USCA4 Appeal: 22-4185 Doc: 103 Filed: 01/14/2025 Pg: 1 of 16
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE VERNON DUNLAP,
Defendant - Appellant.
No. 22-4185
TERRENCE VERNON DUNLAP, a/k/a Tex,
Appeals from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:19-cr-00781-MGL-1; 3:17-cr-00811-MGL- 13)
Submitted: November 22, 2024 Decided: January 14, 2025 USCA4 Appeal: 22-4185 Doc: 103 Filed: 01/14/2025 Pg: 2 of 16
Before GREGORY and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Thomas Kieran Maher, LAW OFFICE OF AMOS TYNDALL PLLC, Carrboro, North Carolina, for Appellant. Adair F. Boroughs, United States Attorney, Columbia, South Carolina, Andrea G. Hoffman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2016, a task force led by the Federal Bureau of Investigation began an
investigation into the drug trafficking activities of brothers Dantrell Smith and Santerrio
Smith (“S. Smith”). Through a variety of investigative techniques, including wiretaps, the
task force discovered the involvement of multiple individuals in the drug trafficking
conspiracy, including Terrence Vernon Dunlap. Some of those individuals pled guilty, but
Dunlap and others (collectively, “Defendants”) chose to go to trial. The jury convicted
Dunlap of conspiracy to possess with intent to distribute and distribute five kilograms or
more of a mixture or substance containing cocaine and 100 grams or more of a mixture or
substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846
(Count 1); using a communication facility during the commission of that conspiracy, in
violation of 21 U.S.C. § 843(b) (Count 21); and possession with intent to distribute and
distribution of a quantity of cocaine base (“crack cocaine”), in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (Count 49). While the drug trafficking trial was ongoing, Dunlap,
his mother, and his sister confronted one of the jurors. All three pled guilty to jury
tampering and aiding and abetting the same, in violation of 18 U.S.C. §§ 2, 1503(a), (b)(2)
(Count 1A). In these consolidated appeals, Dunlap challenges his convictions and his 232-
month sentence. We affirm.
I.
Dunlap argues that the district court erred in denying Defendants’ motion to
suppress the evidence obtained from the wiretaps. Specifically, he argues that the wiretap
orders were not supported by probable cause or a showing that normal investigative
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techniques had failed. Dunlap, however, correctly observes that we rejected these same
arguments in an appeal brought by some of his co-conspirators. See United States v.
Pernell, Nos. 20-4135/4044, 21-4172, 2023 WL 3050983, at *1-3 (4th Cir. Apr. 24, 2023).
II.
Dunlap challenges the district court’s denial of his motion to sever the substantive
drug trafficking offense in Count 49 from the drug trafficking conspiracy offense in Count
1 and the related use of communication facility offense in Count 21. Specifically, he argues
that the joinder of the offenses prejudiced him because the Government failed to establish
that the drug transaction alleged in Count 49 was related to the conspiracy.
“Under Federal Rule of Criminal Procedure 8(a), a single indictment may charge a
defendant with multiple counts if the offenses charged ‘are of the same or similar character,
or are based on the same act or transaction, or are connected with or constitute parts of a
common scheme or plan.’” United States v. Branch, 537 F.3d 328, 341 (4th Cir. 2008)
(quoting Fed. R. Crim. P. 8(a)). “Rule 8(a) permits very broad joinder because the prospect
of duplicating witness testimony, impaneling additional jurors, and wasting limited judicial
resources suggests that related offenses should be tried in a single proceeding.” United
States v. Hawkins, 776 F.3d 200, 206 (4th Cir. 2015) (cleaned up). But Rule 8(a) “cannot
be stretched to cover offenses which are discrete and dissimilar,” as “[j]oinder of unrelated
charges creates the possibility that a defendant will be convicted based on considerations
other than the facts of the charged offense.” Id. (cleaned up). “Whether charges are
properly joined in an indictment is a question of law that we review de novo.” Id.
(emphasis omitted).
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But even if offenses are properly joined, severance is appropriate if the defendant
establishes that he would be prejudiced by the joinder. Fed. R. Crim. P. 14(a). A defendant
moving to sever properly joined counts “bears the burden of demonstrating a strong
showing of prejudice,” Branch, 537 F.3d at 341 (internal quotation marks omitted), “and
it is not enough to simply show that joinder makes for a more difficult defense,” United
States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984). Indeed, “a district court should
grant a severance under Rule 14 only if there is a serious risk that a joint trial
would . . . prevent the jury from making a reliable judgement about guilt or innocence.”
