United States v. Richardson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4101

NATHANIEL A. RICHARDSON, JR., a/k/a

Nathaniel Skeeter, a/k/a Skeet,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4149

JERMAINE CLEAVON GOLDEN,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CR-96-153)

Argued: May 5, 2000

Decided: November 22, 2000

Before WIDENER and MOTZ, Circuit Judges, and

Irene M. KEELEY, United States District Judge for the

Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Widener wrote the opinion, in

which Judge Motz and Judge Keeley joined.

_________________________________________________________________

COUNSEL

ARGUED: Keith Loren Kimball, COLGAN & KIMBALL, P.L.C.,

Virginia Beach, Virginia, for Appellants. Vincent L. Gambale, Assis-

tant United States Attorney, Alexandria, Virginia, for Appellee. ON

BRIEF: Douglas Fredericks, Norfolk, Virginia, for Appellants. Helen

F. Fahey, United States Attorney, Laura Pellatiro Tayman, Assistant

United States Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

In a prior unpublished decision, we affirmed the various convic-

tions for drug related crimes of Nathaniel A. Richardson, Jr., Jermaine

Cleavon Golden, and Avery Myron Lawton.1 1 United States v.

Nathaniel A. Richardson, No. 97-4101(L), 162 F.3d 1158 (table),

1998 WL 546096 (4th Cir. 1998) (Nathaniel Richardson). Nathaniel

Richardson and Golden filed a petition for certiorari in the Supreme

Court, which granted certiorari, vacated our just mentioned prior deci-

sion in Nathaniel A. Richardson, Jr. v. United States, 526 U.S. 1155

(1999), and remanded the case for reconsideration in light of the

Court's decision in an unrelated case, Eddie Richardson v. United

States,22 526 U.S. 813 (1999) (Eddie Richardson). Upon reconsidera-

tion, we affirm both Golden's and Nathaniel Richardson's respective

convictions and sentences.

I.

We consider here the Continuing Criminal Enterprise conviction of

_________________________________________________________________

1 Lawton is not a party to the present appeal.

2 The case in 526 U.S. at 813 involved a defendant named Eddie Rich-

ardson. The current appeal involves a different man, Nathaniel A. Rich-

ardson, Jr. To avoid confusion in this opinion, we will refer to Nathaniel

Richardson's case in our court as Nathaniel Richardson and to the

Supreme Court's opinion in Eddie Richardson's case as Eddie Richard-

son. As well, we may use their given names.

2

Nathaniel A. Richardson, Jr., pursuant to the remand from the

Supreme Court, and as well we consider the argued application of

Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New

Jersey, 120 S.Ct. 2348 (June 26, 2000), to the conspiracy conviction

of Richardson and to Richardson's substantive conviction on Count

THREE. We also consider any application of Apprendi to the sentenc-

ing of these defendants. Other than that, we adhere to our decision in

United States v. Nathaniel A. Richardson, Jr., No. 97-4101(L), 162

F.3d 1158 (table), 1998 WL 546096 (4th Cir. 1998) (Nathaniel Richard-

son).3

son 3

II.

The facts concerning the underlying drug conspiracy leading to the

arrests and trial in this case were set forth in our prior opinion, and

we restate them here.

Evidence at trial (taken in the light most favorable to the

Government) established that at the relevant times charged

in the indictment, Richardson organized and operated a con-

tinuing drug trafficking operation in the Southside Gardens

area of Portsmouth, Virginia. Beginning in 1992, Richard-

son and Joseph Dodd began purchasing crack cocaine in rel-

atively large quantities which they then sold to lower-level

dealers, including [ ] Avery Lawton. Over the next two

years, Richardson purchased ever increasing quantities of

crack cocaine such that early in 1994 Richardson regularly

purchased kilogram quantities of crack cocaine from a sup-

plier named Michael Cromwell.

