United States v. William Graham

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 09-5067

WILLIAM LEONARDO GRAHAM, a/k/a

Leo,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William D. Quarles, Jr., District Judge.

(1:08-cr-00411-WDQ-4)

Argued: January 31, 2013

Decided: March 29, 2013

Before TRAXLER, Chief Judge, and AGEE and DAVIS,

Circuit Judges.

Affirmed by published opinion. Judge Davis wrote the opin-

ion, in which Chief Judge Traxler and Judge Agee joined.

COUNSEL

ARGUED: Michael Alan Wein, Greenbelt, Maryland, for

Appellant. Michael Clayton Hanlon, OFFICE OF THE

UNITED STATES ATTORNEY, Baltimore, Maryland, for

2 UNITED STATES v. GRAHAM

Appellee. ON BRIEF: Rod J. Rosenstein, United States

Attorney, Baltimore, Maryland, for Appellee.

OPINION

DAVIS, Circuit Judge:

A jury convicted Appellant William Leonardo Graham of

one count of conspiracy to distribute more than five kilograms

of cocaine, in violation of 21 U.S.C. § 846. Pursuant to 21

U.S.C. § 851, the district court imposed a mandatory life sen-

tence. On appeal, Graham asserts reversible error in three

respects: (1) an alleged violation of the Court Reporter Act,

28 U.S.C. § 753(b); (2) the admission of statements by cocon-

spirators recorded during wiretapped conversations; and (3)

his life sentence contravenes the Constitution. For the reasons

set forth below, we reject each of Graham’s contentions and

we therefore affirm the judgment.

I.

Although several of Graham’s codefendants testified

against him and thereby provided direct evidence of his par-

ticipation in the narcotics conspiracy, their trial testimony was

significantly bolstered by recordings of their wiretapped con-

versations which occurred during the existence of the conspir-

acy. Graham’s focus on appeal before us is that (1) the full

vindication of his right to appellate review has been denied by

the lack of a reliable trial record of the wiretapped conversa-

tions; and, in any event, (2) the district court abused its discre-

tion when it admitted the wiretapped conversations. For the

reasons explained within, we reject each of these contentions.

A.

On September 11, 2008, Graham was named with seven

others in count one of a superseding indictment charging con-

UNITED STATES v. GRAHAM 3

spiracy to distribute and possess with intent to distribute five

kilograms or more of cocaine from March 2006 through

August 2008. Graham alone proceeded to trial; his codefen-

dants entered into plea agreements or (as to one) the indict-

ment was dismissed on motion of the government. Prior to

trial, Graham’s counsel discussed with the prosecuting Assis-

tant United States Attorney ("AUSA") the admissibility of

five recordings of wiretap conversations among Graham’s

codefendants in which Graham was not a participant. The

government indicated that it planned to seek admission of the

recordings as non-hearsay coconspirator statements and/or

pursuant to the present sense impression exception to the

hearsay rule.

Trial took place from August 17 through August 24, 2009.

During opening statements, the AUSA explained to the jury

that the government would present testimony of the case

agent regarding the investigation, specifically as to how the

government was able to install a wiretap on the cellphone of

codefendant Lawrence Reeves, and thereby intercept conver-

sations between Reeves and codefendants Devon Marshall

and Justin Gallardo. The government further explained that

the jury would hear in the recordings that Reeves, Marshall,

and Gallardo were attempting to collect a drug debt from Gra-

ham. (Reeves, Marshall, and Gallardo all testified against

Graham pursuant to plea agreements with the government.)

The government’s first witness, Drug Enforcement Agency

("DEA") Special Agent Thomas Cindric, testified that investi-

gators recorded approximately 35,000 conversations in the

course of the investigation of the conspiracy. Cindric also

confirmed that there were no recordings of Graham himself

talking on the wire.

Next, Reeves testified. He explained how he and Gallardo

were in a partnership: Gallardo received drugs from Arizona,

Reeves distributed them to various buyers and sellers, and

Gallardo returned the proceeds to the Arizona suppliers.

