to suppress evidence seized during a
house search. He also challenges the court’s decision to impose
a mandatory minimum of life imprisonment pursuant to 21 U.S.C.
§ 841(b)(1)(A). For the reasons that follow, we affirm.
I.
A.
Starting in the 1990s, Romaine Abdul Short, together with
others, belonged to a group known as “The Creek Boys.” This
group, among other things, manufactured powder into cocaine
3
base, sold crack cocaine, and robbed other drug dealers of
controlled substances. In December 2004, Detective Eric Kempf
of the Federal Violent Crimes Task Force learned of Short’s
activities, and asked Short if he would be willing to provide
him with some information. Short, who was then in custody on
pending state drug violations, agreed, and thereafter, Detective
Kempf and Short met several times from December 17, 2004 through
March 2, 2005. During those meetings, Short described his
involvement in crack cocaine and marijuana dealing, and gave
Detective Kempf several names. Short also testified before a
grand jury on drug related matters involving James Frink, Ricky
Frink, and Germell Allmond. Afterwards, Detective Kempf sent a
letter to the Newport News Commonwealth Attorney’s Office,
detailing Short’s cooperation. As a result of this letter, the
state charges against Short were reduced.
Short’s criminal activity continued after 2005. On April
15, 2006, he and Sam Wallace, another Creek Boy, arranged to
meet a drug dealer named Joseph Ocasio. Wallace had told
Ocasio’s contact, Sammy Zaharopoulos, that they wanted to buy
marijuana, but they actually planned to rob Ocasio. In
preparation, Short sought assistance from Demario Boyd, who
Short knew always carried a gun, would “straight take the weed
from [Ocasio],” and would only ask for a small amount of
4
marijuana in return. J.A. 573. That evening, Wallace picked up
Short and Boyd in his car and headed to the Bayberry Shopping
Center to meet Ocasio. While the marijuana purchase was taking
place, Boyd brandished his gun and shot Ocasio in the back of
the head, killing him. Wallace and Boyd quickly fled on foot,
while Short, carrying Ocasio’s marijuana sample, drove away in
Wallace’s car.
Responding to the murder, Detective Robert Vasquez located
and apprehended Wallace. Upon questioning him, Detective
Vasquez learned that Short had been involved in the Ocasio
murder. The next day, Detective Vasquez and his partner
Detective Richard Espinoza visited Short’s residence with ten to
twelve other police officers. 1 Detective Espinoza knocked on the
door, announced himself, and then asked everyone inside to come
out. Short came out with his wife Shenika Short (“Ms. Short”)
and two children. He was placed in handcuffs and then taken to
the police station for questioning. At the same time, Detective
Steven Smithley obtained consent to search the house from Ms.
Short. In the house, police officers found, among other things,
1
Detective Espinoza explained that they took such a large
contingent because Boyd, potentially armed and dangerous,
remained at large and could have been with Short, and because
they had “not recover[ed] the murder weapon from the scene.”
J.A. 56.
5
marijuana, a digital scale, and a sealed plastic bag containing
$1,000.
B.
Based on the Ocasio murder, the subsequent search, and
evidence that from 1996 through 2007, Short purchased and sold
firearms, marijuana, crack cocaine, and powder cocaine; robbed
several drug dealers; and was armed with a weapon while drug
trafficking, a federal grand jury in the Eastern District of
Virginia indicted Short on September 12, 2007, for conspiracy to
possess with intent to distribute marijuana and cocaine base in
violation of 21 U.S.C. § 846; conspiracy to obstruct, delay, and
affect commerce by robbery in violation of 18 U.S.C. § 1951(a);
possession with intent to distribute marijuana in violation of
21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2; robbery
affecting commerce in violation of 18 U.S.C. § 1951(a); and
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A). The government
later filed a superseding indictment that added charges for
possession with intent to distribute cocaine base in violation
of 21 U.S.C. § 841(a)(1), (b)(1)A)(iii) and 18 U.S.C. § 2, and
possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g)(1).
6
In January 2008, Short moved to suppress the evidence
seized during the warrantless search of his home on the ground
that police conducted the search without valid consent. During
a hearing on the motion, Detective Smithley testified that,
following Short’s departure, Detective Smithley approached
Ms. Short, “explained to her what was going on, and then
ultimately just asked for a consent search for the residence.”