By 1995, Richardson's illicit business relationship with

Cromwell was thriving to the point that Cromwell sent cou-

riers to Suriname, South America to bring kilogram quanti-

ties of liquid and powder cocaine to the United States on

Richardson's behalf. Cromwell then processed the cocaine,

_________________________________________________________________

3 In the event our earlier opinion in 97-4101(L), 162 F.3d 1158 (table),

did not implicitly find sufficient evidence to sustain Richardson's con-

viction on Count THREE of the indictment, we add that we find an abun-

dance of evidence to sustain that conviction.

3

sometimes with the help of Richardson, and Richardson

then sold quantities to several underlings, including Golden

and Lawton.

. . . In May 1995, Portsmouth police officers, exercising

a valid search warrant at Joseph Dodd's residence, recov-

ered 642.5 grams of crack cocaine. Richardson was present

in the bedroom where the cocaine was found and evidence

at trial established that this cocaine had originally been part

of a larger three kilogram shipment that Richardson stored

at the residence of one Fred Hamm. See JA 344-45.

Following his arrest on drug distribution charges in con-

nection with the May search and seizure, Richardson

expanded his enterprise into heroin distribution. During the

fall of 1995 Richardson provided Hamm with heroin,

instructed Hamm on where to buy cutting agents, and taught

him how to dilute and package the product for street distri-

bution. Lawton was also brought into this expansion of the

drug trade and he began selling the product in the Southside

area. See JA 948-50; 972-75; 10001-02; 1077-79.

Finally, in July 1996, seven defendants (including appel-

lants here) were charged by a federal grand jury in a sixteen-

count indictment alleging a criminal conspiracy to distribute

crack cocaine and heroin. Richardson, Lawton, and Golden,

each plead not guilty and were tried together. Following a

jury trial, appellants were found guilty of various charges.

Richardson was convicted of conspiracy [under 21 U.S.C.

§ 846], engaging in a criminal enterprise[in violation of 21

U.S.C. § 848], possession with intent to distribute crack

cocaine [under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2],

and [two counts of] money laundering [under 18 U.S.C.

§ 1956(a)]. Golden was convicted of conspiracy [under 21

U.S.C. § 846], possession with intent to distribute crack

cocaine [under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2],

and carrying a firearm in relation to a drug trafficking

offense [under 18 U.S.C. §§ 924(c) and 2]. . . .

Nathaniel Richardson, No. 97-4101(L), 162 F.3d 1158 (table), 1998

WL 546096, at **1-2. The district court sentenced Nathaniel Richard-

4

son to life imprisonment for both the continuing criminal enterprise

count and the substantive drug count and to 240 months imprisonment

for each of his two money laundering counts. The district court

vacated Richardson's conspiracy conviction treating it as a lesser-

included offense of the continuing criminal enterprise conviction. The

district court sentenced Golden to 235 months imprisonment for the

conspiracy and possession counts, to be served concurrently, followed

by an additional 60 months imprisonment for the firearm count.

Richardson and Golden timely appealed their convictions to this

court. In that appeal, Richardson raised for the first time the argument

that the district court erred by failing to instruct the jury sua sponte

that all the jurors had to agree unanimously on which three acts con-

stituted the continuing series of violations necessary for a conviction

on the continuing criminal enterprise count.4 4 Nathaniel Richardson,

No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at **5 n.2.

We rejected that argument based on our decision in United States v.

Hall, 93 F.3d 126 (4th Cir. 1996), which held that district courts were

not required to give such an instruction. Nathaniel Richardson, No.

97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at **5 n.2 (cit-

ing United States v. Hall, 93 F.3d at 129-30). We also rejected Rich-

ardson's and Golden's remaining claims and affirmed their

convictions. Nathaniel Richardson, No. 97-4101(L), 162 F.3d 1158

(table), 1998 WL 546096, at **3-8.