4 UNITED STATES v. GRAHAM

Reeves also described working with Graham to sell drugs,

including going to Graham’s house to "pick up the money that

he owed [him] for [a] [ ] shipment of drugs that [he] gave

him." J.A. 178. Reeves testified that he received a total of six

shipments of cocaine from Arizona. At some point, Reeves

met Marshall, one of Graham’s customers. Reeves testified

that Marshall was unhappy with Graham’s prices and began

to buy directly from Reeves.

Reeves testified that while working with Graham to sell the

fourth shipment of narcotics, which was delivered to Gra-

ham’s home and contained approximately 26 kilograms of

cocaine and about 200 pounds of marijuana, they "gave [the

drugs] to [Graham] up front and expected to get payment

afterwards, after he was done selling." Id. at 191. Graham

complained about the quality of the marijuana, however, and

told them "he tried to sell" it but could not. Id. at 192. As a

result, he owed Reeves and Gallardo money for the mari-

juana, which resulted in the Arizona suppliers going unpaid.

According to Reeves, Graham’s debt after that transaction

was "about $30,000." Id.

Reeves further testified that Graham had received a portion

of four of the six shipments from Arizona, but future supplies

had ended "[b]ecause Leo [Graham] owed [them] on the

money on the marijuana and he refused to pay. And therefore,

[they] cut him off." J.A. 199. Specifically, Reeves explained

that the sixth shipment was the last shipment from Arizona:

There was a huge, basically, beef between myself,

Mr. Gallardo, and the people in Arizona because of

this marijuana, and because of the shortage, how

those [kilos] came short, and the money not come in.

So they basically shut us down.

J.A. 199.

UNITED STATES v. GRAHAM 5

Thereafter, Reeves asked Marshall to assist in persuading

Graham to pay the debt. Reeves and Marshall planned to tell

Graham that "Mexicans" were looking for him in hopes that

he would be intimidated into paying the debt. Id. at 203. Dur-

ing Reeves’s testimony, the government played three record-

ings1 of wiretapped phone conversations on Reeves’s phone.

The jurors were given binders containing transcripts of each

recording played during the trial. When a recording was

played, the prosecutor referenced the corresponding tab num-

ber in the transcript binder for the jury to follow along.

Justin Gallardo was the second cooperating codefendant to

testify. He testified that he transported cocaine from Arizona

to Maryland, helped Reeves distribute it in Baltimore, and

took the money earned from the sales to Arizona. Gallardo

confirmed that Graham received multiple kilograms of each

cocaine shipment the group received. He testified that he kept

tally sheets, which were seized in August 2008 during the

execution of a search warrant issued for his home. Gallardo

used the sheets to keep track of the amount and type of drug

each customer received and the money paid, and the portion

of the money to be returned to Arizona. Gallardo’s tally

sheets showed that Graham acquired cocaine and marijuana

from the group and that he owed or paid money for those

drugs.

1

Call number 1452 was played first, and it corresponded to "tab 8" in

the binder. During call 1452, Reeves and "Big Moe" spoke about Moe’s

attempts to locate Graham. "Big Moe" was another associate, and he was

offered a portion of the pay-out if he was successful in persuading Graham

to pay the debt.

The second call played was call 23, which corresponded to "tab 13" in

the binder. It consisted of Reeves talking with Gallardo about Marshall’s

attempts to get Graham to pay the debt. Reeves told Gallardo that Graham

had refused to pay.

The third call played was call 1454, which corresponded to "tab 9" in

the binder. The call was between Reeves and "Big Moe." Reeves

explained Marshall’s attempt to intimidate Graham by telling him "Esses"

were looking for him, and that Graham continued to refuse to pay the debt.

6 UNITED STATES v. GRAHAM

Marshall was the third cooperating codefendant to testify.

He explained that in early 2007 he began selling cocaine that

he received from a supplier named "Leonardo." Marshall

identified Graham as his supplier, "Leonardo." According to

Marshall, he would pick up kilogram quantities of cocaine

from Graham at Graham’s home. Marshall stated that in Octo-

ber 2007 he began to obtain his supply directly from Reeves.

