US v. Louis Bryant, No. 06-4977 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4977 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LOUIS ANTONIO Stacks, BRYANT, a/k/a Tinio, a/k/a Black, a/k/a B Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:04-cr-00047-NKM) Argued: September 26, 2008 Decided: November 25, 2008 Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation. Affirmed and remanded curiam opinion. with instructions ARGUED: Jonathan Lawrence Katz, Silver Appellant. Jean Barrett Hudson, OFFICE ATTORNEY, Charlottesville, Virginia, for John L. Brownlee, United States Attorney, Appellee. by unpublished per Spring, Maryland, for OF THE UNITED STATES Appellee. ON BRIEF: Roanoke, Virginia, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Louis Antonio Bryant ( Bryant ) was tried by a jury in the Western District of Virginia and convicted on eight charges stemming from his leadership of a violent drug organization in Charlottesville, Virginia called Project Crud or PJC. this appeal, Bryant raises numerous convictions and life sentence. challenges to In his As explained below, we remand with instructions for the district court to vacate Bryant s 21 U.S.C. § 846 conviction, but affirm his other convictions and life sentence. I. First, Bryant argues that the district court and the government violated his constitutional right to a speedy trial. In analyzing this argument, we must assess: the delay; (2) the reasons for the delay; (1) the length of (3) whether the defendant timely asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. See, e.g., Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. Hopkins, 310 F.3d 145, 150 (4th Cir. 2002). The first factor is the length of the delay. This factor also is a threshold requirement that the defendant must meet before we may actually engage in balancing the four factors. See, e.g., Doggett v. United States, 2 505 U.S. 647, 651-52 (1992). The defendant must show that the delay in his case was beyond the ordinary and was presumptively prejudicial. Bryant s first trial began sixteen months See id. after his indictment was unsealed, and his second trial began twenty-two months after his indictment was unsealed. We assume, without deciding, that this delay is lengthy enough to show presumptive See, e.g., prejudice, and proceed to balance the four factors. id. at 652 n.1. However, in weighing the length of the delay, we note that we have found that longer periods of delay were not unreasonable. See, e.g., Hopkins, 310 F.3d at 150 (concluding two-year delay was not uncommonly long ). The second factor is the reason for the delay. classified valid. reasons delay as improper, neutral, or See United States v. Grimmond, 137 F.3d 823, 828 (4th Cir. 1998). the for We have Improper reasons for delay weigh heavily against government, neutral reasons weigh slightly against the government, and valid reasons weigh in favor of the government. See id. An example of a neutral reason is an understaffed prosecutor s office. See id. Here, the government frequently moved for continuances because this multi-defendant conspiracy case was complicated. was complicated. The district court agreed that the case Moreover, some of the delay was due to the court accommodating defense counsel s schedule. 3 Ultimately, we consider the reason for the delay to be neutral, and weigh it slightly against the government. The third factor is whether the defendant timely asserted his right to a speedy trial. This factor may be weighed in favor of the government when the defendant waits until late in the course of events to assert his right. 137 F.3d at 829. See, e.g., Grimmond, Here, Bryant waited until May 2005, ten months after his indictment was unsealed, to assert his right. By that time, the district court had already calendared the case for trial in November 2005. Moreover, Bryant s first trial began on November 14, 2005, and ended in a mistrial on November 30, 2005. On December 16, 2005, Bryant moved to schedule his second trial no earlier than April 20, 2006. The court granted defendant s motion and scheduled the second trial for May 8, 2006. second trial began on May 8, 2006. Bryant s We weigh this factor in favor of the government. The final factor is prejudice. forms: Prejudice can take three (1) oppressive pretrial incarceration ; (2) anxiety ; and (3) an impaired ability to mount a defense. U.S. at 532. ability to anxiety The most serious form of prejudice is impaired mount incarcerated while See Barker, 407 a pending defense. his awaiting See trial his id. and first Although doubtless and second Bryant suffered trial, was some nothing indicates that Bryant s ability to mount his defense suffered in 4 any respect. Notably, Bryant does not identify any witness whose memory faded, any evidence that was lost, or any similar issue. See, e.g., Grimmond, 137 F.3d at 830. prejudice that Bryant alleges is his Indeed, the only pretrial See Appellant s Am. Sealed Br. 16 17. incarceration. We conclude that this factor weighs in favor of the government. We have carefully balanced the four factors. Barker [T]hese factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. 