Nathaniel Richardson and Golden then appealed our decision in

Nathaniel Richardson to the Supreme Court. In his petition for certio-

_________________________________________________________________

4 Richardson also alleged that (1) the district court erred in failing to

sustain his arguments that the government violated Batson v. Kentucky,

476 U.S. 79 (1986), when exercising its peremptory strikes, (2) the dis-

trict erred by refusing to exclude the testimony of Carnell Byrd as irrele-

vant and prejudicial, (3) the evidence was insufficient to establish that he

was involved in a conspiracy under 21 U.S.C. § 848(a) and (c), (4) he

was entitled to an instruction stating that a mere buyer/seller relationship

is not sufficient to prove a violation of the continuing criminal enterprise

charge, and (5) the court improperly attributed two sentence enhance-

ments based on his use of a firearm and his fleeing from law enforcement

officials. See generally, Nathaniel Richardson , No. 97-4101(L), 1998

WL 546096.

5

rari, Nathaniel Richardson again argued that the jury should have

been instructed to agree unanimously on the specific acts that consti-

tuted the series of violations for the continuing criminal enterprise

count.55 While Nathaniel Richardson's and Golden's petition was

pending, the Supreme Court held in the unrelated case, Eddie

Richardson, that under the continuing criminal enterprise statute, 21

U.S.C. § 848, the jury had "to agree unanimously about which spe-

cific violations make up the `continuing series of violations.'" Eddie

Richardson, 526 U.S. at 815. This decision abrogated the holding of

United States v. Hall that such an instruction was not required. See

United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000) (acknowl-

edging Hall's abrogation). Pursuant to its holding in Eddie

Richardson, the Court vacated our decision in Nathaniel Richardson

and remanded for reconsideration in light of its holding in Eddie

Richardson. Nathaniel A. Richardson, Jr. v. United States, 526 U.S.

1155 (1999). Richardson now argues that the district court committed

reversible plain error by failing to give a unanimity instruction and

that we should exercise our discretion to notice the error, reverse his

conviction, and order a new trial. Richardson also reasserts all his

prior arguments raised to this court in his first appeal.

Golden was not convicted of continuing criminal enterprise, thus

the Supreme Court's decision in Eddie Richardson did not affect our

decision regarding Golden in Nathaniel Richardson. In Nathaniel

Richardson, Golden only pursued his claim that the district court erro-

neously failed to sustain his Batson challenge. Nathaniel Richardson,

No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at **2-3.

This was also the only claim Golden pursued on certiorari to the

Supreme Court. Golden reasserts his Batson claim in this appeal.

_________________________________________________________________

5 Richardson also presented the following arguments to the Supreme

Court: (1) the district court failed to grant his Batson motion, (2) the evi-

dence was insufficient to establish his guilt on the continuing criminal

enterprise count, (3) the evidence was insufficient to prove his guilt on

the substantive drug charge, and (4) the court erred in adding a two-point

enhancement to his sentence.

6

III.

To convict a defendant of continuing criminal enterprise under 21

U.S.C. § 848(c), the government must show that a defendant commit-

ted a felony violation of the federal drug laws and that "such violation

[was] a part of a continuing series of violations of [the federal drug

laws]." 21 U.S.C. § 848(c)(2); see Brown, 202 F.3d at 698. The dis-

trict court instructed the jury that "the phrase`a continuing series of

violations' means three or more violations of federal narcotics laws

committed which are in some way related to another." However, the

district court did not instruct the jury that it had to agree unanimously

on which three acts constituted the continuing series. Eddie Richard-

son now requires such an instruction. Because Richardson did not,

and indeed could not, object to the exclusion of such an instruction

at the time of his trial, we evaluate his case to see if the failure to

include the instruction constitutes plain error that warrants a new trial.

See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

731-32 (1993).

Under the standard set forth by the Supreme Court in United States

v. Olano, we may only reverse a conviction for plain error if the

defendant establishes the following: (1) that an error occurred, (2) that

it is plain, and (3) that the error affected his substantial rights. Olano,

507 U.S. at 732. "Moreover, Rule 52(b) leaves the decision to correct

the forfeited error within the sound discretion of the court of appeals,

and the court should not exercise that discretion unless the error seri-

ously affect[s] the fairness, integrity or public reputation of judicial

proceedings." Olano, 507 U.S. at 732 (alteration in original) (internal

quotation marks and citations omitted).