J.A. 113. He further testified that, after Ms. Short agreed to
cooperate, he obtained a consent form, “explained [it] to her,”
and watched her sign it. J.A. 113. According to Detective
Smithley, police officers began the search only after obtaining
consent. Ms. Short also testified and provided a different
account. Although she admitted giving consent, Ms. Short said
that police officers entered her home before she had consented,
and that she finally gave consent only because an officer said
that she and her children would “have to stand outside until
they got a search warrant.” J.A. 180. Ms. Short explained, “I
didn’t want me and my kids to stand outside. It was kind of
cold, so I didn’t think I had nothing to hide in my house, so I
signed it.” J.A. 182. Ultimately, the district court found her
testimony not credible and, concluding that “Ms. Short did give
consent,” denied Short’s motion to suppress the evidence seized
from his house. J.A. 274.
7
Several months later, Short moved to dismiss the
superseding indictment on the ground that he had received
immunity by cooperating with law enforcement regarding his March
2005 grand jury testimony. During a hearing on the motion,
Detective Kempf explained that, although he gave Short a limited
promise in exchange for his cooperation, there was an important
caveat: “[S]ince Mr. Short was in custody, . . . I advised him
that any cooperation he gave would be related to the
Commonwealth Attorney since he had pending charges. By law no
promises could be made by me. I don’t have the authority to
make any promises.” J.A. 312.
Short also testified and provided a different account. He
said that Detective Kempf told him that “the only way that [he]
w[ould] be safe from ever getting prosecuted for any [of these
crimes] was for [him] to tell [Detective Kempf] everything from
the first time [he] ever picked up a blunt weed.” J.A. 343.
Accordingly, Short testified that he had provided Detective
Kempf with his entire criminal background, believing that he
would therefore be “protect[ed].” J.A. 350.
During the hearing, Short also submitted his grand jury
testimony as proof of immunity. During the grand jury
proceeding, Short admitted to “hustling” and then asked the
prosecutor whether he would get in trouble for this admission.
8
J.A. 1477. The prosecutor responded, “No, you are fine.” Id.
After confirming that Short was telling the truth and did not
shoot anyone, the prosecutor said, “You’re fine. Go ahead.”
Id. According to Short, the prosecutor was “verifying”
Detective Kempf’s promise of immunity in exchange for Short’s
grand jury testimony. J.A. 351-52.
Ultimately, the district court denied Short’s motion to
dismiss the superseding indictment. It found that, at most,
“[Short] had an informal use immunity agreement related to his
grand jury testimony” and also that “none of the charges in the
superseding indictment are related to [Short’s] brief grand jury
testimony at issue here.” J.A. 1202-03.
The case then proceeded to trial and Short was found guilty
on all but two counts. 2 After calculating Short’s applicable
guideline range under the federal sentencing guidelines, the
district court imposed the mandatory minimum penalty of life
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) based upon two
prior felony drug convictions. This appeal followed.
2
Short was not found guilty of possessing a firearm in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A), and knowingly and intentionally possessing with
(Continued)
9
II.
On appeal, Short challenges the district court’s orders
denying his motion to dismiss the superseding indictment and his
motion to suppress. He also challenges the court’s application
of 21 U.S.C. § 841(b)(1)(A). We consider each matter in turn.
A.
We consider first the district court’s denial of Short’s
motion to dismiss the indictment based on a grant of immunity.
We review the district court’s factual determinations concerning
the existence and scope of an alleged immunity agreement for
clear error, see United States v. Martin, 25 F.3d 211, 217 (4th
Cir. 1994) (applying standard of review to plea agreement), and
its application of the law de novo, see United States v. Smith,
976 F.2d 861, 863 (4th Cir. 1992).
In this context, immunity may be either “transactional
immunity” or “use and derivative use immunity.” Kastigar v.
United States, 406 U.S. 441, 443 (1972). Transactional immunity
“accords full immunity from prosecution for the offense to which
the . . . testimony relates.” Id. at 453. Use and derivative
use immunity prohibits the use of testimony or any evidence
intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)A)(iii) and 18 U.S.C. § 2.
10
derived from that testimony against the witness in a criminal
prosecution. See id. at 452-53. Under this latter type of
immunity, the witness still may be prosecuted for crimes about
which he testifies if the government proves that it has other
evidence that is derived from a source wholly independent of the
testimony. United States v. Jarvis, 7 F.3d 404, 414 (4th Cir.
1993) (finding that “the government [is] free to use any other
evidence to prosecute”).