407 U.S. at 533. Barker, We conclude that there was no violation of Bryant s Sixth Amendment right to a speedy trial. 1 II. Next, Bryant challenges the jury venire, the petit jury at his second trial, and the prosecutor s strike during jury selection. 17 18. use of a peremptory See Appellant s Am. Sealed Br. Initially, we address Bryant s challenge to the jury venire. 1 Bryant also raises a Speedy Trial Act claim. See 18 U.S.C. §§ 3161-3174. We have reviewed the record concerning Bryant s first trial and his second trial. In light of the periods of delay that are excluded in computing time under the Speedy Trial Act, Bryant s Speedy Trial Act claim fails. See id. § 3161(h). 5 The Constitution requires that a criminal defendant receive a jury venire that consists of a fair cross section of the community. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530 (1975); United States v. Williams, 264 F.3d 561, 567 (5th Cir. 2001). According to the Supreme Court: In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the juryselection process. Duren v. Missouri, 439 U.S. 357, 364 (1979). Bryant s argument concerning the jury venire fails. First, Bryant bears the burden of establishing a prima facie violation, see id., yet he does not allege, much less distinctive group was systematically excluded. establish which See Appellant s Am. Sealed Br. 17 18. Second, assuming that Bryant is challenging the purported lack of African-Americans, he presents (and the record before us contains) no evidence that the percentage of African-Americans on the jury venire is not fair and reasonable in relation to the community as a whole. about whether the See id. venire Bryant leaves us to speculate was 6 a reasonable representation. Speculation is no substitute for evidence. See Williams, 264 F.3d at 568 69. Even assuming that Bryant had met the first two requirements, he presents no evidence that the alleged exclusion of African-Americans on the jury venire was systematic, rather than a mere statistical anomaly. Accordingly, we reject Bryant s fair-cross-section challenge to the jury venire. Next, Bryant challenges the racial makeup of the petit jury at his trial. Bryant, however, has no constitutional right to a fair cross-section of the community on his petit jury. See, e.g., Taylor, 419 U.S. at 538 ( [The Supreme Court] impose[s] no requirement that petit juries actually chosen must mirror the community and population. reflect the Defendants various are not distinctive entitled to groups a jury in the of any particular composition . . . . ). Finally, Bryant argues that the prosecutor used a peremptory strike in a purposefully discriminatory manner and thereby violated Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. Bryant See Appellant s Am. Sealed Br. 17 18. challenges the prosecutor s decision In particular, to strike prospective juror who, in Bryant s opinion, was Hispanic. a See id. To prevail on a Batson challenge, the defendant must first demonstrate a prima facie case 7 of purposeful discrimination. See Batson, 476 U.S. at 96. The prima facie case requires the defendant to show that the prosecutor used a peremptory strike to remove a potential juror solely on the basis of the juror s gender, ethnic Salazar, 528 origin, U.S. or 304, race, 315 United (2000), and States that v. the Martinezfacts and circumstances surrounding the peremptory strike give rise to an inference that the prosecutor acted due to the venire member s group identity. See Batson, 476 U.S. at 96; see also Powers v. Ohio, 400, 499 U.S. 402 (1991) (extending Batson to allow challenges by defendants not of the same group of the venire member excluded). Bryant contends that a female venire member, who self- identified as White on the jury questionnaire, was in fact Hispanic. the See J.A. 127, 150, 152 55. 2 prosecutor used prospective juror. a peremptory During jury selection, challenge See id. at 143. to strike this Bryant objected and argued that the prosecutor s peremptory strike violated Batson. See id. at 149 50, 152 54; Appellant s Am. Sealed Br. 17 18. The district court considered contention that Bryant s woman in challenge, including his Hispanic. The district court found that she was white and that 2 the Batson question was Citations to J.A. refer to the joint appendix. Citations to A.J.A. refer to the amended joint appendix. 8 the government s peremptory strike was neutral. 