Under Olano, Richardson must first show that there was an error.

Richardson argues, the government concedes, and we agree that the

failure to include a unanimity instruction on the continuing criminal

enterprise count was an error in light of Eddie Richardson. This error,

as argued by Richardson and conceded by the government, was also

plain. An error is plain when the law was clear at the time of the trial,

but the action is clearly contrary to the law at the time of the appeal.

See United States v. Hastings, 134 F.3d, 235 at 239-40 (4th Cir. 1998)

(citing Johnson v. United States, 520 U.S. 461, 467-68 (1997); United

States v. David, 83 F.3d 638, 645 (4th Cir. 1996)). Under our prece-

7

dent in Hall, a unanimity instruction was not required during Richard-

son's trial, but Eddie Richardson changed the law for this appeal, thus

the error is plain.

While Richardson has established the first two prongs of the Olano

analysis, he must also show that the error affected his substantial

rights and, if so, that we should use our discretion to correct the error.

We address these two points in turn.

A.

To determine if an error affected Richardson's substantial rights,

we must find that it was prejudicial, or more specifically, that it "af-

fected the outcome of the district court proceedings." See Olano, 507

U.S. at 734. Unlike a harmless error analysis, Richardson bears the

burden of showing that the error was prejudicial. Olano, 507 U.S. at

734. As we explained succinctly in United States v. Hastings:

On harmless error review, a defendant is entitled to reversal

of his conviction unless the Government can establish that

the error does not affect substantial rights. In contrast, on

plain-error review, a defendant is entitled to reversal only

upon a showing that the error does affec[t] substantial rights,

that is, that the error actually affected the outcome of the

proceedings.

134 F.3d 235, 240 (4th Cir. 1998) (alteration and emphasis in origi-

nal) (internal quotations and citations omitted) (citing Olano, 507

U.S. at 734).

In his brief, Richardson argues that an Eddie Richardson error can-

not be harmless. Under circuit precedent, we presume prejudice when

an error cannot be reviewed for harmlessness. See Hastings, 134 F.3d

at 240 (noting that in this circuit, an error that cannot be reviewed for

harmlessness automatically satisfies the prejudice prong of the plain

error inquiry). Thus, Nathaniel Richardson argues that he need not

show prejudice from the error because the failure to instruct on an ele-

ment of a crime can never be harmless. See, e.g., United States v.

David, 83 F.3d 638, 647 (4th Cir. 1996). Richardson's briefs, there-

8

fore, provide no specific demonstration of prejudice due to the lack

of a unanimity instruction on the continuing criminal enterprise count.

Richardson filed his brief before our decision in United States v.

Brown. In Brown, we determined that Eddie Richardson errors which

have been preceded by objection at trial are subject to harmless error

analysis, Brown, 202 F.3d at 699. Richardson's brief, of course, did

not take Brown into account. But, at oral argument, Richardson

argued and now argues with some logic that because he contested the

veracity of all the government's witnesses at trial, the jury could have

disbelieved any or all of the witnesses. Therefore, the argument goes,

we do not know which violations the jury unanimously agreed upon.6 6

However, on plain error review, it is the defendant's burden to show

that the error affected the outcome of the proceedings. Olano, 507

U.S. at 734. The fact that Richardson established that many of the

witnesses had a motive to lie or exaggerate does not show that the

jurors disbelieved the witnesses and that the jurors in turn would not

have convicted him on the continuing criminal enterprise count under

proper jury instructions. Even under a harmless, rather than plain,

error review, we are of opinion that the government has shown that

the error does not affect substantial rights. In addition to the convic-

tion on Count THREE, the hundreds of felony drug transactions in

which Richardson was shown to have participated leaves no doubt

that two of them were valid. See note 6, infra .

Upon a review of the record, we have found affirmative evidence

of hundreds of substantive felony violations of the federal drug laws

in which Richardson either possessed, sold, bought, or prepared crack

cocaine or other illegal drugs.7 7 While the witnesses' credibility may

_________________________________________________________________

6 This is apparently Richardson's only available argument because of

lack of affirmative evidence which tends to discount the evidence offered

by the government. He called no witnesses in the case which went to the

jury on the evidence of the government. The docket sheet shows: "Deft.