Zafiro v. United States, 506 U.S. 534, 539 (1993). “[T]he district court’s denial of a motion
to sever should be left undisturbed, absent a showing of clear prejudice or abuse of
discretion.” Branch, 537 F.3d at 341 (internal quotation marks omitted); see United
States v. Hornsby, 666 F.3d 296, 309 (4th Cir. 2012) (“Where offenses are properly joined
under Rule 8(a), severance of the offenses is rare.”).
We conclude that the district court did not abuse its discretion in denying Dunlap’s
motion to sever Count 49 from Counts 1 and 21. Contrary to Dunlap’s argument, the
Government established that the transaction alleged in Count 49 was related to the
conspiracy. The transaction occurred during the conspiracy at a place often used by
members of the conspiracy for distributing drugs and involved the same kind of drugs and
several of the same characters. But even if Count 49 was not related to the conspiracy, we
conclude that the joint trial did not prejudice Dunlap because there was more than enough
evidence to convict him of the conspiracy, including the intercepted calls and the testimony
of multiple co-conspirators.
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III.
Dunlap argues that the district court erred in granting the Government’s motion to
limit the cross-examination of a cooperating witness (“CW”) who testified about Dunlap’s
involvement in the conspiracy. Dunlap wanted to question the CW about the mandatory
life sentence he faced when he first decided to cooperate with the Government. The
Government opposed that line of questioning because the CW no longer faced a mandatory
life sentence after application of the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 4194. To avoid jury confusion and nullification, the district court prohibited defense
counsel from questioning the CW about the mandatory life sentence.
“A trial judge has wide latitude to impose reasonable limits on cross-examination
to address concerns of prejudice, confusing the jury, relevance, and repetition.” United
States v. Kiza, 855 F.3d 596, 604 (4th Cir. 2017) (internal quotation marks omitted).
Accordingly, “[w]e review for abuse of discretion a trial court’s limitation on a defendant’s
cross-examination of a prosecution witness.” Id. at 603-04 (internal quotation marks
omitted). And we find that the district court abused its discretion in denying the defendant
an opportunity to cross-examine a witness, we will not reverse if the error was harmless.
United States v. Turner, 198 F.3d 425, 430-31 (4th Cir. 1999).
“[A] defendant’s right to cross-examine cooperating witnesses about sources of
potential bias is guaranteed by the Confrontation Clause of the Constitution.” United
States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1997). “A witness’s understanding of the
potential penalties faced prior to entering into a plea agreement may demonstrate bias and
prejudice, as well as the motive of the witness for testifying against the defendant and for
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the prosecution.” Turner, 198 F.3d at 430. Accordingly, such an inquiry is “highly
relevant to testing the witness’s credibility.” Id.
But while a defendant may ask a cooperating witness whether he hopes to receive
some benefit in exchange for his testimony, a district court may prohibit the defendant from
asking questions about the “specific penalties” the witness faced before pleading guilty.
Cropp, 127 F.3d at 358-59. As we explained, if the jury learned of the specific sentence a
cooperating witness avoided by pleading guilty, the jury could infer that the defendant
would receive a similarly long sentence if convicted. Id. The jury, therefore, might acquit
the defendant out of sympathy. Id. at 359. And given that a defendant may still reveal a
cooperating witness’s potential bias by asking whether he expects to receive some benefit
for his testimony, the risk of jury nullification outweighs the probative value of information
about specific sentences. See id.
Dunlap relies on United States v. Larson, 495 F.3d 1094 (9th Cir. 2007) (en banc),
to contend that a mandatory life sentence is qualitatively different than other penalties a
witness seeks to avoid by cooperating with the government. The Ninth Circuit generally
holds, as we did in Cropp, “that it is not error for the district court to prohibit cross-
examination regarding the potential maximum statutory sentence that the witness faces,”
as “such evidence [is] at best marginally relevant to a witness’[s] potential bias and motive
in testifying.” Larson, 495 F.3d at 1106 (internal quotation marks omitted). But the Ninth
Circuit explained that a “potential maximum statutory sentence that a cooperating witness
might receive . . . is fundamentally different from the mandatory minimum sentence that
the witness will receive in the absence of a motion by the [g]overnment.” Id. (emphases in
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original). While “a defendant seldom receives the maximum penalty permissible under the
statute of conviction,” “the fact that . . . a cooperating witness faced a mandatory life
sentence without the possibility of release in the absence of a government motion is highly
relevant to the witness’[s] credibility.” Id. The mandatory life sentence “is a sentence that
the witness knows with certainty that he will receive unless he satisfies the government
with substantial and meaningful cooperation so that it will move to reduce his sentence.”