55. See J.A. 154- Initially, Bryant complains that the jury questionnaire did not have a Hispanic or Latino box to check concerning race 3 and that the district classification court s was based decision on how concerning juror s individual the the in question appeared and was therefore improperly based on a stereotype. See id. at 154 ( Your Honor, there s no such thing as a Hispanic look, especially coming from a law firm that represents a huge number of Hispanics. It runs all the color hues of skin and hair. ). Bryant also individual had Hispanic a contends that last because name, the the challenged district erroneously failed to ask the individual her race. court See id. at 152, 154. Even assuming that the challenged individual was a member of a racial or ethnic minority (e.g., a Latina), the prosecutor provided juror. the a neutral explanation for striking the prospective Specifically, when Bryant raised his Batson challenge, prosecutor question explained because she that was he a struck school the individual psychologist whom government feared might be overly sympathetic to Bryant. J.A. 153. 3 in the See This reason is a clear, specific, neutral explanation The jury survey also ethnicity. See J.A. 125 42. lacked 9 a separate question for for the peremptory strike. n.20. See Batson, 476 U.S. at 97 98 & Moreover, we have reviewed the record concerning Bryant s Batson challenge to this prospective juror. See J.A. 148-55. The district court did not err in considering and overruling Bryant s Batson objection. III. Next, Bryant raises several challenges under Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held that the Confrontation Clause of the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant examination. district had had a prior 541 U.S. at 53 54. court erroneously opportunity for cross- Bryant contends that the admitted various testimonial statements and thereby violated the Sixth Amendment. A. First, Bryant argues that the district court erred in admitting the testimony of Charlottesville Police Officer Web Stokes ( Officer Stokes ) in two respects. Officer Stokes testimony arose from an incident in which Bryant and Lorenzo Timberlake Pryor ( Timberlake ) ( Pryor ) retaliation for (another Pryor s opened drug theft fire on the dealer in Charlottesville) of 10 drugs home belonging of to Robert in Project Crud. See, e.g., A.J.A. 1255 75. Initially, Bryant contends that the district court erred when it allowed Officer Stokes to testify as to what Glenetta Smith, a government witness who lived near Pryor s house, said and did during a photo lineup that Officer Stokes house shooting. conducted while investigating the Pryor See, e.g., Appellant s Am. Sealed Br. 24 28. Officer Stokes testified that shortly after the Pryor house shooting, he prepared a photo lineup and showed it to Glenetta Smith. See A.J.A. 1343. According to Officer Stokes, Glenetta Smith identified Bryant in the lineup. See id. at 1343 44. Bryant argues that Officer Stokes testimony concerning Glenetta Smith s identification of Bryant in the photo lineup violates Crawford. See Appellant s Am. Sealed Br. 26 28. In Crawford, the Supreme Court declined to comprehensively define what constitutes Crawford, 541 U.S. at 68. a testimonial statement. See However, [w]hatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Id. stated a that [a]n accuser who makes Further, the Court formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. Id. at 51; see also Davis v. Washington, 547 U.S. 813, 822 (2006). 11 We assume, without deciding, that Officer Stokes testimony concerning Glenetta Smith s identification testimonial and violated Crawford. of Bryant was We next analyze whether the alleged Confrontation Clause error was harmless. See, e.g., United States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) ( We need not decide however, Crawford], harmless whether in light the because of we the district hold other court that any evidence erred error [under would inculpating be [the defendant]. ); United States v. Khan, 461 F.3d 477, 496 (4th Cir. 2006) ( We do not reach the question of whether [the witness s] statements were admitted in violation of the Sixth Amendment because, to the extent that any error occurred, it was harmless. ). [A] Confrontation Clause violation may be found harmless on appeal. Banks, 482 F.3d at 741 (citing Khan, 461 F.3d at 496; Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring in the judgment)). can say with An error is harmless when the reviewing court confidence that, after considering all that occurred, and without severing the erroneous action from the whole, the judgment was not substantially swayed by the error. Banks, 482 F.3d at 741 42; see Khan, 461 F.3d at 496; cf. Fed. R. Crim. P. 52(a). Here, ample evidence beyond Officer Stokes testimony concerning Glenetta Smith s identification of Bryant tied Bryant 12 to the Pryor house shooting. In particular, Timberlake provided detailed testimony to the jury