Richardson presented no evidence and rested."

7 Examples contained in the record include the following: Weekly sales

of two ounces of crack cocaine to Bob Holman, perhaps a dozen transac-

tions -- throughout summer of 1992. J.A. 445. Repeated sales of quarter

ounce and half ounce packages of crack to Mr. Byrd-- summer 1992.

J.A. 821. Sale of crack to Mr. Jett -- summer of 1992. J.A. 967. Multiple

9

have been questioned due to their various motives for testifying and

their activities as drug dealers, on this record the incidents themselves

were not subject to question unless the jury did not believe the wit-

nesses. As noted, Richardson essentially argues that the record does

not show which three violations the jury agreed upon when there were

multiple violations to choose from. Because of the sheer number of

_________________________________________________________________

purchases of four and one-half ounces of crack from"Chef" -- spring of

1993. J.A. 447. Repeated purchases of ten ounces of crack from "Black"

-- April and May of 1993. J.A. 450. "Fronting" for sale to Miss Craw-

ford a quarter ounce, then a half ounce, and then another half ounce all

on the same day -- spring 1994. J.A. 525. Two sales of one ounce pack-

ages of crack to Miss Crawford -- spring 1994. J.A. 525. Sales of four

and one-half ounces of crack to Miss Crawford two to three times a

week, perhaps some forty transactions -- summer to winter of 1994. J.A.

536. Sale of a twenty dollar "piece" of crack to Miss Faison -- 1994.

J.A. 946. Two sales of an ounce of crack to "Marcus" -- 1994. J.A. 947.

Three deliveries of one-half ounces of crack packaged for sale to Mr.

Barnes in a single night -- November 8, 1994. J.A. 1070. Delivery of

another one half-ounce of crack to Mr. Barnes the next night -- Novem-

ber 9, 1994. Sale of four and one-half ounces of crack to Mr. Hamm

roughly every three days for most of a year, perhaps over one hundred

separate transactions -- 1994. J.A. 313. Multiple deliveries of crack

cocaine to Mr. Golden, Mr. Lawton, and Miss Crawford-- 1994. J.A.

315. Possession of 160 quarter ounces of crack packaged for sale --

spring of 1995. J.A. 847. Delivery of heroin to Mr. Lawton -- spring of

1995. J.A. 951. Possession of three kilograms of crack -- April of 1995.

J.A. 344. Sale of crack to Mr. Sweat -- 1995. J.A. 848. Separate, weekly

deliveries of one-half to one kilogram of crack to Mr. Golden, to Mr.

Dodd, and to Mr. Hamm, perhaps more than sixty transactions -- late

1994 to early 1995. J.A. 318. Daily sales of ten dollar bags of heroin to

Miss Faison, more than two hundred separate transactions -- June of

1995 through January of 1996. J.A. 948. Purchase of two kilograms of

crack from Mr. Cromwell -- summer of 1995. J.A. 1117. Purchase of an

additional kilogram of crack from Mr. Cromwell -- summer of 1995.

J.A. 1122. Financing trip of Miss Wright to ferry two kilograms of

cocaine back from Surinam -- summer of 1995. J.A. 1123. Delivery of

forty to fifty ten dollar bags of heroin to Miss Madsen -- fall of 1995.

J.A. 975. Sale of six bags heroin to Mr. Barnes on five separate occa-

sions -- November of 1995. J.A. 1079. Sale of twenty dollar piece of

crack to Miss Elliot -- December of 1995. J.A. 760.

10

violations not contested by evidence, the fact that the jury was

instructed that it must find three violations, and Richardson's inability

to demonstrate that had the jury been properly instructed it would not

have unanimously found the extra required violations,8 8 to that found

in Count THREE, under the circumstances, we hold that Richardson

has not sustained his burden of showing that the Eddie Richardson

error affected the outcome of the proceeding. The proof against

Nathaniel Richardson was simply overwhelming.