Id. (emphasis in original).
But Dunlap omits that the Larson court found that the violation of the Confrontation
Clause was harmless. Id. at 1107-08. The court explained that the government’s case
against the defendants was strong even without the cooperating witness’s testimony; that
the trial “court instructed the jury that it should view the testimony of the cooperating
witnesses with greater caution than that of other witnesses”; and that counsel was able to
explore through cross-examination the cooperating witness’s “criminal past, history as a
drug user and seller, and desire to obtain a lesser sentence through his testimony against
his co-conspirators.” Id. at 1108.
As in Larson, Dunlap’s drug trafficking conspiracy conviction did not depend on
the CW’s testimony, as other cooperating witnesses provided even more damaging
testimony about Dunlap’s involvement in the conspiracy. The CW’s testimony, however,
established that Dunlap was guilty of Count 21, as the CW recognized Dunlap’s voice on
the intercepted call. But, as in Larson, counsel was able to effectively cross-examine the
CW about his potential motivation to lie, eliciting that the CW was hoping to reduce his
significant statutory penalties by testifying. The Government also questioned the CW
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about his drug addiction, his prior conviction for providing false information to the police,
the significant benefit he received from his plea agreement, and the downward departure
he expected for his substantial assistance. Finally, the district court instructed the jury to
examine the testimony of drug addicts, convicted felons, and cooperating witnesses with
greater care than the testimony of an ordinary witness. Based on these factors, we conclude
that, even if a mandatory life sentence is qualitatively different than any other sentence a
witness is seeking to avoid through his cooperation, any error in limiting the cross-
examination of the CW here was harmless.
IV.
Moving on to the jury tampering conviction, Dunlap argues that the district court
plainly erred by accepting his plea. Specifically, he contends that the district court was
required to conduct the plea colloquy with special care because the court was aware that
his plea was part of a package deal—that is, if any of the Dunlaps declined to plead guilty,
then all three would go to trial.
“Because [Dunlap] did not attempt to withdraw his guilty plea in the district court,
we review this claim for plain error.” United States v. Kemp, 88 F.4th 539, 545
(4th Cir. 2023) (internal quotation marks omitted). “Under that standard, [Dunlap] can
prevail and withdraw his plea only if he demonstrates an obvious or plain error that affected
his substantial rights.” Id. (internal quotation marks omitted). “[T]o establish an effect on
his substantial rights in this context, [Dunlap] bears the burden of establishing a reasonable
probability that, but for the error, he would not have entered the plea.” Id. (internal
quotation marks omitted).
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The promise of adverse or lenient treatment for a third party is a legitimate tool in
the plea bargaining process that does not render a plea per se invalid. Harman v. Mohn,
683 F.2d 834, 838 (4th Cir. 1982). Even so, “[s]pecial care must be taken to determine the
voluntariness of the plea in such circumstances,” as the promise of leniency for a third
party in a plea agreement “might pose a greater danger of inducing a false guilty plea by
skewing the assessment of the risks a defendant must consider.” United States v. Morrow,
914 F.2d 608, 613 (4th Cir. 1990). When a plea agreement affects the interests of a third
party, we have considered many factors to assess whether the plea was voluntary,
including: (1) whether the agreement was fully disclosed to the court; (2) whether the third
party had already been charged; (3) whether there was probable cause to support the
potential prosecution of the third party; (4) whether the parties were represented by separate
counsel; (5) whether the defendant readily admitted guilt at the plea hearing; (6) whether
the defendant disputed the voluntariness of the plea agreement at the time of the plea; and
(7) whether there was evidence that the third party pressured the defendant to plead guilty.
See id.; Harman, 683 F.2d at 837-38.