Marshall testified that Reeves informed him that Graham

owed Reeves money,2 and at Reeves’s request, Marshall

agreed to talk to Graham. When he did so, Marshall told Gra-

ham that Mexican cocaine suppliers were looking for him. In

response, Marshall testified, Graham said he refused to give

any money to Reeves until he "gets some more product" —

"coke." J.A. 385.

After meeting with Graham, Marshall relayed the informa-

tion to Reeves via telephone. Call 22, which was "tab 12" of

the transcript binder, was played to the jury. In that call, Mar-

shall told Reeves that Graham had refused to pay the debt. In

this conversation, however, Marshall did not tell Reeves that

Graham wanted more drugs, and Marshall explained during

his testimony that this was because he (Marshall) did not like

to talk about drugs over the phone. Marshall did indicate dur-

ing the call, however, that Graham had said more, and that he

(Marshall) would discuss it with Reeves the next day.

In its rebuttal closing argument, the government replayed

the first twenty-three seconds of one of the conversations

between Reeves and "Big Moe." See supra n.1.

The district court instructed the jury that the actual

recorded conversations constituted the evidence, and not the

2

Call 20, which corresponded to "tab 11" of the transcript binder, was

played for the jury. In that call, Reeves asked Marshall to "pull it off" (i.e.,

get Graham to pay the debt), and told Marshall that he could "keep the

rest" if he could manage to get the debt paid. J.A. 664.

UNITED STATES v. GRAHAM 7

transcripts, which were simply aids to follow the conversa-

tions.

The jury convicted Graham of conspiracy to distribute five

kilograms or more of cocaine. The parties entered a stipula-

tion that stated that the exhibits from the trial would be "re-

tained by counsel who offered them, pending appeal." J.A.

503.

Graham was sentenced on November 6, 2009. During the

sentencing proceeding, the government reminded the district

court that it had filed an information under 21 U.S.C. § 851,

"noting that the Defendant had three prior felony drug

offenses." J.A. 515. The court asked whether there was a

mandatory minimum sentence in the case, and the govern-

ment confirmed that Graham faced a mandatory life sentence

as a result of the § 851 information. In response, the court

stated "[f]rankly, if I were applying 3553(a) factors, there is

no way that I would impose that sentence in this case . . . .

[I]t would be a severe sentence, but it would certainly not be

a life sentence that I am required to impose in this case." J.A.

516. The court imposed a sentence of life imprisonment. Gra-

ham filed a timely notice of appeal.

B.

We appointed appellate counsel for Graham. During his

research of appealable issues, counsel discovered that none of

the recordings played during trial had themselves been

recorded or transcribed by the court reporter during their pre-

sentation to the jury. Concerned that, as he had not been pres-

ent for trial, his incomplete knowledge of the trial record

might impede his representation of Graham before us, counsel

filed and we granted a consent motion to rescind the briefing

order to permit counsel to pursue relief before the district

8 UNITED STATES v. GRAHAM

court pursuant to Federal Rule of Appellate Procedure

("FRAP") 10.3

Thereafter, in summer 2011, the government provided to

counsel a copy of a CD containing the recordings and a copy

of the transcript binder. The district court held an evidentiary

hearing to determine which recordings were played for the

jury during trial. Prior to the hearing, the government submit-

ted two affidavits to the district court. One was of the lead

trial prosecutor, a former AUSA. The former AUSA stated

that he, his co-counsel, and the case agent, had reviewed the

DEA wiretaps in Graham’s case, and selected which calls

would be played at trial. He stated that he organized the prep-

aration of the transcripts for the calls they planned to play for

the jury, and checked the transcripts for errors prior to trial.

He stated that, based on his recollection, as refreshed by his

review of the trial transcript, the wiretap CD, and examination

of the transcript binder, he could "attest that the compact disk

provided to [him] by [the current AUSA] contains true and

accurate copies of the wiretap recordings played during the

trial in [Graham’s] case." J.A. 710. He specifically identified

which recorded calls from the duplicate CD had been played

3

Federal Rule of Appellate Procedure 10(e) provides as follows in perti-

nent part:

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly dis-

closes what occurred in the district court, the difference must be

submitted to and settled by that court and the record conformed

accordingly.

