United States v. Daniels

Opinion

Rehearing granted, June 19, 2009 for the limited purpose of filing corrected opinion

CORRECTED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4770

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAL DANIELS,

Defendant - Appellant.

No. 07-4771

No. 07-4777

v. JERMAL DANIELS,

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-cr-00103-RJC-2; 3:05-cr-00265; 3:06-cr-00082)

Argued: October 30, 2008 Decided: April 21, 2009

Corrected Opinion Filed: June 19, 2009

Before GREGORY and DUNCAN, Circuit Judges, and Richard D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.

Affirmed in part, vacated in part, and judgment withheld in part by unpublished opinion. Judge Bennett wrote the opinion, in which Judge Gregory joined. Judge Duncan wrote a dissenting opinion.

ARGUED: Kevin Andre Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Ross Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 BENNETT, District Judge:

Defendant Jermal Daniels (“Daniels”) appeals his

convictions and sentences for several offenses, including

conspiracy to possess with intent to distribute one kilogram or

more of heroin and 500 grams or more of cocaine, in violation of

21 U.S.C. §§ 841 and 846. In this appeal, Daniels raises three

issues. First, Daniels argues that his arrest was not supported

by probable cause and that the trial court erred in refusing to

suppress evidence obtained as a result of the search of his

person, the use of a key in the lock of an apartment where he

resided, and the issuance of a search warrant for that same

location. In addition, Daniels appeals his sentence for the

convictions, contending that the trial court improperly applied

offense level enhancements based on a finding that Daniels held

a leadership role in the conspiracy and that he had obstructed

justice. Finally, Daniels contends that the district court

erred by failing to instruct the jury to find the amounts of

drugs individually attributable to him under the conspiracy

charge, in violation of United States v. Collins, 415 F.3d 304

(4th Cir. 2005). Because of this error, Daniels contends that

his mandatory life sentence for the conspiracy charge cannot

stand because a proper instruction would have permitted the jury

to find a reduced drug quantity attributable to him, leading to

a reduced statutory sentence under 21 U.S.C. § 841(b). We

3 affirm the district court’s rulings on the suppression motions

and the sentence enhancements. However, as to Daniels’

challenge of the jury instructions, we find reversible Collins

error and withhold judgment on the conspiracy charge for thirty

days. The Government may choose between remand for resentencing

under the default penalty provision in § 841(b)(1)(B) (providing

for a sentence of ten years to life in prison), or remand for a

new trial.

I.

On March 3, 2005, officers of the Charlotte Mecklenburg

Police Department arrested one of their informants, Adreian

Jackson, for selling drugs to another informant. (J.A. 125,

559.) Jackson was on pretrial release following his indictment

in August of 2004 on charges of conspiracy to distribute illegal

drugs. (J.A. 121, 554.) Officers learned in early 2005 that

Jackson was trafficking in heroin and cocaine in violation of

the conditions of his release and they conducted three

controlled buys from Jackson, leading to his March 3rd arrest.

(J.A. 125, 159-60, 295, 558, 591, 708-10, 713, 717.)

After agreeing to cooperate with the police, Jackson

arranged to meet with Daniels, who was one of his suppliers, in

the parking lot of a Bi-Lo grocery store on Albemarle Road in

Charlotte, North Carolina. The police officers waited in the

4 grocery store parking lot and Jackson identified Daniels when he

appeared in a burgundy Chevrolet Impala. (J.A. 168, 731.)

Jackson also identified co-defendant Corey Edwards, who arrived

separately in a red Ford Expedition. (J.A. 167-68.) Once

Edwards entered the passenger’s side of the Impala, the officers

initiated a “take down” and arrested both defendants. (J.A.

168, 731.) Incident to the arrest, police searched Daniels’

person and found four bundles, each containing ten bags, of

heroin in his underwear. (J.A. 132, 734.) During their search

of the Impala, police found two cell phones and approximately

$2,200 in cash. (J.A. 740.)

After Daniels’ arrest, Jackson rode with Detective Jimmy

Messer to a nearby apartment complex, where Jackson identified

cars within the complex as belonging to Daniels and his

girlfriend, Toria Douglas. (J.A. 304.) After running the

license plate on his girlfriend’s car, the police pinpointed the

address of 1305 Kelston Place, Apartment 106 as a residence of

Daniels. (J.A. 317.) The police maintained surveillance on

the apartment until an officer arrived with a key the police had

seized from Daniels during his arrest. (J.A. 135-36.) Officers

inserted and turned the key to confirm it unlocked the door to

Apartment 106. (J.A. 135-36.)

After Daniels denied consent to search the apartment,

Detectives Arthur Robson and Chris Kimbell applied for a search

5 warrant. (J.A. 58-61.) In their supporting affidavit, the

officers asserted that a confidential and reliable informant

pointed out the car as the vehicle owned and driven by Daniels.

In addition, the application averred, inter alia, that Daniels

possessed a key that unlocked the door to Apartment 106 of 1305

Kelston Place. (J.A. 58-61.) Officers later searched Apartment

106 and seized several baggies of heroin and powder cocaine,

equipment used for packaging drugs, cash totaling $63,060, six

firearms, a bulletproof vest, and different types of ammunition.

(J.A. 755-64, 816, 825.)

Prior to trial, Daniels filed two Motions to Suppress,

arguing that the court should not admit evidence and statements

that were derived from the officers’ strip search of his person,

the unauthorized use of the key in the door of Apartment 106 of

1305 Kelston Place, and the subsequent search of that location

pursuant to a warrant that was false and misleading. (J.A. 40,

234.) The district court held two suppression hearings to

consider these arguments and denied both Motions to Suppress.