We conclude that the district court took the required special care to ascertain
whether Dunlap’s plea was voluntary. After learning about the package deal, the district
court confirmed that neither the Government nor Dunlap’s family members bribed him or
threatened any kind of physical or financial harm if he did not plead guilty. Apart from
this colloquy, other factors demonstrated the voluntariness of Dunlap’s plea. Specifically,
Dunlap’s mother and sister had already been charged, meaning there was probable cause
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for their prosecution; all three Dunlaps had their own attorneys; and Dunlap readily
admitted his guilt based on the factual basis provided by the Government.
Dunlap, however, contends that the district court was obligated to ask more
questions about the package deal, like when he learned about the deal or whether he had
time to weigh the benefit to his family members against the sacrifice of his trial rights.
While the district court did not ask those specific questions, it inquired whether Dunlap
had sufficient time to discuss the plea agreement with counsel and whether he was satisfied
with counsel’s services. Dunlap expressed his displeasure with the timeframe and
counsel’s services, but his concern was about his Sentencing Guidelines range, which the
district court correctly advised him on multiple occasions would not be known until the
sentencing hearing. Thus, Dunlap’s hesitancy in pleading guilty was caused by his
misunderstanding of the sentencing process. He expressed no hesitancy about the package
deal other than that it made the decision whether to plead guilty more difficult.
Accordingly, even if the district court plainly erred, we conclude that Dunlap has not
established that he would not have pled guilty had the court asked him more probing
questions about the package deal.
“We review a district court’s sentencing decisions under a deferential abuse-of-
discretion standard.” United States v. McCabe, 103 F.4th 259, 285 (4th Cir. 2024) (internal
quotation marks omitted), cert. denied, No. 24-5480, 2024 WL 4486494 (U.S.
Oct. 15, 2024). And “[w]hen considering a challenge to a district court’s application of the
Guidelines, [we] review[] factual findings for clear error and legal conclusions de novo.”
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United States v. Freitekh, 114 F.4th 292, 317 (4th Cir. 2024) (internal quotation marks
omitted). “Under the clear error standard, we will only reverse if left with the definite and
firm conviction that a mistake has been committed.” United States v. Claybrooks, 90 F.4th
248, 253 (4th Cir. 2024) (internal quotation marks omitted). “If the district court’s account
of the evidence is plausible in light of the record viewed in its entirety, the court of appeals
may not reverse it even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” United States v. Charboneau, 914 F.3d
906, 912 (4th Cir. 2019) (internal quotation marks omitted).
A.
Dunlap challenges the application of the two-level enhancement for possession of a
firearm during the commission of the drug trafficking conspiracy. See U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2018). This enhancement “reflects the increased danger
of violence when drug traffickers possess weapons” and “should be applied if the weapon
was present, unless it is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1 cmt. n.11(A).
The district court applied the enhancement here because the CW told the
investigating officers that he saw a firearm in a door compartment of Dunlap’s vehicle
when Dunlap was visiting S. Smith to either pick up drugs or pay S. Smith with drug
proceeds. Dunlap argues that the district court clearly erred in applying the enhancement
because the CW was unreliable and, therefore, his statement was not sufficiently reliable
to support the enhancement. Dunlap emphasizes that the CW never mentioned that he saw
a firearm during his lengthy trial testimony, that no other witnesses claimed to see Dunlap
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with a firearm, and that the Government failed to present any evidence at the sentencing
hearing to support the enhancement. Dunlap also criticizes the district court for failing to
make any findings about the CW’s credibility generally or about the credibility of his
statement about the firearm.
“It is well established that a court may, for purposes of sentencing, consider any
relevant information before it, including uncorroborated hearsay, provided that the
information has sufficient indicia of reliability to support its accuracy.” United States v.
Mondragon, 860 F.3d 227, 233 (4th Cir. 2017) (internal quotation marks omitted). “[T]he
defendant bears an affirmative duty to show that the information in the presentence report
[(PSR)] is unreliable, and articulate the reasons why the facts contained therein are untrue
or inaccurate.” Id. (internal quotation marks omitted). A “district court’s determination
that evidence is sufficiently reliable to be considered at sentencing is reviewed for an abuse
of discretion.” United States v. Pineda, 770 F.3d 313, 318 (4th Cir. 2014).