B.

Even if there were prejudice, we should decline to correct the error

unless it "seriously affects the fairness, integrity or public reputation

of judicial proceedings." Olano, 507 U. S. 732 (internal quotations

omitted). In view of the hundreds of felonious drug transactions, evi-

dence of which the government produced, we conclude, and it is our

opinion, that the fairness, integrity or public reputation of the judicial

proceedings in this case are not seriously affected by the affirmance

of the judgment of conviction and that the conviction should not be

set aside merely because the jury was not instructed to isolate three

violations among the hundreds before it.

IV.

Richardson now argues that Jones v. United States, and we note

that the subsequent decision of Apprendi v. New Jersey, 120 S. Ct.

2348 (2000), is on the same subject, should invalidate his convictions

on Count ONE, conspiracy, and Count THREE, possession with

intent to distribute 50 grams or more of cocaine.

With respect to the conviction on conspiracy, Count ONE, that

conviction was vacated by the district court because the district court

considered it as a lesser included offense under Count TWO, a Con-

tinuing Criminal Enterprise. The government did not appeal the vaca-

tion of the conspiracy offense, and the question is moot. Thus we do

not address it. Richardson was not sentenced for conviction under

Count ONE.

_________________________________________________________________

8 Even assuming the conspiracy conviction does not count.

11

With respect to the conviction under Count THREE, Richardson

claims that neither the drug type or drug quantity were treated as ele-

ments of the offense. The argument is not well taken because there

is no factual basis for the argument. Both the drug type and quantity

were set forth in the indictment and the jury was charged in that

respect.

Count THREE of the indictment provides in pertinent part as fol-

lows:

Nathaniel A. Richardson, Jr., . . . did unlawfully, knowingly,

and intentionally possess with the intent to distribute fifty

(50) grams or more of a mixture or substance containing

cocaine base . . . in violation of Title 21, United States Code

Section 841(a)(1) . . . .

So the indictment explicitly charged Richardson with 50 grams or

more of a substance containing cocaine base. Both the drug type and

quantity Richardson complains about were explicitly charged in the

indictment.

The district court ever so carefully charged the jury. Indeed it pre-

pared a jury charge of 82 pages which it read to the jury and then

gave to the jury in writing to take to the jury room. The charge was

complete with an index of 63 items and included a letter for letter rec-

itation of all of Count THREE, explicitly including the following lan-

guage:

Nathaniel A. Richardson, Jr., unlawfully, knowingly, and

intentionally possessed with the intent to distribute fifty (50)

grams or more of a mixture or substance containing cocaine

base.

The jury was further charged that in order to convict the govern-

ment must prove beyond a reasonable doubt that:

. . . Nathaniel A. Richardson, Jr., possessed the controlled

substance described in the indictment. (italics added)

12

Thus, the indictment explicitly charged the defendant with posses-

sion of 50 grams or more of the illegal drug crack cocaine. The jury

was charged in the terms of the indictment and was charged that in

order to convict the government must prove that the defendant "pos-

sessed the controlled substance described in the indictment."

The government could not have been more explicit as to the drug

quantity and type in the indictment, and the district court could hardly

have been more explicit in its jury charge. Thus, as noted, there is no

factual basis for the claim that Jones was not complied with. In our

opinion, there is no error at all with respect to the indictment and jury

charge under Count THREE, harmless, plain or otherwise. Apprendi,

120 S.Ct. at 2362-2363, adopts the rule in Jones , so the result would

be the same for an argument under Apprendi.

V.

Richardson and Golden also challenge several of their sentences

under the recent case of Apprendi v. New Jersey , 120 S.Ct. 2348 (2000).9

9

Under Apprendi, "Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reason-

able doubt." 120 S.Ct. 2362. In United States v. Angle, No. 96-4662,

(4th Cir. Oct. 12, 2000), this circuit applied Apprendi to 21 U.S.C.