about how he and Bryant fired multiple rounds into Pryor s house, including considerable details about their transit, point of attack, weapons used, and flight from the scene. complains therefore that See A.J.A. 1255 75. Timberlake unreliable, Timberlake s testimony. was the a cooperating jury was Although Bryant witness entitled to and was credit We conclude that the judgment was not substantially swayed by Officer Stokes testimony about Glenetta Smith s deciding) identification that the of district identification testimony. Bryant, court even assuming erred in (without admitting the 4 4 Unlike a typical Crawford objection where the declarant does not testify at trial, Glenetta Smith testified at trial. In fact, Glenetta Smith testified before Officer Stokes testified. During Glenetta Smith s testimony, she mentioned that she spoke with Officer Stokes shortly after the shooting, but she did not testify about her conversation with Officer Further, during her testimony, Stokes. See A.J.A. 1192. neither the government nor Bryant asked Glenetta Smith about her identification of Bryant to Officer Stokes. Cf. Fed. R. Evid. 801(d)(1)(C). Officer Stokes testified after Glenetta Smith, and his testimony included Glenetta Smith s identification of Bryant. During Bryant s case, Bryant did not recall Glenetta Smith to testify about her alleged identification of Bryant to Officer Stokes. The parties dispute whether Glenetta Smith was unavailable within the meaning of Crawford when the district court excused her following her testimony. Compare Appellant s Sealed Reply Br. 6 with Appellee s Am. Sealed Br. 44. The parties also dispute whether Bryant (through counsel) withdrew his Crawford objection to Officer Stokes identification (Continued) 13 Next, Bryant argues that the district court erroneously allowed Officer Stokes to testify about what Glenetta Smith told him she saw on the night of the Pryor house shooting. Appellant s Am. Sealed Br. 26 28. See Officer Stokes testified that Glenetta Smith told him that she had seen two black males, one of which was shorter and stocky and very dark-skinned, and then another one who was taller, probably over six feet, and more slender and light-skinned. See A.J.A. 1337. Bryant contends that Officer Stokes s testimony concerning what Glenetta Smith said violates Crawford. Again, assuming See Appellant s Am. Sealed Br. 26 28. (without deciding) that Officer Stokes testimony constitutes Crawford error, we conclude that it was harmless. Notably, before Officer Stokes testified, Glenetta Smith testified that she heard a long, loud sound like someone was beating on a trash can. See A.J.A. 1190. She then looked out of her window and saw a tall, light-skinned black male and a shorter, dark-skinned black male running away from Pryor s house towards Forest Hill Park. See id. at 1191 92. Bryant (through counsel) then cross examined Glenetta Smith about what she heard testimony and thereby waived (except for plain error) his right to object. Cf. A.J.A. 1344 ( I withdraw that objection because I m going to be crossing [Officer Stokes] about [the identification]. ). Because we conclude that any error in admitting Officer Stokes contested identification testimony was harmless, we need not decide either of these issues. 14 and saw that evening. Id. at 1192 93. Officer Stokes s testimony concerning what Glenetta Smith said to him essentially duplicated Glenetta Smith s testimony. Smith s testimony, substantially we swayed conclude by that Officer In light of Glenetta the Stokes judgment testimony was not concerning what Glenetta Smith said to him. B. Next, admitting hearsay Bryant two argues documents objections: a that into the district evidence record of a over gun court his erred Crawford transaction and in and a declaration of non-records from the Internal Revenue Service. See Appellant s Am. Sealed Br. 28. First, Bryant contends that the district court erred when it admitted an ATF Form 4473 from a gun shop connected with the purchase of a .454 pistol. See id. The dispute concerns Bryant s connection to a .454 pistol. Everette Smith (a convicted felon and drug dealer in Charlottesville) testified that he convinced Sam Jones ( Jones ) (a man with no prior felony convictions) to purchase a .454 pistol for Everette Smith. See A.J.A. 1203-07, 1212 14. Everette Smith explained that, in exchange for Jones purchasing the weapon, he paid Jones $200 worth of crack cocaine. 1206. to the Id. at Everette Smith also testified that he accompanied Jones gun shop in approximately 15 November 2003 when Jones completed the paperwork to purchase the weapon and paid for the weapon. Id. at 1206-07. Everette Smith also accompanied Jones when they returned to the shop to pick up the weapon. 1207. Id. at Everette Smith testified that he later sold the .454 pistol to Bryant for two pounds of marijuana. 