Defendant Daniels was one of eight defendants charged in a

thirteen-count Third Superseding Indictment filed on May 25,

2006 in the United States District Court for the Western

District of North Carolina. Count One charged Daniels with

conspiracy to possess with intent to distribute one kilogram or

more of heroin and 500 grams or more of cocaine in violation of

6 21 U.S.C. §§ 846 and 841(b)(1)(A). Count Five charged Daniels

with possession with intent to distribute heroin and aiding and

abetting in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)

and 18 U.S.C. § 2. Count Six charged Daniels with possession

with intent to distribute 500 grams or more of cocaine and

aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B) and 18 U.S.C. § 2. Count Seven alleged possession

of a firearm during and in relation to a drug trafficking crime

in violation of 18 U.S.C. § 924(c). Count Eight alleged

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g). Count Thirteen alleged intimidating and

threatening a witness in violation of 18 U.S.C. § 1512(b).

(J.A. 371-77.)

On June 13, 2006, the jury returned its verdict convicting

Daniels on all counts. With respect to Count One, the jury

found that one kilogram or more of heroin was “reasonably

foreseeable to [Defendant]” and that 500 grams or more of

cocaine was “reasonably foreseeable to [Defendant].” (J.A.

1809.) A Presentence Investigation Report (“PSR”) was prepared.

As to Counts One, Five, and Six, the PSR recommended a four

level enhancement to his base offense level pursuant to U.S.S.G.

§ 3B1.1(a), for Daniels’ role as a leader. (J.A. 1886.) The

PSR also recommended an additional increase of two levels

pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. (J.A.

7 1886.) As to Count Thirteen, the PSR recommended an increase of

eight levels, pursuant to U.S.S.G. § 2J1.21(b)(1)(A), because

the offense included threatening a witness and causing the

witness to recant statements made to law enforcement. (J.A.

1887.)

At the sentencing hearing, Daniels objected to the

enhancements for obstruction of justice and leadership role, and

objected to the statutory sentencing range of mandatory life

imprisonment based upon threshold drug quantity, arguing that

the drug amounts found by the jury could not be used because the

jurors were improperly instructed regarding drug amounts. (J.A.

1778-88, 1829-32.) The court overruled Daniels’ objections

regarding the drug amounts found by the jury and the guideline

enhancements for leadership role and obstruction of justice.

(J.A. 1829-32, 1842, 1846.) The court imposed a life sentence

on Count One to be served consecutively with a term of 60 months

on Count 7 and concurrently with terms of 360 months for Counts

5 and 6 and terms of 120 months for Counts 8 and 13. (J.A.

1853-54.) This appeal followed.

II.

Daniels contends that his March 3, 2005 arrest was not

based on probable cause. In addition, he argues that the

district court erred in denying his Motions to Suppress, which

8 challenged the admissibility of evidence obtained as a result of

the search of his person, the use of his key in the lock of

Apartment 106 at 1305 Kelston Place, and the affidavit

supporting the search warrant for that same location.

In considering Daniels’ claims and the district court’s

denial of his Motions to Suppress, this Court reviews legal

determinations de novo and factual findings for clear error.

See United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997).

A.

Daniels contends that the police did not have probable

cause to arrest him in the parking lot of the Bi-Lo grocery

store on Albemarle Road on the evening of March 3, 2005, and

that the evidence obtained as a result should have been

excluded. 1

We have explained that “[a]n officer has probable cause for

arrest when, at the time the arrest occurs, the facts and

circumstances within the officer’s knowledge would warrant the

belief of a prudent person that the arrestee had committed or

was committing an offense.” United States v. Manbeck, 744 F.2d

360, 376 (4th Cir. 1984) (citing Beck v. Ohio, 379 U.S. 89, 91

(1964)). The Supreme Court has held that the probable cause

determination is made through consideration of “the totality of

1 Daniels raised this argument in his pro-se supplemental brief filed with our permission. 9 the circumstances.” Illinois v. Gates, 462 U.S. 213 (1983). In

addition, the Court has noted that “even in making a warrantless

arrest an officer ‘may rely upon information received through an

informant, rather than upon his direct observations, so long as

the informant’s statement is reasonably corroborated by other

matters within the officer’s knowledge.’” Id. at 242 (quoting

Jones v. United States, 362 U.S. 257, 269 (1960)).

An objective review of “totality of the circumstances”

supports the conclusion that there was sufficient probable cause

for Daniels’ arrest. The police officers planned their take-

down on the basis of information provided by their informant,

Jackson, who had arranged to meet with Daniels to perform a drug

deal in the parking lot of the Bi-Lo grocery store. While the

officers were waiting, they witnessed a red Ford Expedition pull

into the parking lot and they noticed that the driver was

looking around and not getting out of his vehicle. Detectives

Kimbell and Robson stated that these circumstances were

suspicious because they knew from training and experience that

suppliers sometimes conduct more than one transaction in the

same location. (J.A. 130, 169.) Upon Daniels’ arrival in the

parking lot, police noted that the appearance of Daniels and his

burgundy Impala corroborated the description that Jackson had

earlier provided. In addition, Jackson had identified both

Daniels and Edwards, who the police had already suspected of

10 engaging in illegal drug trafficking. Once Edwards had entered

the passenger side of Daniels’ Impala, the officers had

determined that there was sufficient probable cause to initiate

the take-down. In view of this sequence of events, as exhibited

in the record, we conclude that “the facts and circumstances

within the officers’ knowledge” supported their belief that

Daniels was committing an offense and that probable cause

existed for his arrest. See Manbeck, 744 F.2d at 376.