§ 841, the statute under which Richardson was convicted on Count

THREE. As we decided in Angle,

. . . in order for imprisonment penalties under

§ 841(b)(1)(A) or (B) to apply to the defendants, such that

findings of particular drug quantities could expose them to

imprisonment terms greater than § 841(b)(1)(C)'s catch-all

statutory maximum of twenty years, the drug quantity must

be treated as an element: charged in the indictment, submit-

ted to a jury, and proven to beyond a reasonable doubt.

_________________________________________________________________

9 Richardson does not challenge under Apprendi the sentences imposed

for conviction on Count FIFTEEN and Count SIXTEEN for money laun-

dering, and Golden does not challenge the sentence imposed for convic-

tion on Count Eight for unlawful carrying of a firearm.

13

Angle, slip op. at 15.

Richardson was sentenced to life imprisonment on Count Three,

drug possession with intent to distribute 50 or more grams of crack

cocaine. The statutory maximum provided for such drug possession

is life imprisonment under § 841(b)(1)(A)(iii). Thus, because the

amount of drugs was charged in the indictment and was required to

be found by the jury his convictions complied with Jones and

Apprendi. His sentence on Count THREE presents no Apprendi issue

and is affirmed.10

10

For his conviction on Count TWO, engaging in a Continuing Crim-

inal Enterprise, Richardson was sentenced to life imprisonment. The

Continuing Criminal Enterprise statute, § 848, provides for a maxi-

mum term of life imprisonment. His sentence on Count TWO there-

fore presents no Apprendi issue and is affirmed.

Golden was sentenced to 235 months on Count FOUR, possession

with intent to distribute 4.33 grams of crack cocaine. The statutory

maximum provided for such drug possession under§ 841(b)(1)(C) is

240 months. Thus, his sentence on Count FOUR presents no Apprendi

issue and is affirmed.

Golden was also sentenced to 235 months on Count ONE, conspir-

acy. Sentences under the drug conspiracy statute,§ 846, are those pre-

scribed by the statutes fixing penalties for the substantive offenses

that were the object of the conspiracy. The substantive offenses that

were the object of the conspiracies in this case include possession

with intent to distribute 50 or more grams of crack cocaine in viola-

tion of § 841(a)(1) and § 841(b)(1)(A)(iii) and distribution of heroin

in violation of § 841(a)(1). Where, as here, a general verdict of guilt

is returned on a count charging a conspiracy to distribute multiple

kinds of narcotics, the sentence imposed may not exceed the statutory

_________________________________________________________________

10 Richardson was also sentenced to five years of supervised release on

the drug possession count, to follow his term of imprisonment. We note

that ". . . supervised release is not considered part of the incarceration

portion of a sentence and therefore is not limited by the statutory maxi-

mum term of incarceration." United States v. Pierce, 75 F.3d 173, 178

(4th Cir. 1996).

14

maximum for the least-punished statutory object of the conspiracy on

which the verdict could have been based. See United States v. Quick-

sey, 525 F.2d 337 (4th Cir. 1975). Here, the least-punished object on

which the conspiracy conviction could have been based was distribu-

tion of heroin in violation of § 841(a)(1) and§ 841(b)(1)(C). The

maximum sentence a court may impose for distribution of heroin

under § 841(b)(1)(C) is 240 months and, thus, the maximum sentence

allowed on Golden's conspiracy count is 240 months.

Even if Golden was exposed to punishment beyond 240 months by

the drug quantity found by the district court, U.S.S.G. Ch. 5, Part A.,

235-293 months, his sentence was less than the 240 months maximum

provided by the statute, so he has no complaint beyond resentencing,

which is not required, his sentence already being within the statutory

maximum. See Angle, Slip at p. 17. Golden, having not been injured

by the operation of the Apprendi rule and the Sentencing Guidelines,

his sentence accordingly is not contrary to Apprendi and we so hold.

Cf. Rule 5, Ashwander v. T.V.A., 297 U.S. 288, 347-348 (1936) (Jus-

tice Brandeis concurring).

The convictions and sentences of the defendants are accordingly

AFFIRMED.

15