At a sentencing hearing, the district court “must—for any disputed portion of the
[PSR] or other controverted matter—rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because the court will
not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). “A sentencing court’s
findings on controverted matters ensure a record as to how the district court ruled on any
alleged inaccuracy in the PSR and allows effective appellate review of the sentence
imposed.” United States v. Bolden, 325 F.3d 471, 497 (4th Cir. 2003) (cleaned up). But
“the court need not articulate findings as to disputed factual allegations with minute
specificity.” Id. (cleaned up). In fact, “[a] district court may adopt the PSR’s findings in
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toto as the factual basis for a sentencing decision so long as it clearly resolved any factual
disputes.” United States v. Burnley, 988 F.3d 184, 190 (4th Cir. 2021) (cleaned up).
Nonetheless, “an enhancement that rests only on a general citation to the PSR may still fail
clear error review if the record as a whole runs contrary to that conclusion.” Id.
Dunlap is correct that there were reasons to question the CW’s reliability, including
his drug addiction, his criminal history, his motives for cooperating, and his purported bias
against Dunlap. But these characteristics are not uncommon for a cooperating witness.
Moreover, contrary to Dunlap’s assertion, the district court explained why it believed the
CW’s statement. Specifically, the district court explained that the connection between the
CW, S. Smith, and Dunlap was corroborated by the intercepted calls, which showed that
the three men were engaged in the drug trafficking business together. We conclude that it
was not clear error for the district court to credit the CW’s statement and to find that the
Government established by a preponderance of the evidence that Dunlap possessed a
firearm during the course of the drug trafficking conspiracy.
B.
Dunlap’s final challenge is to the district court’s calculation of the drug quantity
attributed to him. “For sentencing purposes, the government must prove the drug quantity
attributable to a particular defendant by a preponderance of the evidence.” United States v.
Bell, 667 F.3d 431, 441 (4th Cir. 2011). “The Guidelines notes instruct that when no known
amount of drugs can be relied on to establish a defendant’s attributable drug weight, the
district court must ‘approximate the quantity of the controlled substance’ at issue.” United
States v. Banks, 104 F.4th 496, 526 (4th Cir. 2024) (quoting USSG § 2D1.1 cmt. n.5), cert.
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denied, No. 24-5300, 2024 WL 4427486 (U.S. Oct. 7, 2024), and cert. denied, No. 24-
5738, 2024 WL 4743162 (U.S. Nov. 12, 2024). When doing so, “district courts enjoy
considerable leeway and may give weight to any relevant information before it, including
uncorroborated hearsay, provided that the information has sufficient indicia of reliability
to support its accuracy.” Id. (internal quotation marks omitted). Nonetheless, “courts must
exercise caution in estimating drug quantity at sentencing, and must not attribute
speculative or scantily supported amounts to defendants.” Id. (cleaned up). Thus, “we
have cautioned that when the approximation is based only upon uncertain witness
estimates, district courts should sentence at the low end of the range to which the witnesses
testified.” Bell, 667 F.3d at 441 (internal quotation marks omitted).
Dunlap contends that the district court clearly erred by counting the 1,000 grams of
heroin derived from an intercepted call—Session 7334. We agree with Dunlap that this
conversation was unintelligible and that the district court clearly erred in attributing 1,000
grams of heroin to him based on this conversation. But we agree with the Government that
this error was harmless. The Guidelines prescribe a base offense level of 32 when the
offense involves between 3,000 and 10,000 kilograms of converted drug weight. USSG
§ 2D1.1(c)(4). The converted drug weight for 1,000 grams of heroin is 1,000 kilograms.
USSG § 2D1.1 cmt. n.8(D). Subtracting 1,000 kilograms from the total converted drug
weight of 6,432.74 kilograms results in a converted drug weight of 5,432.74 kilograms,
which still falls within the range for a base offense level of 32. USSG § 2D1.1(c)(4).
Dunlap also argues that the district court clearly erred by counting the quantity of
crack cocaine derived from the CW’s statement. We disagree. Again, while there were
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reasons to doubt the CW generally, his statement about the quantity of crack cocaine was
corroborated by the testimony of other cooperating witnesses and the intercepted calls.
Accordingly, the district court did not clearly err in counting the quantity of crack cocaine
derived from the CW’s statement.
VI.
Although we deny Dunlap’s motion to relieve appellate counsel and proceed pro se,
we grant his motion for leave to file a pro se supplemental brief. See United States v. Gillis,
773 F.2d 549, 560 (4th Cir. 1985). We have thoroughly reviewed Dunlap’s pro se
supplemental brief but have identified no valid ground for relief. Accordingly, we affirm
Dunlap’s convictions and sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED