US v. Learley R. Goodwin

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:04-cr-00235-RWT-3. Copies to all parties and the district court/agency. [998714581]. [07-4059, 07-4060, 07-4062, 07-4063, 07-4080, 07-4115]

Appeal: 07-4059

Document: 348

Date Filed: 11/02/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4059

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEARLEY REED GOODWIN, a/k/a Goodie, a/k/a Lonnie Ross,
Defendant - Appellant.

No. 07-4060

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAULETTE MARTIN, a/k/a Paulette Murphy,
Akuffo, a/k/a Paula Murphy, a/k/a Auntie,
Defendant - Appellant.

No. 07-4062

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

a/k/a

Paulette

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LANORA N. ALI, a/k/a La Nora Ali-Gardner,
Defendant - Appellant.

No. 07-4063

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REECE COLEMAN WHITING, JR., a/k/a Guy Counts, a/k/a Cups,
a/k/a Dino Whiting,
Defendant - Appellant.

No. 07-4080

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERREK LEWIS BYNUM, a/k/a Bo,
Defendant - Appellant.

No. 07-4115

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

2

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LAVON DOBIE, a/k/a Becky Parker, a/k/a Theresa Waller, a/k/a
Dobie Parker,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:04-cr-00235-RWT-3; 8:04-cr-00235-RWT-1; 8:04-cr-00235-RWT-10;
8:04-cr-00235-RWT-6; 8:04-cr-00235-RWT-7; 8:04-cr-00235-RWT-9)

Argued:

September 20, 2011

Decided:

November 2, 2011

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed
in
part,
vacated
in
part,
and
remanded
with
instructions by unpublished opinion.
Judge Duncan wrote the
opinion, in which Judge Motz and Judge Gregory joined.

ARGUED: Marc Gregory Hall, HALL & CHO, PC, Rockville, Maryland;
Alan Dexter Bowman, Newark, New Jersey; G. Alan DuBois, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellants. Anthony William Vitarelli, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Michael
D. Montemarano, MICHAEL D. MONTEMARANO, PA, Elkridge, Maryland,
for Appellant Martin; Anthony D. Martin, ANTHONY D. MARTIN, PC,
Greenbelt, Maryland, for Appellant Goodwin; Timothy S. Mitchell,
LAW OFFICE OF TIMOTHY S. MITCHELL, Greenbelt, Maryland, for
Appellant Bynum.
Rod J. Rosenstein, United States Attorney,
Deborah A. Johnston, Bonnie S. Greenberg, Stefan D. Cassella,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland; Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney
General,
Daniel
Steven
Goodman,
UNITED
STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Learley
Whiting,

Goodwin,

Jr.,

Derrek

Paulette
Bynum,

Martin,

and

Lavon

Lanora
Dobie

Ali,

Reece

(collectively

“Appellants”) were tried together and convicted of conspiracy
and other offenses in relation to the distribution of narcotics.
On appeal, Appellants raise numerous claims, both collectively
and individually, challenging their convictions and sentences. 1
For

the

reasons

that

follow,

we

affirm

the

judgment

of

the

district court except as to Dobie’s sentence, which we vacate.
We remand the case to the district court for resentencing.

I.
This case, involving a large number of individuals over an
extended

period

background.

of

time,

has

produced

a

complex

factual

While Appellants bring multiple claims on appeal,

oral argument focused on the claims of three appellants: Ali,
Whiting,

and

Dobie.

One

of

these

claims

is

a

collective

challenge, whereas the rest are individual to Ali, Whiting, and
Dobie, respectively.

We have considered Appellants’ remaining

1

Goodwin, Martin, Bynum, and Dobie also challenge the
forfeiture of their assets pursuant to 21 U.S.C. § 853.
The
same appellants, sans Dobie, bring identical challenges to the
forfeiture in a subsequently filed appeal.
We address these
challenges to the criminal forfeiture in a separately filed
opinion in Case No. 10-5301.

4

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claims on appeal and conclude they lack merit.
ease

of

reference,

we

set

forth

the

facts

Therefore, for

relative

to

Ali,

Whiting, and Dobie, who make the arguments warranting the most
extensive,

individualized

discussion.

We

provide

additional

information as necessary.
A.
This case involves a large drug trafficking organization
that

supplied

drugs

throughout

Maryland, and Virginia.
this

organization.

intermediary,
level

retail

District

of

Columbia,

Paulette Martin was the key player in

Martin

connecting

the

acted

dealers.

From

major

drug

supply

drug

suppliers

to

street-

March

wholesale

as

a

until

June

2004,

investigators, acting with court authorization, tapped Martin’s
phone

lines.

Based

on

information

gathered

from

those

intercepts and ensuing investigations, authorities arrested over
thirty

individuals

and

executed

more

than

twenty

search

warrants.
Ali, Whiting, and Dobie were connected to the organization
in different ways.
Martin’s.

Ali was a close friend and drug customer of

Over the period of the investigation, Ali contacted

Martin by phone an average of three times per day.

Authorities

intercepted numerous phone calls during which Ali sought drugs
from

Martin.

Authorities

also

recorded

Ali

discussing

Martin the arrests of other members of the conspiracy.
5

with

During

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the investigation, intercepted calls indicated that Martin was
becoming concerned that authorities would raid her residence and
that she had decided to relocate her drug business from her
residence

to

a

performing

arts

school

that

she

owned.

Subsequently, surveillance cameras captured Ali helping Martin
move bags from Martin’s residence to the performing arts school.
Ali

also

stored

Martin.

Upon

in

her

raiding

home

a

Ali’s

locked

suitcase

residence,

inside

belonging
the

to

suitcase

authorities discovered $129,600 in currency and several papers
bearing Martin’s name.
Whiting was another drug customer of Martin’s.

In addition

to buying drugs from Martin, Whiting also purchased drugs for
resale from another member of the conspiracy, Emilio Echarte,
one of Martin’s drug suppliers.

To repay a debt owed to Echarte

relating to the resale of drugs, Whiting drove Echarte to pick
up drugs from a bus arriving in Virginia.
Dobie
purpose

of

occasions
Authorities

purchased
resale.
discussing
also

heroin

and

Authorities
with

recorded

cocaine

recorded

Martin
Dobie

from

the

Dobie
resale

discussing

arrest of another member of the conspiracy.

Martin

with

on
of

for

the

multiple
drugs.

Martin

the

Authorities raided

Dobie’s residence on June 1, 2004, and found 11.65 grams of
heroin, drug paraphernalia, and two handguns.

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B.
Count

One

of

the

indictment

on

which

they

were

tried

charged Ali, Whiting, and Dobie with violating 21 U.S.C. § 846
by conspiring among themselves and with others to distribute and
possess

with

intent

to

distribute

five

kilograms

or

more

of

cocaine, one kilogram or more of heroin, and fifty grams or more
of cocaine base, in violation of 21 U.S.C. § 841.

Count Sixty-

One of the indictment charged Dobie with possession of a firearm
in furtherance of a drug trafficking conspiracy, in violation of
18 U.S.C. § 924(c).

The indictment also charged Ali, Whiting,

and Dobie with multiple counts of using a communication facility
in the commission of a felony.
On

August

deliberations,

31,
a

multiple

counts

convicted

each

multiple

counts

2006,

jury

convicted

related
on

Count

of

after

to
One

using

commission of a felony.

the

a

of

42

days

of

Ali,

Whiting,

drug

trial

conspiracy.

the

and

indictment,

communication

Dobie
The

as

facility

and
on

jury

well

on

in

the

The jury also convicted Dobie on Count

Sixty-One.
The district court sentenced Ali to a total of 120 months’
imprisonment, Whiting to life imprisonment, and Dobie to 206
months’ imprisonment.

This appeal followed.

7

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II.
Ali,

Whiting,

admission

of

regarding

drug

challenges

her

and

expert

Dobie

testimony

trafficking
§

collectively

841

from

government

methods.

conviction

on

challenge

the

witnesses

Individually,
Count

One.

Ali
Dobie

individually challenges her § 924(c) conviction on Count SixtyOne as well as her sentence on Count One.

Also individually,

Whiting challenges the adequacy of the notice provided to him
regarding the government’s intention to seek enhancement of his
sentence pursuant to 21 U.S.C. § 841, based on previous drug
offense convictions.

We address each of these claims in turn.
A.

We first consider the collective argument that the district
court erred by allowing two government witnesses to testify both
as fact and expert witnesses without properly bifurcating their
testimony.

We review a district court’s decisions regarding

expert testimony

for

abuse

of

discretion.

United

States

v.

Baptiste, 596 F.3d 214, 222 (4th Cir. 2010).
Detectives Christopher Sakala and Thomas Eveler were two of
three case agents who led the investigation that culminated in
the arrests of Appellants.

Beyond the investigation related to

this case, at the time of trial, Sakala and Eveler had years of
experience investigating drug trafficking conspiracies, which,
combined, included engaging in thousands of drug transactions,
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dealing with numerous informants, and participating in dozens of
wiretap investigations.
On June 13, 2006, Sakala testified for the government as a
fact witness.
the

Sakala described, inter alia, the progression of

investigation,

the

phone conversations.

use

of

wiretaps,

and

the

intercepted

Sakala returned to the stand a week later,

on June 20, 2006, and gave extensive expert testimony.

Upon

returning to testify, the government walked Sakala through his
narcotics background and training to lay the foundation for his
expert testimony.

The purpose of Sakala’s expert testimony was

to aid the jury in interpreting the intercepted calls presented
to it.

Sakala gave his expert opinion, for example, as to the

true meaning of code words used by members of the conspiracy in
their recorded phone conversations.
While not entirely clear from the record, it appears that
Eveler first testified as a fact witness on July 19, 2006, and
then returned to the stand to testify as an expert witness on
July 25, 2006.

Eveler’s testimony was very similar to that of

Sakala’s.
Appellants
discretion
“factual

in

argue
allowing

testimony

was

that

the

district

court

abused

its

because

the

the

dual-role

testimony

not

bifurcated

or

delineated

in

any

fashion from [the] expert/opinion testimony, and was not in any

9

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way differentiated as to its sourcing or basis.”

Appellants’

Br. 68.
In Baptiste, this court outlined four safeguards concerning
bifurcation

and

delineation

that

a

district

court

should

consider in exercising its discretion to allow dual-role fact
and opinion testimony.

596 F.3d at 224.

First, a district

court may give a cautionary instruction to the jury reminding
the jury that it is up to it to determine the weight given to
testimony.

Second, defense counsel may cross-examine the

Id.

agent about his expert opinion, enabling the defense to clarify
the role of the witness at that point in the trial.

Id.

Third,

the government is required to establish a proper foundation for
the

witness’s

distinguish

expertise.

expert

opinion

Id.

Fourth,

testimony

the

from

government

fact

testimony

may
by

prefacing a witness’s expert testimony with a request that he
base his answers on his expertise.
addition

to

these

safeguards,

a

Id.

We also noted that, in

district

court

could

reduce

juror confusion “by requiring the witness to take separate trips
to the stand in each capacity.”

Id. at 225 n.9.

It is clear from the record and not disputed by appellants
that

(1)

discretion
examined
government

the

district

court

in

weighing

testimony,

Sakala
laid

and
a

Eveler

proper

instructed

in

(2)

10

defense

both

foundation

the

for

jury

as

to

counsel

capacities,
Sakala

and

its

cross-

(3)

the

Eveler’s

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expert

Date Filed: 11/02/2011

testimony,

and

(4)

the

Page: 11 of 25

government

prefaced

its

questioning of Sakala and Eveler in their expert capacities by
asking

them

to

base

their

answers

on

their

expertise.

The

district court and the government thus utilized each safeguard
enumerated in Baptiste.

The government also took the additional

step of having Sakala and Eveler take separate trips to the
stand--in each instance approximately a week apart--to clearly
separate their fact testimony from their opinion.

Accordingly,

we find no abuse of discretion in the admission of Sakala and
Eveler’s testimony.
B.
We
arguments

now

turn

on

to

appeal.

the
We

consideration
begin

with

of

Ali’s

the

individual

challenge

to

her

conviction on Count One, for conspiracy to distribute narcotics.
Ali advances two arguments in support of this challenge.

First,

Ali argues that there was insufficient evidence to support the
conviction.
the

When reviewing a challenge to the sufficiency of

evidence

determining

underlying

whether,

a

viewing

conviction,
the

we

evidence

are

and

the

limited

to

reasonable

inferences to be drawn therefrom in the light most favorable to
the government, the evidence adduced at trial could support any
rational

determination

of

guilty

beyond

a

reasonable

doubt.

United States v. Young, 609 F.3d 348, 354-55 (4th Cir. 2010).
In the alternative, Ali argues--for the first time on appeal-11

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that there was a fatal variance between the conduct charged in
Count One, the evidence introduced at trial as to Count One, and
the district court’s jury instruction on Count One.

Because Ali

did not raise this argument in the district court, it is subject
to plain error review.
557,

567

(4th

Cir.

See United States v. Jeffers, 570 F.3d

2009).

To

show

plain

error,

Ali

must

“identify an error that is plain and that substantially affects
[her] rights.”

Id.

We consider each argument in turn.
1.

Ali first argues that the evidence presented to the jury
showed only that she and Martin had a buyer/seller relationship.
She contends the evidence was insufficient to connect her to the
conspiracy and thus was insufficient to support her conviction
on Count One.
In

United

States

v.

Strickland,

245

F.3d

368

(4th

Cir.

2001), this court laid out what the government must prove to
connect

First,

the

government must prove the existence of the drug conspiracy.

Id.

at 385.

an

individual

to

a

drug

conspiracy.

“Once a conspiracy has been proved, the evidence need

only establish a slight connection between any given defendant
and the conspiracy to support conviction.”

Id.

The government

can establish such a connection by showing that a defendant had
knowledge

of

the

conspiracy

and

participated in the conspiracy.
12

Id.

knowingly

and

voluntarily

This connection need only

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be “slight” because “a defendant need not have knowledge of all
of . . . the details of the conspiracy, and . . . may be
convicted despite having played only a minor role.”

Id.

Ali does not contend that the government failed to prove
the existence of the drug conspiracy described in Count One.

We

therefore focus on Ali’s connection to that conspiracy.

The

evidence,

the

when

viewed

in

the

light

most

favorable

to

government, showed that Ali had frequent contact with Martin, on
the order of several times daily, and discussed with Martin the
arrests of other coconspirators.

It was reasonable to infer

from this evidence that Ali had knowledge of the conspiracy.
The evidence also showed that Ali held drug proceeds for
Martin and aided in the relocation of Martin’s drug business
when

Martin

feared

detection.

From

this

evidence,

it

was

reasonable to infer that Ali knowingly and voluntarily played at
least a minor role in the drug conspiracy.

See United States v.

Collazo,

1984)

knowing
shown

732
and

by

F.2d

1200,

voluntary

1205

(4th

participation

circumstantial

evidence

Cir.
in
such

a

(holding

conspiracy
as

[a

that

“can

be

defendant’s]

relationship with other members of the conspiracy, the length of
this association, [the defendant’s] attitude, conduct, and the
nature of the conspiracy”).

Accordingly, we conclude that the

evidence presented at trial was sufficient to support the jury’s

13

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conclusion

that

Date Filed: 11/02/2011

Ali

was

involved

Page: 14 of 25

in

the

drug

distribution

conspiracy as more than a mere purchaser of drugs.
2.
Ali alternatively argues that, although she was charged in
Count One for participating in a single, large conspiracy, the
evidence

established

two

separate

conspiracies:

one

uncharged

conspiracy between only Ali and Martin, and a larger conspiracy
charged in Count One between Martin and the other co-defendants.
Ali

contends

that

this

created

a

fatal

variance

between

the

indictment and the proof at trial and that the district court
compounded this variance by failing to instruct the jury that it
must acquit her if it found two distinct conspiracies.
A fatal variance occurs “[w]hen the government, through its
presentation of evidence and/or its argument, or the district
court, through its instructions to the jury, or both, broadens
the

bases

for

conviction

beyond

those

charged

in

the

indictment.”

United States v. Randall, 171 F.3d 195, 203 (4th

Cir. 1999).

To determine if a variance occurred between Count

One and the evidence as it relates to Ali, we must compare that
evidence to what is necessary to prove a single conspiracy.
In United States v. Johnson, 54 F.3d 1150 (4th Cir. 1995),
this court explained that “[a] single conspiracy exists when the
conspiracy had the same objective, it had the same goal, the
same nature, the same geographic spread, the same results, and
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the same product.”

Date Filed: 11/02/2011

Page: 15 of 25

Id. at 1154 (internal quotations omitted);

see also Jeffers, 570 F.3d at 568 (“[A] drug conspiracy may
‘result[] in only a loosely-knit association of members linked
only

by

their

mutual

interest

in

sustaining

the

overall

enterprise of catering to the ultimate demands of a particular
drug consumption market.’” (quoting United States v. Banks, 10
F.3d 1044, 1054 (4th Cir. 1993)).
The

record

is

sufficient

to

show

that

Ali

knew

of

the

existence of the larger conspiracy and knowingly participated in
it.

As noted above, Ali’s discussion with Martin of the arrests

of other members of the conspiracy demonstrated her knowledge of
the larger conspiracy in which Martin was involved.

As also

noted above, Ali assisted Martin by helping Martin relocate her
drug business and by safeguarding Martin’s drug proceeds.
In

sum,

the

evidence

showed

Ali

knew

of

the

larger

conspiracy in which Martin was involved and helped Martin in her
attempt

to

avoid

conspiracy--by

detection--and

relocating

the

thus

drug

aided

business.

that

larger

Given

the

inferences to be drawn in favor of the government, this evidence
was sufficient to demonstrate that Ali was knowingly pursuing
the same objective as all other members of the drug trafficking
conspiracy charged in Count One: aiding drug distribution in the
Washington,

DC,

area.

Thus,

there

15

was

no

variance

between

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either

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the

proof

Date Filed: 11/02/2011

at

trial

or

the

Page: 16 of 25

jury

instruction

and

the

conduct charged in Count One.
C.
We next consider Dobie’s challenge to the sufficiency of
the evidence supporting her conviction on Count Sixty-One for
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c).

As we have set out,

on a sufficiency challenge, our review is limited to determining
whether the evidence, viewed in the light most favorable to the
government and with all reasonable inferences drawn in favor of
the

government,

supports

a

rational

determination

of

guilty

beyond a reasonable doubt.
Dobie begins by correctly noting that Count Sixty-One lists
the conspiracy charged in Count One as the predicate offense for
the

violation

of

§

924(c).

Dobie

does

not

challenge

her

conviction on Count One and does not dispute that her possession
of the firearms was contemporaneous with the drug conspiracy
charged

in

government

Count
failed

One.
to

Dobie
put

insists,

forward

proof

however,

that

the

to

that

her

show

possession of the firearms was in furtherance of the conspiracy
charged in Count One.

Because authorities found the firearms

near drugs, viz. 11.65 grams of heroin, Dobie assumes that to
show that her possession of the firearms was in furtherance of
the conspiracy charged in Count One, the government was required
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to prove that the drugs found with the firearms were connected
to that drug conspiracy.
claims

that

she

was

Proceeding from this assumption, Dobie

involved

in

multiple

drug

conspiracies

beyond the one charged in Count One and that the government
failed to provide sufficient evidence to show the heroin found
with the firearms was a part of the predicate conspiracy charged
in Count One rather than one of the other conspiracies.

Without

this connection, Dobie argues, the government could not show
that her possession of the firearms was in furtherance of the
conspiracy charged in Count One.
The government responds to Dobie’s argument by proceeding
from the same assumption that the nexus between the firearms and
the

conspiracy

charged

in

Count

One

must

be

established

by

connecting the heroin found in proximity to the firearms to the
drug

conspiracy

charged

in

Count

One.

To

do

this,

the

government relies on a recording of a phone call between Dobie
and Martin--the leader of the conspiracy charged in Count One-that took place three weeks before the firearms and heroin were
seized.

In this phone call, Martin sought heroin for another

person and inquired whether Dobie had any in her possession.
Dobie responded that while she recently had as much as 50 grams
of heroin in her possession, she had sold some and at the time
of the call had only “10 or 15” grams remaining.
Dobie and Martin then negotiated over the price.
17

J.A. 1052.

The government

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argues

Document: 348

that

Date Filed: 11/02/2011

because

the

amount

of

Page: 18 of 25

heroin

seized

at

Dobie’s

residence was 11.65 grams, and three weeks prior to this seizure
Dobie was discussing selling through Martin “10 or 15” grams of
heroin, a reasonable finder of fact could rationally conclude
that the heroin found at Dobie’s residence was the same heroin
discussed in the phone call.

The finder of fact could thus

connect the heroin to the conspiracy charged in Count One.

With

this connection made, it is argued, a sufficient nexus exists
between the firearms found in proximity to the heroin and the
conspiracy charged in Count One.
Dobie does not challenge the possible existence of this
connection but instead argues that to find such a connection
would require a jury to pile inference upon inference, and thus,
such a connection is insufficient to support a finding of guilty
beyond a reasonable doubt.
Although the government’s argument is tenable, we need not
reach

it

to

find

the

evidence

conviction to be sufficient.
factual

determination

underlying

Dobie’s

924(c)

We have held that, in making the

whether

a

defendant’s

possession

of

a

firearm was “in furtherance” of the predicate drug trafficking
crime, under § 924(c), “the fact finder is free to consider the
numerous ways in which a firearm might further or advance” the
conspiracy,

including

by

providing

transactions and helping defend turf.
18

security

during

drug

United States v. Lomax,

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Document: 348

Date Filed: 11/02/2011

293 F.3d 701, 705 (4th Cir. 2002). 2

Page: 19 of 25

Indeed, in Jeffers, we found

sufficient evidence to uphold a § 924(c) conviction where no
firearms

or

together.
the

drugs

were

seized

570 F.3d at 565-66.

evidence

showed

that

from

the

defendant,

let

alone

We upheld the conviction because

the

defendant

possessed

various

firearms at different points during the time he participated in
the conspiracy and also showed that the defendant was willing to
use a firearm in self-defense should it become necessary.

Id.

at 565-66.
Applying

our

precedent,

we

conclude

that

the

evidence

presented by the government is sufficient to sustain Dobie’s §
924(c) conviction.

Dobie does not deny that she possessed the

firearms, or that she was involved in the conspiracy charged in
Count

One,

conspiracy.

or

that

she

possessed

the

firearms

during

that

Once these facts were established, the jury was

“free to consider the numerous ways in which” Dobie’s firearms
could have furthered this conspiracy.

It would be rational for

a

that

juror

to

conclude,

for

example,

the

possession

of

firearms by some of its members made the conspiracy, as a whole,

2

As Lomax relates to Dobie’s and the government’s
arguments, it stands for the proposition that while evidence
showing that a firearm possessed by a defendant was found near
drugs involved in the predicate offense may be sufficient to
sustain a § 924(c) conviction, 293 F.3d at 705, it is not
necessary.

19

Appeal: 07-4059

more

Document: 348

secure.

participated
Given

the

Date Filed: 11/02/2011

In
in

addition,

the

dangers

the

conspiracy
facing

a

Page: 20 of 25

evidence

as

a

showed

retail

street-level

that

Dobie

of

drugs.

dealer

drug

dealer,

it

is

rational to believe that her possession of the firearms aided
her

in

this

enterprise.

Under

the

deferential

standard

of

review we accord jury findings, there was sufficient evidence
that Dobie’s possession of the firearms furthered the goals of
the conspiracy as necessary to support a § 924(c) conviction.
D.
We next consider Dobie’s challenge to her sentence for her
conviction on Count One.

Review of any sentence proceeds in two

steps.

determine

First,

we

must

whether

the

district

court

committed any procedural error, such as improperly calculating
the guidelines range or failing to adequately explain the chosen
sentence.
2009).

United States v. Carter, 564 F.3d 325, 328 (4th Cir.

If we conclude that the district court has not committed

procedural error, “we consider the substantive reasonableness of
the

sentence

imposed

under

an

abuse-of-discretion

standard.”

Id. (internal quotations omitted).
As

relevant

to

this

appeal,

at

her

sentencing

hearing,

Dobie requested two downward adjustments to her offense level
for Count One.

Dobie requested a “minimal role” reduction of

four points or, alternatively, a “minor role” reduction of two

20

Appeal: 07-4059

Document: 348

points. 3

Date Filed: 11/02/2011

Page: 21 of 25

The relevant portion of the sentencing hearing begins

with the district court stating, “In this case I conclude that
[Dobie] is not entitled to a reduction [f]or a mitigating role.” 4
J.A.

2954.

The

district

court

proceeds

from

this

general

statement to reject Dobie’s “argument in support of a four level
reduction” because “it is clear that Ms. Dobie obtained drugs
from Ms. Martin . . . for resale, and I conclude that she’s not
entitled to a reduction for a minimal role.”

J.A. 2954-55.

Thus, the district court rejected Dobie’s request for a minimal
role

adjustment

rejected

Dobie’s

but

at

request

no
for

point
a

specifically

minor

role

addressed

adjustment.

or
The

district court went on to calculate an offense level of 28 for
Count One.

This, combined with a criminal history category of

V,

a

yielded

guidelines

range

of

130

to

162

months.

The

district court sentenced Dobie to 146 months’ imprisonment on
Count One.

3

Section 3B1.2 of the United States Sentencing Guidelines
describes these adjustments.
4

The court reporter transcribed the district court as
saying, “not entitled to a reduction or a mitigating role”
(emphasis added). Based on the context of the district court’s
consideration, we believe this to be a scrivener’s error. See,
e.g., J.A. 2953-54 (quoting the district court as saying Dobie
“also contends there should be an adjustment for a mitigating
role” (emphasis added)).

21

Appeal: 07-4059

Document: 348

Date Filed: 11/02/2011

Page: 22 of 25

Dobie argues that the district court committed procedural
error

by

failing

to

consider

her

request

for

a

minor

role

adjustment in calculating her sentencing guidelines range.
In Carter, this court held that a district court commits
procedural error requiring remand when it fails to justify an
aspect

of

a

rationale.”
failed

to

Dobie’s
vacate

defendant’s
564

F.3d

provide

request
Dobie’s

an

for

sentence

at

“with
Here,

328-29.

an
the

individualized

a

minor

sentence

as

role
to

individualized
district

rationale

adjustment.

Count

One

and

for

court

rejecting

Therefore,
remand

to

we
the

district court for resentencing for the purpose of considering
Dobie’s request for a minor role adjustment.
E.
We next consider Whiting’s argument that the information
filed

by

the

government

advising

Whiting

that

it

would

be

pursuing an enhanced sentence pursuant to 21 U.S.C. § 841 failed
to provide him adequate notice as required by 21 U.S.C. § 851.
We

review

de

novo

questions

U.S.C. § 851 notice.

regarding

the

adequacy

of

a

21

See United States v. Ladson, 643 F.3d

1335, 1341 (11th Cir. 2011).
As it relates to Whiting’s sentence for his conviction on
Count One, 21 U.S.C § 841 provides that anyone so convicted
after “two or more prior convictions for a felony drug offense
have become final, . . . shall be sentenced to a mandatory term
22

Appeal: 07-4059

Document: 348

Date Filed: 11/02/2011

of life imprisonment.”

Page: 23 of 25

21 U.S.C. § 841(b)(1)(A).

A “felony

drug offense” is “an offense that is punishable by imprisonment
for more than one year under any law of the United States or of
a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs.”

Id. at § 802(44).

Section 851

establishes a prerequisite for such enhancement, requiring the
government, prior to trial, to file an information “stating in
writing the previous convictions to be relied upon.”

Id. at

§

851(a)(1).
Here, the government filed an information prior to trial
informing

Whiting

that

it

intended

to

rely

on

five

convictions to enhance his sentence pursuant to § 841.

prior
Because

the relevant part of § 841 requires proof of two convictions, we
focus

on

only

information.

two
The

of

the

five

information

convictions

noticed

a

listed

“[c]onviction

in

the

for

a

heroin offense for which [Whiting] was sentenced to 186 months’
incarceration, which was later reduced pursuant via a Rule 35
[sic] to 72 months’ incarceration, in the Eastern District of
Virginia,

Docket

conviction”).

No.

J.A.

94CR00108-101
506.

The

(Ellis,

J.)”

(“Virginia

information

also

noticed

a

“[c]onviction for possession of cocaine in Mexico, Docket Number
153/84 (Chavez, J[.]), on or about February 1, 1986, for which
[Whiting] received a sentence of eight years, three months [sic]
incarceration”

(“Mexico

conviction”).
23

Id.

Attached

to

the

Appeal: 07-4059

Document: 348

Date Filed: 11/02/2011

Page: 24 of 25

information was an uncertified copy of the final judgment from
the Virginia conviction.
Whiting argues that the information filed by the government
failed

to

provide

him

adequate

notice

of

these

convictions

because the information did not come with certified copies of
the records of convictions attached.
For an information to provide adequate notice as required
by § 851, it must contain sufficient information to allow a
defendant an opportunity “to identify [each] prior conviction
and make an informed decision about whether to challenge the
substance of the information.”

United States v. Severino, 316

F.3d 939, 943 (9th Cir. 2003); accord United States v. Beasley,
495 F.3d 142, 149 (4th Cir. 2007) (noting that the purpose of
such an information is to give “the defendant an opportunity to
challenge

the

use

of

sentencing

errors”).

suggestion

that

the

prior

We

have

adequate

convictions
found

notice

no

requires

and

to

authority
the

prevent
for

provision

the
of

certified copies of the judgment.
The information filed by the government contained the date,
docket

number,

judge,

Virginia convictions.
to

allow

Whiting

to

and

sentence

for

both

the

Mexico

and

We conclude that these data were adequate
identify

the

convictions

and

make

an

informed decision about whether to challenge their existence.
Thus, the notice provided by the government satisfied § 851.
24

Appeal: 07-4059

Document: 348

Date Filed: 11/02/2011

Page: 25 of 25

III.
For the foregoing reasons, we affirm the district court in
all respects except as to the denial of Dobie’s request for a
minor

role

adjustment

in

conviction on Count One.

calculating

her

sentence

for

her

We vacate Dobie’s sentence on Count

One and remand to the district court for further proceedings
consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS

25