14. See id. at 1212 Bryant (through counsel) cross examined Everette Smith. Id. at 1222-36. To Sam Jones did not testify. corroborate Everette Smith s testimony about Jones purchasing the weapon for Smith and to help rebut the defense contention that Smith was fabricating the story about obtaining the weapon from Jones and later selling it to Bryant, the government introduced Jones application to purchase the .454 pistol as a business record from the gun shop. 88. See id. at 1482 The application is an ATF Form 4473 that Jones completed before purchasing the weapon. See id. at 1488. The government introduced the ATF Form 4473 through ATF Agent John Stoltz, who testified that he received the ATF Form 4473 from the president of the gun shop. proof, Agent shop s president Id. at 1482-83. Stoltz also provided consistent with 16 As part of the government s an affidavit Federal Rule from of the gun Evidence 902(11). 5 See id. at 1483 84. Bryant objected at trial to the ATF Form 4473, and argues on appeal, that this document violates Crawford and Federal Rules of Evidence 802 and 805. See id.; Appellant s Am. Sealed Br. 28. As for the Crawford objection, the ATF Form 4473 contains Sam Jones application to purchase a firearm. 5 A.J.A. 1487 88. Rule 902(11) provides: Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. Fed. R. Evid. 902(11). 17 Agent Stoltz explained that an ATF Form 4473 is a firearms transaction form that is filled out at the time of purchase by all people who wish to purchase firearms. It basically lists the person s name, address, and has various questions that need to be filled out [by and regarding the purchaser] at the time of purchase. Id. at 1488. purchaser. See id. Even if we The form identifies Sam Jones as the assume that the Form 4473 was testimonial hearsay with respect to Bryant, Everette Smith testified that he accompanied Jones to buy the weapon, watched Jones complete paperwork to buy the weapon, went with Jones to pick up the weapon at the gun shop, and later sold the weapon to Bryant. See A.J.A. 1203 07, 1212 14. Regardless of the ATF Form 4473 and regardless of the person from whom Everette Smith got the weapon, Smith s testimony tied Bryant to the weapon. Moreover, Bryant had full and fair opportunity to cross examine Everette Smith. See id. at 1222-36. Accordingly, even if admitting the Form 4473 was Crawford error, the error was harmless. See, e.g., Banks, 482 F.3d at 741 42; Khan, 461 F.3d at 496; cf. Fed. R. Crim. P. 52(a). Bryant also argues that admitting the Form 4473 violates Federal Rules of Evidence multiple levels of hearsay. see also A.J.A. 1483. 802 and 805 because it contains See Appellant s Am. Sealed Br. 28; The government responds that the Form 18 4473 is an admissible business record. See Appellee s Am. Br. 40 41; Fed. R. Evid. 803(6). Even were erroneously we admitted to conclude the Form that 4473, the the district error was court harmless. Ample evidence beyond the Form 4473 tied Bryant to the .454 pistol. That evidence included Everette Smith s testimony that he sold the .454 pistol to Bryant in exchange for marijuana. Next, Bryant contends that the district court erred in admitting a certification of nonexistence of records ( CNR ) from the Internal Revenue Service ( IRS ) indicating that he had not paid income taxes during times relevant to the indictment, and thus inviting the jury to draw the inference that Bryant derived his income and various assets from selling drugs. Appellant s Am. Sealed Br. 28. Bryant argues that CNRs are the very essence of testimonial evidence. The district court See considered Crawford challenge to the IRS CNR. Id. and rejected Bryant s See United States v. Bryant, No. 3:04-CR-47, 2006 WL 1700107, at *1 *4 (W.D. Va. June 15, 2006) (unpublished). In rejecting the Crawford argument, the district court relied on cases from the Fifth and Ninth Circuits analyzing CNRs from Immigration and Customs Enforcement ( ICE ). See id. at *2 (citing United States v. Cervantes-Flores, 421 F.3d 825, 830 34 (9th Cir. 2005) (per curiam); United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (per curiam)). 19 Since the district court s decision, other circuit courts have concluded that ICE CNRs are nontestimonial. See United States v. Burgos, 539 F.3d 641, 644 45 (7th Cir. 2008) ( The reported cases from the other circuits that have considered the question are unanimous in holding that an alien's warrant of deportation and CNR are nontestimonial business records not subject to the requirements of the Confrontation Clause under Crawford. ); accord United States v. Mendoza-Orellana, 133 F. App x 68, 70 (4th Cir. 2005) (per curiam) (unpublished) (finding that ICE CNR admitted as self-authenticating public record was not testimonial under Crawford). In opposition to the analysis concerning ICE CNRs, Bryant notes that this case Sealed Reply Br. 8. involves an IRS CNR. See Appellant s Bryant then argues that an IRS CNR is more likely to be inaccurate because the IRS (unlike ICE) is a huge organization responsible for keeping records on all taxpayers in America. See id. Initially, we question the premise that the IRS is more likely to commit record-keeping errors than ICE. nothing in the record supports this Certainly, conclusion. More importantly, whether the IRS is more likely to commit recordkeeping errors than ICE does not illuminate whether an IRS CNR or an ICE CNR is testimonial under Crawford. U.S. at 56 (noting that some examples 20 of Cf. Crawford, 541 hearsay by their nature were not testimonial for example, business records ). As to that issue, we conclude that the IRS CNR is not testimonial under Crawford. See, e.g., Burgos, 539 F.3d at 644-45; Cervantes-Flores, 421 F.3d at 830 34; Rueda-Rivera, 396 F.3d at 680; see also Udeozor, 515 F.3d at 268 70. Alternatively, even if we assume that the district court erroneously harmless. Bryant s admitted The the IRS government lavish CNR, presented lifestyle and at unexplained *3 *4 wealth, Cadillac Escalade). (recounting including alleged of error was evidence considerable absence history, even without the IRS CNR. 1700107, the of legitimate work See, e.g., Bryant, 2006 WL the $20,000 evidence in cash of found Bryant s in his In sum, we reject Bryant s Crawford and hearsay arguments. 6 IV. Finally, convicted we Bryant address on one eight housekeeping counts, matter. including both The jury a drug conspiracy in violation of 21 U.S.C. § 846 (i.e., count 1), and of engaging in a continuing criminal enterprise in violation of 6 Bryant (through counsel and in his pro se brief) raised numerous other arguments. We have carefully examined all of these arguments. The arguments lack merit and do not warrant further discussion. 21 21 U.S.C. § 848(a) and (b) (i.e., count 2). 7 The district court sentenced Bryant to life in prison for the continuing criminal enterprise conviction, but did not impose a sentence for the section 846 conviction. In failing to See J.A. 419. impose a sentence on the section conviction, the district court acted properly. United States, 432 U.S. 137 (1977) 846 In Jeffers v. (plurality opinion), a plurality of the Supreme Court held that imposing sentence on both a 21 U.S.C. § 846 conspiracy count and a 21 U.S.C. § 848 continuing because criminal Congress enterprise did not section 846 and section 848. ( CCE ) intend count cumulative was improper, penalties under See 432 U.S. at 156 ( Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control 7 Bryant was convicted of (1) conspiracy to distribute or possess with intent to distribute 50 grams or more of cocaine base, 5 kilograms or more of powder cocaine, and marijuana (21 U.S.C. §§ 846, 841(a)(1), 859, 860, and 861); (2) engaging in a continuing criminal enterprise (21 U.S.C. § 848 (a) and (b)); (3) conspiracy to conduct and participate in a racketeer influenced and corrupt organization (RICO) (18 U.S.C. § 1962(d)); (4) possession with intent to distribute marijuana (21 U.S.C. § 841 (a)(1)); (5) possession of a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)); (6) attempted murder, violent crime in aid of racketeering activity (18 U.S.C. §§ 2 and 1959(a)(5)); and (7) two counts of threat to murder, violent crime in aid of racketeering activity (18 U.S.C. §§ 2 and 1959(a)(4)). See J.A. 417-18. 22 Act of 1970. ); see also Rutledge v. United States, 517 U.S. 292, 300 (1996) ( For the reasons set forth in Jeffers, . . . we hold that this element of the CCE offense requires proof of a conspiracy that would also violate § 846. Because § 846 does not require proof of any fact that is not also a part of the CCE offense, . . . conspiracy as defined in § 846 does not define a different offense from the CCE offense defined in § 848. ). have applied Jeffers to require that, where a defendant We is convicted of both a section 846 count and a section 848 count, See, e.g., United the section 846 conviction must be vacated. States v. Heater, 63 F.3d 311, 318 (4th Cir. 1995); United States v. Porter, 821 F.2d 968, 978 (4th Cir. 1987) ( Congress did not intend that an individual be punished under both § 846 . . . and § 848 . . . . ). In this case, Heater applies. Thus, as in Heater, [w]e need only take the next step and instruct the district court to vacate the conspiracy conviction itself. 63 F.3d at 318. V. For the reasons explained convictions and sentence. above, we affirm Bryant s Because we affirm Bryant s 21 U.S.C. § 848 conviction, we remand this action with instructions for 23 the district conviction. court to vacate Bryant s 21 U.S.C. § 846 We affirm the balance of the judgment. AFFIRMED AND REMANDED WITH INSTRUCTIONS 24

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