B.

Next, Daniels contends that the district court erred in

refusing to suppress the four bundles of heroin obtained by the

arresting officers’ unconstitutional strip search of his person.

Upon arrest an officer may search the person of the

arrestee and the area within the arrestee’s immediate control.

Illinois v. Lafayette, 462 U.S. 640, 644 (1983). However, such

searches must be reasonable under the Fourth Amendment. In Bell

v. Wolfish, 441 U.S. 520, 559 (1979), the Supreme Court

prescribed an analytical framework for assessing the

reasonableness of a search that balances the need for the search

against any invasion of personal rights that may result. The

inquiry involves a contextual weighing of the totality of the

circumstances, including “the scope of the particular intrusion,

the manner in which it is conducted, the justification for

initiating it, and the place in which it is conducted.” Id.

11 At the suppression hearing Detective Kimbell testified that

he physically pulled the waistband of defendant’s sweatpants

outward approximately three inches and looked straight down into

his underwear with a flashlight and that he did so without

exposing Daniels to the public. (J.A. 151.) Detective Robson

testified that he observed Det. Kimbell “when he was pulling out

Daniels’ pants, and looking down into the crotch area” and added

that Det. Kimbell “pulled [Mr. Daniels’ pants] down, lifted them

in front, looked down and found the heroin under his scrotum

area.” (J.A. 181-82 (emphasis added).) Robson’s testimony

suggests the possibility that Daniels’ genital area may have

been momentarily exposed. However, even assuming that this

occurred, there is no proof that Daniels was exposed to anyone

other than Det. Kimbell. The search occurred at night and away

from Albemarle Road and a phalanx of male officers surrounded

Daniels as he was being searched. These facts indicate that

whatever intrusion occurred was limited in scope.

Moreover, employing the totality of the circumstances test

established in Bell, we find that the slight risk that Daniels

was exposed to the public was far outweighed by various factors

supporting the reasonableness and justification for the search.

Daniels was arrested and searched at the culmination of a

planned take-down for drug distribution--an offense that is

commonly associated with the possession of weapons and illegal

12 drugs. See Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)

(noting the significance, under the Bell inquiry, of whether the

relevant offense was “commonly associated by its very nature

with the possession of weapons or contraband.”). As a result,

the arresting officers’ search was justified not only by their

suspicion that Daniels was concealing contraband, but also

because Daniels presented a legitimate danger to their personal

security. The police initiated the arrest only after Daniels

and Corey Edwards had been identified and after much of the

information concerning the planned drug transaction provided by

the informant Jackson had been corroborated. During their

search of Daniels’ person, the officers first searched the outer

pockets of Daniels’ clothes. When they initially did not find

any weapons or drugs, they then proceeded to look in his

underwear, where they found four bundles of heroin. (J.A. 149-

50.) Also incident to the arrest, the police searched Daniels’

Impala, where they found approximately $2,200 in cash and two

cell phones. (J.A. 132, 170.)

In United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997)

the defendant objected to what he called “an unconstitutional

strip search” conducted incident to arrest when his pants were

removed inside of a police van. We concluded that the police

officers acted reasonably under the circumstances in attempting

to find missing money and that the defendant “was not subjected

13 to an unnecessarily intrusive search.” Id. at 256. The facts

in Dorlouis are sufficiently analogous to the facts in this

case, and after weighing all of the circumstances, we affirm the

district court’s ruling. The search of Daniels’ underwear was

not gratuitous in light of the officer’s reasonable suspicion

that illegal contraband was concealed in his pants. There is no

clear showing that Daniels was exposed to the public and we find

that the police officers acted reasonably under the

circumstances. 2

C.

Among the items seized from Daniels on the night of March

3, 2005, was a key which the officers had reason to believe

could access Apartment 106 of 1305 Kelston Place. (J.A. 749.)

While Daniels originally consented to the detectives’ use of the

key to access the residence, he ultimately revoked his consent.

(J.A. 173, 749.) Later the officers inserted the key into the

door lock of Apartment 106, which was accessible to the public.

The officers turned the key to confirm that it operated the lock

2 In support of his argument, Daniels cites Amaechi v. West, 237 F.3d 356, 365 (4th Cir. 2001) where we found a strip search to be “unconstitutionally unreasonable.” But the Amaechi case is easily distinguishable in several respects, as it involved a female victim who was subjected to the “public exposure, touching, and penetration of her genitalia and kneading of her buttocks during a search incident to arrest for a misdemeanor noise violation . . . where no security risk or threat of the concealment or destruction of evidence was present.” Id. at 362. 14 but did not enter the apartment. (J.A. 136.) Daniels argues

that the detectives’ conduct in inserting the key into the lock

constituted an unreasonable warrantless search in violation of

his Fourth Amendment rights.

Our sister circuits are not in accord on whether a

defendant has a reasonable expectation of privacy in an external

door lock accessible from a public space. The First and Sixth

Circuits have ruled that there is no reasonable expectation of

privacy in such a lock and that the insertion and turning of a

key therein does not constitute a search. See United States v.

Salgado, 250 F.3d 438, 456-57 (6th Cir. 2001); United States v.

Lyons, 898 F.2d 210, 213 (1st Cir. 1990). The Seventh Circuit,

on the other hand, has concluded that there is a reasonable

expectation of privacy in a keyhole because a keyhole contains

information that is not readily accessible to strangers. United

States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991).