(2) If anything material to either party is omitted from or mis-

stated in the record by error or accident, the omission or misstate-

ment may be corrected and a supplemental record may be

certified and forwarded:

...

(B) by the district court before or after the record has been for-

warded . . .

FRAP 10(e).

UNITED STATES v. GRAHAM 9

at each reference in the trial transcript to a tape being played

to the jury.

During the hearing, the former AUSA testified consistently

with the averments in his affidavit. He stated that he was in

the courtroom when all of the recordings were played to the

jury. He further testified that in preparation for the hearing, he

reviewed each page of the trial transcript which indicated a

recorded call had been played and "compar[ed] them to the

transcripts and ma[de] sure that the transcripts were the tran-

scripts that related to those calls." J.A. 729.

The second affidavit submitted prior to the hearing was of

DEA Task Force Officer Detective William Nickoles. Nick-

oles stated that he was the case agent on Graham’s case and,

in that capacity, he reviewed wiretap recordings and the tran-

scripts of the recordings selected to be used at trial. He

asserted that he was present at trial when the calls were

played on August 18, 2009, and when the prosecutor played

a portion of a call during his rebuttal closing argument. Nick-

oles averred that he reviewed the contents of the CD that con-

tained copies of the recordings prepared for trial, and the copy

of the transcript binder prepared for the trial, and based on

that review and his best recollection of relevant events, he

could "attest that the compact disk provided to [him] by [the

current AUSA] contains the true and accurate copies of the

wiretap recordings played during the trial in [Graham’s]

case." J.A. 714.

Nickoles also testified at the hearing. He explained that,

while working as the case agent on Graham’s case, he had

reviewed every wiretap call in the case. He also stated that he

executed his affidavit after listening to the audio CD and

reviewing the transcript binder provided to him, which

together led him to conclude that they were accurate copies of

the originals used in Graham’s trial. Finally, he testified that

the transcribed portions of the five phone calls in the five tabs

10 UNITED STATES v. GRAHAM

in the transcript binder were played in their entirety, and only

the transcribed portions were played to the jury.

On July 25, 2012, the district court issued a Memorandum

Opinion and Order Confirming Record on Appeal, which

made findings as to which calls, and which portions of the

calls, were heard by the jury. Six tapes were played at trial,

covering five calls; one recording was replayed during the

government’s rebuttal argument. The district court "[found]

beyond a reasonable doubt that the wiretap recordings played

at trial were those indicated by the testimony and affidavits"

presented by the government. J.A. 804. Thereafter, the parties

resumed their briefing in this appeal.4

C.

Graham argues that the court reporter’s failure to transcribe

the contents of the wiretap conversations played to the jury

during trial constituted a violation of the Court Reporter Act

("CRA"), 28 U.S.C. § 753(b), and that the district court

lacked sufficient proof at the FRAP 10 hearing to conclude

definitively what wiretap recordings were played to the jury.

In response, the government argues that the district court’s

findings and conclusions are sound and that, even if the dis-

trict court erred in failing to ensure at trial that the wiretap

conversations played were recorded or transcribed contempo-

raneously by the court reporter, the error was resolved by the

district court’s FRAP 10 conclusions.

We review a district court’s compliance with the CRA de

novo. United States v. Brown, 202 F.3d 691, 696 (4th Cir.

2000).

The CRA states, in pertinent part:

4

In our summary of the evidence set forth above in section I.A. of this

opinion, we have interpreted the record fully in accordance with the dis-

trict court’s findings and conclusions.

UNITED STATES v. GRAHAM 11

Each session of the court and every other proceeding

designated by rule or order of the court or by one of

the judges shall be recorded verbatim . . . . Proceed-

ings to be recorded under this section include (1) all

proceedings in criminal cases had in open court

....

28 U.S.C. § 753(b).

We have not previously addressed the issue whether a dis-

trict court’s failure to ensure the transcription of audio record-

ings played during a trial constitutes a violation of the CRA.

We need not resolve the issue in this case, however, because

Graham is not entitled to relief on his claim in any event. In

United States v. Brown, we held that, although a defendant

has a right to a meaningful appeal, with the assistance of a

complete transcript, "omissions from a trial transcript only

warrant a new trial if ‘the missing portion of the transcript

specifically prejudices [a defendant’s] appeal.’" 202 F.3d 691,

696 (4th Cir. 2000) (quoting United States v. Gillis, 773 F.2d

549, 554 (4th Cir. 1985)). Thus, "‘to obtain a new trial,

whether or not appellate counsel is new, the defendant must

show that the transcript errors specifically prejudiced his abil-

ity to perfect an appeal.’" Brown, 202 F.3d at 696 (quoting

United States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999)).

Because we find the district court’s FRAP 10 findings were

amply supported by the evidence presented at the hearing and

enabled Graham to "perfect [his] appeal," we need not and do

not address whether the CRA was violated. Id.

D.

In reviewing the district court’s decision on a FRAP 10

motion, we consider the district court’s findings conclusive

"unless intentionally false or plainly unreasonable." United

States v. Hernandez, 227 F.3d 686, 695 (6th Cir. 2000) (citing

United States v. Zichettello, 208 F.3d 72, 93 (2nd Cir. 2000);

United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir. 1993);

12 UNITED STATES v. GRAHAM

United States v. Serrano, 870 F.2d 1, 12 (1st Cir. 1989);

United States v. Mori, 444 F.2d 240, 246 (5th Cir. 1971)).

Graham argues that the evidence presented at the FRAP 10

proceeding was insufficient to correct the lack of transcription

of the recordings played to the jury. This is so, he contends

conclusorily, because the trial court did not hear enough evi-

dence at the FRAP 10 hearing to find definitively which

recordings were played during the trial.

We disagree. The district court’s findings were adequately

supported by the evidence. First, the district court pointed to

the fact that both of the witnesses were closely involved in the

actual preparation of the original disc containing the record-

ings and transcript binder used at the trial. Both were present

throughout the trial. The district court also noted that the lead

trial prosecutor testified that he "very clearly" recalled which

recording was played in his rebuttal closing, and after review-

ing the trial transcript, the disc, and the transcript binder,

remembered which of the other recordings had been played.

J.A. 804-05. Lastly, the district court emphasized the fact that

"Graham [who attended the hearing with counsel] presented

no contradictory affidavits or testimony," and concluded that

the calls that were played were calls 20, 22, 23, 1452 and

1454. Id. at 805-06.

Based on the wealth of highly persuasive evidence before

the district court, we conclude the court had a sufficient basis

to find beyond a reasonable doubt that the copies of the disc

and transcript binder were genuine and accurate duplicates of

the calls that were played at trial. We have no hesitation in

concluding that Graham’s counsel has available in this case

an appellate record that fully and accurately reflects the pre-

trial and trial proceedings before the district court leading to

the jury’s verdict. Cf. Hernandez, 227 F.3d at 695.

UNITED STATES v. GRAHAM 13

E.

Graham next argues that the district court erred in admit-

ting the wiretap conversations of his coconspirators under

Federal Rule of Evidence ("FRE" or "Rule") 801(d)(2)(E)5

because the tapes merely captured "idle chatter" between

them about Graham’s past debt for marijuana, and because the

conversations were not in the course, or in furtherance, of a

conspiracy.

We review a district court’s admission of a statement under

Rule 801(d)(2)(E) for abuse of discretion. United States v.

Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). The abuse of

discretion standard is highly deferential, and a reviewing

court should not reverse unless the ruling is "manifestly erro-

neous." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)

(quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)).

The standard for admission of a coconspirator statement is

clear in this Circuit:

A statement is not hearsay if it is "a statement by a

co-conspirator of a party during the course and in

furtherance of the conspiracy" and is offered against

the party. Fed. R. Evid. 801(d)(2)(E). In order to

admit a statement under 801(d)(2)(E), the moving

5

Rule 801(d)(2)(E) provides:

(d) Statements That Are Not Hearsay. A statement that meets the

following conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered

against an opposing party and:

(E) was made by the party’s coconspirator during and in

furtherance of the conspiracy.

The statement must be considered but does not by itself establish

. . . the existence of the conspiracy or participation in it under (E).

Fed. R. Evid. 801(d)(2)(E).

14 UNITED STATES v. GRAHAM

party must show that (i) a conspiracy did, in fact,

exist, (ii) the declarant and the defendant were mem-

bers of the conspiracy, and (iii) the statement was

made in the course of, and in furtherance, of the con-

spiracy. See, e.g., United States v. Heater, 63 F.3d

311, 324 (4th Cir. 1995). Idle conversation that

touches on, but does not further, the purposes of the

conspiracy does not constitute a statement in further-

ance of a conspiracy under Rule 801(d)(2)(E). See

United States v. Urbanik, 801 F.2d 692, 698 (4th Cir.

1986).

United States v. Pratt, 239 F.3d 640, 643 (4th Cir. 2001). "A

statement by a co-conspirator is made ‘in furtherance’ of a

conspiracy if it was intended to promote the conspiracy’s

objectives, whether or not it actually has that effect." United

States v. Shores, 33 F.3d 438, 443 (4th Cir. 1994), cert.

denied, 514 U.S. 1019 (1995).

The existence of the three prongs of admissibility for

coconspirator statements (existence of a conspiracy, member-

ship therein of defendant and declarants, and the statements

being made in the course of and in furtherance of that conspir-

acy) must be supported by a preponderance of the evidence.

See Blevins, 960 F.2d at 1255. The incorrect admission of a

statement under the coconspirator statement exclusion from

the definition of hearsay is subject to harmless error review.

United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986).

Graham first contends that the district court erred by not

making explicit findings on the existence of a conspiracy

prior to admitting the statements. This argument fails, how-

ever, because a trial court is not required to hold a hearing to

determine whether a conspiracy exists before admitting state-

ments under the rule, and the court need not explain the rea-

soning behind the evidentiary ruling. Blevins, 960 F.2d at

1256. We "may affirm a judgment where the record reveals

that the co-conspirator’s statements were plainly admissible,

UNITED STATES v. GRAHAM 15

whether or not a detailed rationale for admitting the state-

ments had been stated by the trial court." Id.

Next, Graham argues that each of the five recordings

played for the jury was nothing more than "profanity laden

conversation" about collecting a debt from Graham, but that

"[t]here’s no way that [conversations about] a ‘debt collect-

ing’ job" constituted coconspirator statements. Appellant’s

Br. at 65-66 (brackets added). In other words, Graham con-

tends that the conversations played for the jury were not "in

furtherance of a conspiracy" to distribute cocaine.

The government responds that the only issue surrounding

the admissibility of the statements is whether the conspiracy

continued to exist on June 27, 2008, when the recordings were

made. The government points to the efforts of Reeves and

Marshall to collect the unpaid sums from Graham so that the

money could be used to salvage the relationship with their

Arizona-based supplier as indicative that the conspiracy was

ongoing at the time of the calls. To the extent Graham is argu-

ing that he withdrew from the conspiracy, the government

adds, that claim must fail because it is the defendant who has

the burden of establishing withdrawal, and "‘[a] mere cessa-

tion of activity in furtherance of the conspiracy is insuffi-

cient.’" Gov’t’s Br. at 46-47 (quoting United States v. Walker,

796 F.2d 43, 49 (4th Cir. 1986)). The government contends

that although Graham may have refused to pay the debt, he

did not take affirmative action to withdraw from the conspir-

acy.

Additionally, the government argues the conversations

were "in furtherance of the conspiracy," because "it was nec-

essary for members of the conspiracy, Reeves and Marshall,

to discuss the status of the conspiracy, the status of its mem-

bers, and monies owed by one member to another." Gov’t’s

Br. at 57.

The government’s position is persuasive. The evidence

demonstrates that one of the primary reasons Reeves and

16 UNITED STATES v. GRAHAM

Marshall sought to collect the debt from Graham was to gain

funds to continue or re-establish their drug supply, which

according to their testimony at trial, had been plentiful before

Graham’s refusal to ante up dislocated their profitable enter-

prise. Additionally, the evidence shows that Graham himself

continued to want to engage in further drug activities with the

group by receiving more cocaine. There is, in contrast, no evi-

dence that Graham attempted to disavow the conspiracy and

communicate his departure to his coconspirators. See Smith v.

United States, 133 S. Ct. 714, 719 (2013) (holding that the

burden rests with the defendant to establish withdrawal from

a conspiracy). What we have said in the context of substantive

liability for a conspiracy offense applies with equal force in

the context of the admissibility of coconspirator statements:

"evidence of an internal conflict between [a defendant] and

other members of the conspiracy" is not alone sufficient to

undermine proof that coconspirator statements were made in

furtherance of and in the course of the conspiracy. See United

States v. Green, 599 F.3d 360, 369 (4th Cir.), cert. denied,

131 S.Ct. 271 (2010).

Even though Graham himself was not captured in a conver-

sation with a coconspirator in any of the 35,000 calls recorded

during the investigation of this case, and even though there

was adversity between Graham and his coconspirators, each

call played at trial contained discussions that rendered them

"in furtherance" of the overall conspiracy. The calls all con-

sisted of the speakers exchanging information about the status

of their efforts to collect the intra-conspiracy debt owed by

Graham. Some included discussions of the plan to give Gra-

ham the impression (to intimidate him into paying) that

"Esses" or "Mexicans" were looking for him to collect on the

debt, and most ended with the speakers planning the next time

they would discuss their efforts to persuade Graham to pay

up. It is apparent that debt collection was a primary aim of the

conspiracy at the time the calls were made, most likely

because recoupment of the unpaid funds had some bearing on

UNITED STATES v. GRAHAM 17

the group’s ability to receive additional narcotics from their

Arizona source.

In short, the district court’s admission of the challenged

statements was neither erroneous nor, it necessarily follows,

an abuse of discretion. Blevins, 960 F.2d at 1256.

II.

Finally, invoking the strongly-worded sentiments expressed

by the district court at sentencing to the effect that it would

not choose to impose a life sentence if it had a choice in the

matter,6 Graham challenges his mandatory life sentence.7

Although the argument is not made with great clarity, we

understand his principal purpose to be that he wishes to pre-

serve the issue in the event the Supreme Court should elect to

reexamine its holding in Almendarez-Torres v. United States,

523 U.S. 224 (1998).8 In any event, we are bound by

6

The district court stated:

In this case, if I did have my discretion, I would impose a harsh

sentence. It would be a sentence at the bottom of the guidelines.

It would be a 30-year sentence, which I find would be appropriate

and would meet the goals of 3553(a), because you certainly

deserve, I believe, every day of the sentence within the guide-

lines, but, as I said, at the bottom of the guidelines. I impose,

because I am required to, a sentence of life.

J.A. 528.

7

The government’s timely filing of a 21 U.S.C. § 851 information put

Graham on notice of its intent to prove at sentencing three prior felony

drug offense convictions, rendering Graham eligible for an enhanced sen-

tence under 21 U.S.C. § 841.

8

See, e.g., United States v. Mason, 628 F.3d 123, 133-34 (4th Cir.

2010):

Finally, Mason contends that the fact of his prior convictions

needed to be proved to a jury beyond a reasonable doubt.

Because that fact was not found by a jury beyond a reasonable

18 UNITED STATES v. GRAHAM

Almendarez–Torres unless and until the Supreme Court says

otherwise. Accordingly, we reject the challenge to Graham’s

sentence.

III.

For the reasons set forth, the judgment is

AFFIRMED.

doubt, he asserts, the use of the prior convictions to enhance his

sentence violated his Sixth Amendment rights. Mason candidly

acknowledges that this argument is presented for purposes of pre-

serving the issue for the Supreme Court and that, under the pres-

ent jurisprudence of Almendarez–Torres v. United States, 523

U.S. 224 (1998), such an argument cannot be sustained. We

agree. Moreover, we note that since Almendarez–Torres, the

Supreme Court has repeatedly affirmed the exception, as have

we. See Shepard v. United States, 544 U.S. 13, 25–26 & n. 5

(2005); Apprendi v. New Jersey, 530 U.S. 466, 488–90 (2000);

United States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005).