While an immunity agreement is typically “made when the
parties verbally express their mutual assent to its essential
terms, it may also be implied when the parties’ conduct
manifests their agreement.” United States v. McHan, 101 F.3d
1027, 1034 (4th Cir. 1996). Under the doctrine of “equitable
immunity,” immunity exists where: “(1) an agreement was made;
(2) the defendant has performed on his side; and (3) the
subsequent prosecution is directly related to offenses in which
the defendant, pursuant to the agreement, either assisted with
the investigation or testified for the government.” Id.
Ultimately, however, the defendant bears the burden of proving
the existence of an equitable immunity agreement. Id.
Applying this standard, the district court determined that
Short failed to meet his burden of proving the existence of
transactional immunity. At most, the district court noted,
11
“based on a review of [Short’s] grand jury testimony . . .
[Short] had an informal use immunity agreement related to his
grand jury testimony.” J.A. 1202. However, because Short
“testified at the grand jury regarding matters and individuals
which form no part of the current charges against [Short] in the
superseding indictment,” J.A. 1202, the district court found
that “even if [Short] did have [use] immunity as to his grand
jury testimony, there has clearly been no violation by the
United States,” J.A. 1203. Short now challenges these findings.
As proof that he received immunity, Short cites the statements
made by the prosecutor before the grand jury as well as
Detective Kempf’s statement that if Short told the truth and had
not shot anyone, he would “be alright and not be prosecuted.”
Appellant’s Br. at 19.
Nothing in the record persuades us that the district court
clearly erred in finding that the government did not agree to
give Short immunity based on his interactions with Detective
Kempf. Short testified that Detective Kempf told him that “the
only way that [he would] be safe from ever getting prosecuted
for any of [his previous crimes] was for [him] to tell
[Detective Kempf] everything from the first time [he] ever
picked up a blunt weed.” J.A. 343. By contrast, Detective
Kempf explained that prior to their interview, he “advised him
12
that any cooperation . . . would be related to the Commonwealth
Attorney since he had pending charges,” but that “[b]y law no
promises could be made by [him]” because he did not have the
authority. J.A. 312. Ultimately, the district court found
Detective Kempf credible and Short unworthy of belief. We are
given no reason to challenge that credibility finding,
particularly since during his testimony, Short admitted to lying
to a probation officer about his drug use “to help [him]self.”
J.A. 359. See United States v. Thompson, 554 F.3d 450, 452 (4th
Cir. 2009) (“[W]hen a district court’s factual finding is based
upon assessments of witness credibility, such finding is
deserving of the highest degree of appellate deference.”
(internal quotations omitted)). The record indicates, at most,
that Detective Kempf promised Short that he would write a letter
on his behalf to the Commonwealth Attorney. Detective Kempf
kept his promise, and as a result of this letter, Short was able
to plead guilty to a reduced charge on a pending state matter.
The only other evidence offered in support of Short’s
motion was the grand jury testimony, but Short’s colloquy with
the prosecutor does not evidence “a meeting of the minds that
the government would refrain from further prosecuting him in
exchange for his cooperation,” and thus, Short cannot establish
transactional immunity. McHan, 101 F.3d at 1034. All this
13
colloquy shows is Short asking the prosecutor whether he would
get in trouble for “hustling,” and the prosecutor reassuring him
that he would be fine. J.A. 1477. Even assuming that this
colloquy can be construed as a grant of use immunity, the
district court found, as a matter of fact, that the charges
contained in the superseding indictment were based on
independent sources of information, and not based on any matters
disclosed by Short during his grand jury testimony. Short
offers no evidence to rebut this finding, 3 and thus, we conclude
3
At oral argument, Short argued that if we find that he was
entitled to use immunity, we must find that the district court
erred in failing to conduct a Kastigar hearing. United States
v. Harris, 973 F.2d 333, 336 (4th Cir. 1992) (noting that in a
Kastigar hearing, the government must “demonstrate that all its
evidence came from sources independent of the compelled
testimony”). We disagree. “Whether the oral use-immunity
agreement at issue in this case is subject to the full Kastigar
protections is doubtful because [Short] voluntarily cooperated
with the government.” McHan, 101 F.3d at 1036; see also United
States v. Roberson, 872 F.2d 597, 611-12 (5th Cir.) (holding
that where cooperation was not compelled but was voluntarily
provided pursuant to a state immunity agreement, that agreement
cannot bind federal prosecutors), cert. denied, 493 U.S. 861
(1989); United States v. Eliason, 3 F.3d 1149, 1152-53 (7th Cir.
1993) (same); United States v. Camp, 72 F.3d 759, 761 (9th Cir.