We need not rule on the precise issue of whether the

officers’ insertion and turning of a key into the door lock of

Apartment 106 contravened the Fourth Amendment, because even if

we assume that it was a search, it was not unreasonable. The

officers’ action was a means of identifying the apartment as one

to which the defendant had access. The officers employed a

legitimate crime investigative procedure that far outweighed

whatever minimal intrusion that Daniels may have experienced.

15 In this respect, the act is similar to the use of a narcotic

detection dog to “sniff” personal luggage--a non-intrusive

procedure that has been deemed constitutional. United States v.

Place, 462 U.S. 696, 706-07 (1983). Indeed, we are aware of no

precedent that has determined such conduct to be unreasonable,

for as the Seventh Circuit observed in Concepcion, “the privacy

interest [in a keyhole] is so small that the officers do not

need probable cause to inspect it.” Id. at 1173. We therefore

affirm the district court’s finding that Daniels’ Fourth

Amendment rights were not infringed by the officers’ use of a

key in the door lock of Apartment 106.

D.

Daniels next argues that the district court erred in

refusing to suppress evidence obtained from the execution of a

search warrant for Apartment 106 of 1305 Kelston Place. Daniels

claims that the government’s affidavit supporting the search

warrant omitted material information relating to the reliability

of the confidential informant, Adrein Jackson. Specifically,

the affidavit failed to mention that Jackson had been found

engaging in drug trafficking activity on three occasions in the

days prior to, and including, the day the search warrant was

sought. In addition, it failed to mention that Jackson had

attempted to flee from law enforcement on the day of his arrest

in March of 2005. Daniels contends that because of these

16 omissions, the supporting affidavit was constitutionally

insufficient and that the evidence obtained from the seizure

must be excluded under the “fruit of the poisonous tree

doctrine.” Wong Sun v. United States, 371 U.S. 471, 484 (1963).

The Fourth Amendment states that “no warrants shall issue,

but upon probable cause supported by oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend IV. Even

upon de novo review, “the determination of probable cause by the

issuing magistrate is entitled to great deference” from the

reviewing court. United States v. Hodge, 354 F.3d 305, 309 (4th

Cir. 2004). Indeed, “the duty of a reviewing court is simply to

ensure that the magistrate had a substantial basis for

concluding that probable cause existed.” Illinois v. Gates, 462

U.S. 213, 238-39 (1983) (alterations and internal quotation

marks omitted). There is a “strong ‘presumption of validity

with respect to the affidavit supporting the search warrant.’”

United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)

(quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)).

By alleging that the supporting affidavit contained

deliberately false statements or omissions, Daniels is

referencing the exception established in Franks v. Delaware, 438

U.S. 154 (1978) allowing a defendant, “in certain narrowly

defined circumstances . . . [to] attack a facially sufficient

17 affidavit.” Colkley, 899 F.2d at 300. In Franks, the Supreme

Court created a rule of “limited scope” which allows for a

Defendant to obtain a hearing in order to challenge a facially

sufficient affidavit after making a preliminary showing that

“(1) the affidavit in support of the search warrant contained

statements or omissions that were deliberately false or

demonstrated a reckless disregard for the truth, and (2) that

the challenged statements or omissions were essential to the

magistrate judge’s finding of probable cause.” 438 U.S. at 155-

56. If a Franks hearing is granted and the affiant’s material

falsity or recklessness is found by a preponderance of the

evidence, the warrant must be voided and the evidence procured

must be excluded. Id. at 156.

Daniels has not made the prerequisite showing of intent or

recklessness. In Colkley, we emphasized that to establish

“intent,” a defendant cannot merely claim that information was

knowingly or negligently omitted from an affidavit. 899 F.2d at

300-01. Instead, the omissions must be revealed as “designed to

mislead, or . . . made in reckless disregard of whether they

would mislead, the magistrate.” Id. at 301 (emphasis in

original). In this case, Daniels has not demonstrated that the

affiants, Detectives Robson and Kimbell, had any intent to

mislead. Nor will we infer any intent or recklessness from the

18 mere fact of the omission. See id. (refusing to infer bad

motive under Franks based upon the fact of an omission alone).

Furthermore, even if Daniels had satisfied the first prong

by showing intent, his pursuit of a Franks hearing would have

floundered for failure to prove the materiality of the omitted

information. To be material, an omission “must do more than

potentially affect the probable cause determination: it must be

‘necessary to the finding of probable cause.’” Colkley, 899

F.2d at 301 (quoting Franks, 483 U.S. at 156). Therefore, we

must determine whether if the information relating to Jackson’s

arrests had been included in the affidavit, sufficient probable

cause would have still existed under the “totality of the

circumstances” test established in Illinois v. Gates, 462 U.S.

213 (1983).

Despite the fact of Jackson’s ongoing drug trafficking, in

October of 2004, he had provided police with reliable

information about the drug conspiracy involved in the case,

including information implicating Daniels that was ultimately

corroborated. In addition, all of the information he gave to

detectives on March 3, 2005, that could be corroborated was

corroborated, including the arrival of Defendant at the location

of the drug deal in a vehicle matching the description he had

earlier offered. See United States v. Lalor, 996 F.2d 1578,

1581 (4th Cir. 1993) (“[a]n important factor in determining

19 whether an informant’s report establishes probable cause is the

degree to which it is corroborated.”). Moreover, additional

information in the affidavit lent further support for probable

cause. The detectives noted that they had linked Apartment 106

to Toria Douglas, who was identified through birth records as

the mother of Daniels’ baby girl, Semira Douglas, born on August

17, 2004. The detectives also stated in the affidavit that a

key seized from Daniels had unlocked the door lock of Apartment

106. Taken as a whole, the information in the affidavit was

substantial and detailed and provided a “substantial basis” for

probable cause. As the district court observed, “[Jackson was]

a bad actor providing reliable information.” (J.A. 341.)

Therefore, while the omitted reference to Jackson’s illegal

conduct did relate to his reliability, it was not material in

the Franks context--it would not have changed or altered the

magistrate’s finding. See United States v. Miller, 925 F.2d

695, 699-700 (4th Cir. 1991) (reliability of informant’s

information may be inferred from factual circumstances, even if

affidavit otherwise fails to assert informant’s reliability).

Viewing the circumstances as a whole and according the

state judge appropriate deference, we affirm the district court

ruling on the search warrant application. In doing so, we are

mindful of the stringent standard that must be met to convene a

20 Franks hearing and find that Daniels failed to make the

prerequisite “intent” or “materiality” showings.

III.

Daniels contends that his Fifth and Sixth Amendment rights

were violated by the district court’s offense level

enhancements. The district court applied a four-level

enhancement based on defendant’s role as leader of the

conspiracy and a two-level enhancement based on a finding that

Daniels obstructed or attempted to obstruct the administration

of justice. We review factual findings made by a district court

at sentencing for clear error. See, e.g., United States v.

Stewart, 256 F.3d 231, 253 (4th Cir. 2001).

United States Sentencing Guideline § 3B1.1(a) directs the

sentencing court to increase a defendant’s offense level by four

if “the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was

otherwise extensive.”

The district court observed that Daniels exercised a

leadership role in a criminal activity that involved five or

more participants or was otherwise extensive. (J.A. 1842-43.)

This activity included, among other things, Daniels’ recruitment

of accomplices such as Charles McCombs as an enforcer. Daniels

21 made trips to New York to obtain drugs from a source and he

distributed these drugs through Adrian Jackson, William Boyd,

Corey Edwards and others in the vicinity of Beatties Ford Road

in Charlotte. Although Daniels claims that Raheem Williams was

not a part of the conspiracy, the testimony of other witnesses

supported his inclusion. Finally, Daniels’ girlfriend, Toria

Douglas, worked under his supervision and control by packaging

drugs and purchasing firearms. Because the record is replete

with evidence that Daniels played a leadership role in an

extensive conspiracy, the district court did not clearly err in

applying the four-level enhancement under § 3B1.1(a).

Section 3C1.1 of the Sentencing Guidelines directs the

sentencing court to apply a two-level enhancement to a

defendant’s offense level where defendant “willfully obstructed

or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of the

conviction” and the obstructive conduct related to the

defendant’s offense of conviction and any relevant conduct or a

closely related offense. U.S.S.G. § 3C1.1. The Commentary to §

3C1.1 states that the enhancement should apply to conduct that

includes, but is not limited to: “(a) threatening, intimidating,

or otherwise unlawfully influencing a codefendant, witness or

22 juror, directly or indirectly, or attempting to do so; (b)

committing, suborning; or attempting to suborn perjury . . . ;

(c) producing or attempting to produce a false, altered, or

counterfeit document or record during an official investigation

or judicial proceedings . . . .”

The district court found that Daniels forced William Boyd

to write a letter recanting his earlier statements to law

enforcement implicating Daniels and Toria Douglas in the

distribution of cocaine and heroin. During trial, Boyd

testified that Daniels did not verbally threaten to harm him if

he refused to write the letter. However, Boyd explained that he

was sitting in the recreation yard of the jail when Daniels

stood over him and demanded that Boyd write the letter. Boyd

stated that he was intimidated by Daniels’ physical presence and

that he felt that he had no choice other than to comply. Based

upon this information in the record, the jury found beyond a

reasonable doubt that Defendant had intimidated Boyd through

this conduct. We likewise conclude that the district court did

not err in applying the two-level enhancement under § 3C1.1.

IV.

In Count One of the Superseding Indictment, Daniels was

charged with conspiracy to possess with intent to distribute

heroin and cocaine in violation of 21 U.S.C. §§ 841(a) and 846.

23 In its jury instructions, the district court outlined the

elements required to convict Daniels under the conspiracy charge

as well as under the substantive allegations of possession with

intent to distribute contained in Counts Five and Six. (J.A.

1708-1731.) However, the court failed to deliver a supplemental

instruction relating to the penalty subsection of 21 U.S.C. §

841(b) regarding the drug amount attributable to individual

defendants in the alleged conspiracy. Subsection 841(b)

presents a graduated penalty scheme establishing three different

sets of statutory minimum and maximum sentences for drug

distribution offenses based upon drug quantity. See §

841(b)(1)(A), (B), (C).

Daniels contends that the district court erred in failing

to expressly instruct the jury that it needed to make a finding

as to the drug quantity specifically applicable to him in

accordance with Pinkerton v. United States, 328 U.S. 640 (1946).

He notes Fourth Circuit precedent holding that such an error

infringes a defendant’s Sixth Amendment right to trial by jury.

See United States v. Collins, 415 F.3d 304, 313-14 (4th Cir.

2005) (vacating defendant’s sentence and remanding because of

district court’s failure to properly instruct jury on how to

determine drug amounts); United States v. Ferguson, 245 Fed.

Appx. 233, 237 (4th Cir. 2007) (same); United States v. Irvin, 2

F.3d 72, 78 (4th Cir. 1993) (mandating that sentencing court

24 consider the quantity of narcotics attributable to each co-

conspirator by relying on the principles set forth in

Pinkerton).

The Government contends that when considered together, the

district court’s jury instructions and the language in the

special verdict form comply with the mandate propounded in

Collins and that Daniels’ Sixth Amendment rights were not

violated.

Normally, the issue of whether the district court properly

instructed the jury on the law is reviewed de novo. United

States v. Thompson, 421 F.3d 278 (4th Cir. 2005). However,

because Daniels failed to object to the adequacy of the drug

quantity instruction at the time it was given, we review for

plain error. United States v. Foster, 507 F.3d 233, 249 (4th

Cir. 2007) (citing United States v. Olano, 507 U.S. 725, 732

(1993)). Under Federal Rule of Criminal Procedure 52(b), a

court of appeals may correct a district court upon

identification of an “error” that is “plain” and that “seriously

affect[s] substantial rights.” In addition, an appellate

court’s reversal under plain error review is incumbent upon a

finding that the error “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’”

Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S.

1, 15 (1985)).

25 Both the government and Daniels agree that our analysis

must be guided by the parameters established in United States v.

Collins, 415 F.3d 304 (4th Cir. 2005). Collins involved a

similar situation in which a defendant challenged his conviction

under 21 U.S.C. §§ 841(a) and 846, citing the district judge’s

failure to instruct the jury to apply Pinkerton principles in

determining the drug quantity for the penalty purposes of §

841(b). 3 This Court held that the threshold drug quantities for

penalty purposes under § 841(b) must be determined by a jury

beyond a reasonable doubt. 4 Furthermore, we held that a district

court must instruct a jury that in establishing the threshold

drug quantities, it must, pursuant to Pinkerton, determine the

quantity attributable to each co-conspirator--that is, the

3 In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme Court held that in a criminal conspiracy case, a defendant can only be held liable for conduct that is within the scope of the criminal agreement and reasonably foreseeable as a natural consequence of the agreement. 4 The progression of our analysis was summarized in United States v. Brooks, 524 F.3d 549, 557-61 (4th Cir. 2008). We first held in United States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993) that a trial court must determine by a preponderance of the evidence the drug quantity attributable to a particular defendant. We were then guided by the Supreme Court’s conclusion in Apprendi v. New Jersey that “any fact that increases the penalty . . . beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Accordingly, in United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en banc), cert. denied, 535 U.S. 109, 122 S. Ct. 2296, 152 L. Ed. 2d 1053 (May 28, 2002), we held that a jury must determine the drug quantity to establish a defendant’s statutory sentencing range under 21 U.S.C. § 841(b). 26 amount that was in furtherance of the conspiracy and reasonably

foreseeable to each defendant as opposed to the conspiracy as a

whole. Collins, 415 F.3d at 314 (citing United States v. Irvin,

2 F.3d 72 (4th Cir. 1993)).

At the close of Daniels’ trial the jury was instructed that

a conspirator “is responsible for offenses committed by another

co-conspirator if the conspirator was a member of the conspiracy

when the offense was committed, and if the offense was committed

in furtherance of, or as a foreseeable consequence of, the

conspiracy.” (J.A. 1717.) This satisfactorily references

Pinkerton principles as to the general conspiracy offense under

§ 846. However, an equivalent supplemental instruction was not

provided as to the sentencing provision in § 841(b) that

addresses drug quantity. The only instruction given to the jury

relating to drug quantity reads:

Your decision regarding the quantity and type of substance must be unanimous as to each substance and each amount. You will be provided with a special verdict form that specifically addresses the drug and quantity to be considered. (J.A. 1715.)

The Government argues that the special verdict form

supplemented and compensated for omissions in the jury

instruction. That special verdict form asks the jury to

determine whether defendant was guilty of the substantive

conspiracy offense and then asks whether “one kilogram or more

of a mixture and substance containing a detectable amount of

27 heroin was reasonably foreseeable” to Defendant and whether “500

grams or more of a mixture and substance containing a detectable

amount of cocaine reasonably foreseeable” to Defendant. (J.A.

1762.) After oral argument, the Government noted an unpublished

opinion by another panel of this Court in United States v.

Howard, No. 07-4146, 2009 U.S. App. LEXIS 1716 (4th Cir. Jan.

29, 2009). 5 In that case, this Court addressed a case involving

three defendants in which the evidence that the overall drug

quantity was attributable to each of the three defendants was

“overwhelming and essentially uncontroverted” and it was found

that the Collins requirement was satisfied by a special verdict

form. Howard, 2009 U.S. App. LEXIS 1716, at *11-15.

Unpublished opinions are not binding precedent in this Circuit,

and we decline to hold that Collins error can be corrected by a

special verdict form. Furthermore, the facts in Howard are

distinguishable from the facts in this case. Defendant Daniels

was one of eight defendants charged in a thirteen-count Third

Superseding Indictment charging conspiracy in the possession and

distribution of both heroin and cocaine. The evidence in this

case as to the respective amounts of these two drugs

attributable to the numerous defendants was not overwhelming and

uncontroverted. A careful application of the principles

5 Supplemental submissions were filed by the Government and Daniels pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure. 28 established in Collins and reiterated in Brooks was manifestly

important. The complexity of the evidence in this case

compelled a jury instruction satisfying the principles of

Collins and omissions in that jury instruction were not

alleviated by the special verdict form.

In Collins, we stated that “for purposes of setting a

specific threshold drug quantity under § 841(b), the jury must

determine what amount of [drugs] was attributable to [defendant]

using Pinkerton principles.” 415 F.3d at 314. The special

verdict form submitted to the jury superficially refers to the

Pinkerton principles when it asks the jury if certain quantities

of drugs were “reasonably foreseeable to Daniels.” However, we

find that the jury in this case was not sufficiently instructed

on the factors necessary to make an informed determination of

the threshold drug quantity under § 841(b). For instance, under

Pinkerton, the jury must determine not only the quantity of

drugs “reasonably foreseeable” to Daniels, but also that the

drugs were distributed “in furtherance of the conspiracy.” In

addition, the jury must be instructed to determine the amount of

drugs “attributable” to the individual defendant as a co-

conspirator, as opposed to the quantity of drugs distributed by

the entire conspiracy. At no point, in either the instructions

or the special verdict form, was the jury instructed to assess

29 the amount of drugs “attributable” to Daniels alone, rather than

to the conspiracy in its entirety.

The importance of explicitly instructing a jury under

Collins is poignantly revealed by the circumstances in this

case. The jury’s decisions on whether or not one kilogram of

heroin and 500 grams of cocaine were attributable to Daniels

under § 841(b) determined whether or not Daniels faced a

mandatory life sentence under Count One. This underscores the

need for an individualized sentence due to the significant

liberty interest at stake. To protect the need for an

individualized sentence, juries must be thoroughly and

explicitly instructed; courts cannot assume that the complex

issues relating to Pinkerton and drug quantity are obvious or

self-explanatory. In light of these concerns, we conclude that

Collins’ weighty mandate may not be satisfied by an isolated and

perfunctory reference in a special verdict form.

The jury was not sufficiently informed in accordance with

Collins. This infringed Daniels’ Sixth Amendment rights and

constituted plain error under the Olano analysis. In addition,

Daniels’ mandatory life sentence on the conspiracy count is more

punitive than the statutory default sentence under §

841(b)(1)(B), 6 which provides for a sentencing range of ten years

6 Daniels has at least one prior drug conviction that was noticed by the government which raises the statutory maximum 30 to life. Because a life sentence is not lightly imposed, we

find that Daniels’ substantial rights were affected.

Having found that the three threshold prerequisites of

plain error review have been satisfied, we turn to the question

of whether to exercise our discretion under Rule 52(b) to notice

the forfeited error. The Supreme Court has held that an

appellate court’s discretion is appropriately exercised only

when the error “‘seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’” Olano, 507 U.S. at

736 (quoting United States v. Atkinson, 297 U.S. 157, 160

(1936)). The Government argues that we should decline to notice

the error because “the overwhelming and essentially

uncontroverted evidence supported the conclusion that Defendant

was responsible for more than 1,000 grams of heroin and 500

grams of crack cocaine.” (Appellee Br. 32 (citing Foster, 507

F.2d at 252; United States v. Cotton, 535 U.S. 625, 633

(2002)).)

In United States v. Cotton, the Supreme Court found a Sixth

Amendment error when the government failed to allege drug

quantity in an indictment under § 846 consistent with the

principles set forth in Apprendi v. New Jersey, 530 U.S. 466

(1990). See Cotton, 535 U.S. at 631-32. However, the Court

sentencing range contained in § 841(b)(1)(B) to between ten years and life in prison. 31 declined to notice the infringement on plain error review in

light of the “overwhelming” and “essentially uncontroverted”

evidence that supported the district court’s drug quantity

determination. Id. at 633. The Cotton precedent has recently

been applied in United States v. Foster, a case involving a

challenge to jury instructions for failing to cite Pinkerton

principles for drug conspiracy charges. See 507 F.3d at 252.

In Foster, the Collins error was avoided due to “overwhelming

and essentially uncontroverted” evidence in the record of

defendant’s responsibility for an amount in excess of 50 grams

of crack. 507 F. 3d at 250-51. The government established that

Foster was a major distributer of crack in Lexington Terrace

neighborhood of Baltimore City, “where perhaps over fifty grams

of crack were sold on a daily basis, to continue for a

substantial period of time.” Id. at 252. The court noted that

“[u]nquestionably, if the jury was properly instructed per

Collins, the government’s overwhelming evidence of the

substantial quantities of crack reasonably foreseeable to Foster

would have set the maximum sentence at life imprisonment. . . .” 7

Id. at 252.

7 In United States v. Davis, a Collins error was not noticed under harmless error review for several co-conspirators because of overwhelming evidence of their responsibility for amounts in excess of 50 grams of crack. 270 Fed. Appx. 236 (4th Cir. 2008). The court concluded that no rational jury could attribute less than 50 grams of crack to each defendant. The 32 At the outset of our analysis, we observe significant

factual differences between Foster and the present case. First,

Count One of the Superseding Indictment filed in this case

establishes a much higher threshold for conviction both in terms

of the number and quantity of drugs alleged. Instead of the

threshold of 50 grams of cocaine alleged in Foster, Daniels is

charged with conspiracy to distribute 1,000 grams or more of

heroin and 500 grams or more of cocaine. Therefore, we must

appraise the amount of evidence on drug quantity attributable to

Daniels and how it corresponds with the relatively high

threshold alleged for each separate drug.

We find that there is overwhelming and uncontroverted

evidence that over 500 grams of cocaine was attributable to

Daniels. Evidence was submitted regarding the search of

Apartment 106 of 1305 Kelston Place, a residence which Daniels

had access to and control over. Several police officers and

forensic chemists testified in detail about the various items

obtained from the search, including the seizure of more than 500

grams of cocaine. 8 The record therefore contains solid and

essentially unassailable evidence, both physical and

court noted that “[t]he evidence at trial showed that, even by conservative estimates, most [Defendants] were responsible for many thousands or tens of thousands of grams of crack.” Id. at 254-55 (emphasis in original). 8 The Presentence Investigation Report (“PSR”) determined that a total of 1,097 grams of cocaine was seized from the apartment at 1305 Kelston Place. (J.A. 1882.) 33 testimonial, indicating that more than the threshold quantity of

cocaine alleged in the conspiracy charge was directly

attributable to Daniels.

However, we do not find equally compelling evidence that

the quantity of heroin attributable to Daniels surpassed the

1,000 gram threshold alleged in the conspiracy charge. The most

convincing evidence confirming Daniels’ responsibility for

heroin was in the form of the over 200 grams of heroin seized

from the 1305 Kelston Place residence 9 and the 8 grams of heroin

seized from Daniels’ person when he was arrested in the parking

lot of the Bi-Lo grocery store. The remaining trial evidence

concerning Daniels’ ties to heroin was in the form of testimony

from co-conspirators, most of whom did not testify as to

specific quantities of heroin expressed in grams. In addition,

the credibility of these co-conspirators was heavily contested

on cross-examination, meaning that a jury could ascribe

correspondingly less weight to their statements. For instance,

in order to reach the one kilogram threshold for heroin, the

jury would have to rely heavily upon the testimony of co-

conspirator Charles McCombs, when he stated that he traveled

with Daniels to New York on three occasions in the beginning of

2005 to purchase what he estimated to be 300 grams of heroin at

9 The PSR determined that a total of 245.5 grams of heroin was seized from the apartment at 1305 Kelston Place. (J.A. 1882)). 34 a time. (J.A. at 1394-95, 1400-05.) However, not only was this

testimony uncorroborated, but McCombs admitted on recross-

examination that he never weighed the heroin or witnessed it

being weighed. (J.A. 1499-1501.)

Considered together, the evidence revealing Daniels’

responsibility for 1,000 grams of heroin is neither overwhelming

nor uncontroverted. Although there is solid evidence concerning

the combined seizure of up to 250 grams of heroin from Daniels’

person and from the apartment at 1305 Kelston Place, much of the

remaining testimonial evidence pertaining to heroin was

anecdotal, uncorroborated and contested on cross-examination.

Even if the jury had determined that one kilogram of heroin was

involved in the conspiracy (the quantity assessed in the PSR),

it is possible that a properly instructed jury could have

rationally attributed a lesser quantity to Daniels. See United

States v. David, 83 F.3d 638, 648 (4th Cir. 1996) (noticing

plain error for failure to instruct on an element of a crime

upon a determination that “a jury could conceivably have

concluded . . . that [the omitted element] was not ultimately

proven”). Therefore we conclude that a jury could conceivably

have found that less than 1,000 grams of heroin was attributable

to Daniels. The disparity between the evidence of quantity

attributable to Daniels and the amount charged is far less

dramatic than was manifested in Foster. A contrary ruling would

35 not comport with a common sense interpretation of the

“overwhelming and essentially uncontroverted evidence” standard

that serves to protect the fairness, integrity and reputation of

the judicial process.

Having determined it appropriate to exercise our discretion

under Rule 52(b), we are again directed by Collins in

prescribing the appropriate remedy. We vacate and remand to the

district court while withholding judgment on the conspiracy

count for thirty days. 10 The Government may elect to apply the

relevant default penalty provision in § 841(b)(1)(B) (providing

for a sentence of ten years to life in prison), or the

Government may request that the conspiracy conviction be

reversed and institute a new trial. See Collins, 415 F.3d at

315.

AFFIRMED IN PART, VACATED IN PART, AND JUDGMENT WITHHELD IN PART

10 Although Daniels’ sentence was improper, his conviction under Count One for conspiracy to distribute heroin and cocaine is legitimate since it does not depend upon a determination as to the amount or type of narcotics at issue. See Collins, 415 F.3d at 314. 36 DUNCAN, Circuit Judge, dissenting:

I respectfully dissent from part IV of my colleague’s

opinion and the resulting decision to remand. Collins holds

that a jury must determine “the quantity of narcotics

attributable to each coconspirator by relying on the principles

set forth in Pinkerton.” United States v. Collins, 415 F.3d

304, 312. Therefore, by its plain terms, our precedent requires

nothing more than a jury determination that a given quantity of

drugs was “reasonably foreseeable” to a defendant. To decide

otherwise would be to turn our notion of conspiracy, which

entails coconspirator liability for reasonably foreseeable acts,

on its head. See Pinkerton v. United States, 328 U.S. 640, 647-

48 (1946) (noting the “principle” that “the overt act of one

partner in crime is attributable to all” where it is “within the

scope of the unlawful project”). The notion of attribution in

Collins does not require greater proof of individual

responsibility for a substantive crime, including an amount of

drugs distributed, than does our jurisprudence following

Pinkerton. The drugs “attributable” to a defendant are those

reasonably foreseeable to him based upon his participation in

the conspiracy. See Collins, 415 F.3d at 312 (finding it is the

“amount of narcotics attributable to [an individual defendant]”

and not “the amount of narcotics distributed by the entire

conspiracy” that is determinant under § 841(b)). Thus, any

37 narcotics that were distributed by the conspiracy but not

reasonably foreseeable to an individual defendant--and therefore

not, under Pinkerton, properly attributable to him--may not be

considered in determining his sentence.

In this case, pursuant to the special verdict form, the

jury found that the drug amounts in question were “reasonably

foreseeable to Jermal Daniels.” J.A. at 1809. This is all that

Collins requires. There is no basis in the record to assume

that the jury’s determination was inadequate. I therefore

respectfully dissent from the portion of the court’s opinion

finding a Collins violation. Because I find no violation, I do

not join in the decision to reverse the judgment of the district

court and remand on this question.