1995) (same), cert. denied, 517 U.S. 1162 (1996). Further, to
the extent that a full Kastigar hearing is ever appropriate in
non-compulsion cases, it was not required in this case because,
at most, the government provided Short with use immunity, not
derivative use immunity, and there is no evidence in the record
showing that the government directly used the immunized
testimony. See United States v. Smith, 452 F.3d 323, 337 (4th
Cir. 2006) (finding no Kastigar hearing is required where the
agreement conferred use immunity only, and the government did
not use the immunized testimony).
14
that the district court did not clearly err in finding that if
Short was granted use immunity, the government did not violate
that agreement. See United States v. Jones, 542 F.2d 186, 199
(4th Cir. 1976) (findings of fact related to independence of
evidence from immunized testimony will be overturned only if
clearly erroneous), cert. denied, 426 U.S. 922 (1976).
Because Short never had transactional immunity and the
government did not violate any purported agreement for use
immunity, we find no error in the district court’s denial of
Short’s motion to dismiss.
B.
We next consider the district court’s denial of the motion
to suppress. In ruling on a motion to suppress, we review the
district court’s legal conclusions de novo and its underlying
factual findings for clear error. United States v. Buckner, 473
F.3d 551, 553 (4th Cir. 2007).
Short argues that the district court erred in finding that
his wife consented to the search of his home. He maintains that
his wife’s consent was an involuntary acquiescence to a claim of
lawful authority, given only after the official conducting the
search asserted he would obtain a warrant, if necessary. Thus,
15
he contends the district court should have suppressed the
evidence obtained through the search of his home.
In determining whether consent to search was freely and
voluntarily given, we examine the totality of the circumstances
surrounding the consent. United States v. Lattimore, 87 F.3d
647, 650 (4th Cir. 1996) (en banc). In viewing the totality of
the circumstances, it is appropriate to consider “the
characteristics of the [person giving consent] (such as age,
maturity, education, intelligence, and experience) as well as
the conditions under which the consent to search was given (such
as the officer’s conduct; the number of officers present; and
the duration, location, and time of the encounter).” Id.
Whether the person giving consent knew that she possessed a
right to refuse consent also is relevant in determining the
voluntariness of consent, although the government need not
demonstrate that the person giving consent knew of her right to
refuse consent to prove that the consent was voluntary. Id.
The district court determined that Ms. Short voluntarily
consented to the search. The district court found:
Ms. Short did give consent. She said it was okay to
search. She voluntarily and knowingly signed the
consent to search form.
The witness who testified -- Detective Smithley,
I believe is his name -- was a very credible witness.
He didn’t appear at all rude or forceful or
intimidating, and I specifically asked Ms. Short if
16
the officer was courteous to her, and she said, oh,
yes, he was courteous. There was nothing that was
overpowering about this situation, and I would find as
a fact that Ms. Short did okay the search, that she
was an appropriate individual to consent to the
search, she lived there, she was his wife, and that
the search was appropriate without a warrant as a
consent search.
J.A. 274-75.
Based on our review of the totality of the surrounding
circumstances, we cannot say that the factual finding of the
district court that Ms. Short’s consent was voluntary was
clearly erroneous. On the date of the search, Ms. Short was 26
years old, the mother of two children, and held employment with
North End Cab Company. Testimony also established that she had
dealt with police officers before and been arrested on a number
of occasions. Further, Ms. Short admitted to signing the
consent form and not revoking that consent at any time during
the search. It is true that Ms. Short testified, on several
occasions, that she agreed to sign the document because
otherwise, she “and [her] kids [would have] to stand outside” in
the cold while the police obtained a warrant. 4 J.A. 182. She
also admitted, however, that she signed the consent form because
4
Strangely enough, after giving consent, Ms. Short
testified that she and her step-daughter stayed outside on the
porch while the officers searched the home. When asked why she
stayed outside when her stated reason for signing the form was
(Continued)
17
she “didn’t think at the time . . . there was anything to get in
[her] house.” J.A. 184-85. Moreover, she explained that she
found the police officer that asked for the consent “courteous.”
J.A. 191. Based on this record, the conclusion that Ms. Short’s
oral consent was given voluntarily is amply supported; indeed,
we may safely say that no other opinion is supportable.
Nevertheless, Short argues that the police officer’s
statement that he could apply for a warrant if Ms. Short denied
consent invalidated the consent. We disagree. “The fact that a
search warrant was mentioned does not necessarily constitute a
coercive factor negating consent.” United States v. Hummer, 916
F.2d 186, 190 (4th Cir. 1990) (internal quotations and citation
omitted), abrogated on other grounds by United States v.
Hairston, 96 F.3d 102, 106 (4th Cir. 1996). On the contrary,
this is but one factor to consider in determining whether
voluntary consent was given, and can be negated if the person
giving consent “is advised several times orally and in writing
of [her] right to refuse the search.” Id.; see also United
States v. Dennis, 625 F.2d 782, 793 (8th Cir. 1980) (finding
voluntary consent, although consent was given after officers
informed defendant that they would seek a warrant if consent was
so she would not be forced to stand outside, she answered, “I
don’t know. But I just did.” J.A. 193.
18
not given); United States v. Drennen, No. 96-4301, 1997 WL
543379, at *4 (4th Cir. Sept. 5, 1997) (same). Here, Ms. Short
was given a form that delineated her rights, and she was told
orally by a police officer that she didn’t need to consent. In
light of these circumstances, we find that the district court
did not clearly err in finding that Ms. Smith gave informed,
voluntary consent to search her home. This is particularly so
in light of the rule that when the lower court bases its ruling
on oral testimony heard at a suppression hearing, such as is the
case here, the ruling may not be disturbed “unless it can be
said that the view of the evidence taken by the district court
is implausible in light of the entire record.” 5 Lattimore, 87
F.3d at 651.
5
Short also argues that the evidence should have been
suppressed because the search resulted from his unlawful arrest.
See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (finding
that generally “evidence which derives . . . immediately from an
unlawful entry and an unauthorized arrest . . . is . . . the
‘fruit’ of official illegality,” and should be suppressed). We
disagree. Not all evidence “is [the] ‘fruit of the poisonous
tree’ simply because it would not have come to light but for the
illegal actions of the police.” Id. at 487-88. “Rather, the
more apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.’” Id. at 488 (quoting
Maguire, Evidence of Guilt, 221 (1959)). Here, Short has
proposed no explanation, and we see none, for how the search
resulted from the purported unlawful arrest. Thus, we find
Short’s argument without merit.
19
C.
Finally, we consider the district court’s determination
that Short was subject to a mandatory minimum sentence of life
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). “We review
de novo the district court’s interpretation of the statute and
conclusion that [Short’s] prior convictions were predicate
offenses under the statute.” United States v. Hawkins, 548 F.3d
1143, 1149 (8th Cir. 2008).
Section 841(b)(1)(A) provides that if any person commits a
federal drug offense involving 50 grams or more of cocaine base
“after two or more prior convictions for a felony drug offense
have become final, such person shall be sentenced to a mandatory
term of life imprisonment without release.” 21 U.S.C.
§ 841(b)(1)(A). Because the jury convicted Short of conspiracy
to possess with intent to distribute cocaine base in excess of
50 grams, and because Short was convicted in state court in
March 2004 and December 2005 of two felony drug offenses, the
district court found that an enhancement under § 841(b)(1)(A)
was appropriate.
Short argues that the district court erroneously relied on
these two state convictions to enhance his sentence because the
government had failed to establish that they were not part of
the same conspiracy charged in Count 1 of the superseding
20
indictment. He reasons that these two convictions cannot be
“prior felony drug offense[s]” for purposes of § 841(b)(1)(A)
because they occurred while the charged conspiracy was taking
place. We disagree.
We have squarely held that, for purposes of § 841(b)(1)(A),
“[w]hen a defendant is convicted of a drug conspiracy under 21
U.S.C. § 846, prior felony drug convictions that fall within the
conspiracy period may be used to enhance the defendant’s
sentence if the conspiracy continued after his earlier
convictions were final.” United States v. Smith, 451 F.3d 209,
225-26 (4th Cir. 2006); see also United States v. Moore, 305 F.
App’x 130, 134 (4th Cir. 2008) (finding that 2000 and 2003
convictions could be considered prior convictions for sentencing
enhancement purposes where conspiracy began in 1987 and
continued through 2005). Here, the charged conspiracy continued
through 2007, and thus, we find no error in the district court’s
use of Short’s 2004 and 2005 convictions for § 841(b)(1)(A)
enhancement purposes. 6
6
Short also argues that the court erroneously applied the
base offense level from section 2A1.1 in the U.S. Sentencing
Guidelines. Because he faced a statutory mandatory minimum
sentence of life imprisonment, however, his guideline sentence
was necessarily life imprisonment pursuant to section 5G1.1.
See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable guideline
(Continued)
21
III.
For the foregoing reasons, we
AFFIRM.
range, the statutorily required minimum sentence shall be the
guideline sentence.”). The issue is thus moot.
22