US v. Wayne Lampkin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00003-JFM-23 Copies to all parties and the district court/agency. [999323133].. [13-4013]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4013

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE LAMPKIN, a/k/a Alvin Smiley,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:11-cr-00003-JFM-23)

Submitted:

March 20, 2014

Decided:

March 26, 2014

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marc Gregory Hall, LAW OFFICE OF MARC G. HALL, P.C., Rockville,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, Ayn B. Ducao, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
After a jury trial, Wayne Lampkin was convicted of
conspiracy to possess with intent to distribute at least one
kilogram of heroin.

See 21 U.S.C. § 846 (2012).

The district

court vacated that part of the jury’s finding that Lampkin was
responsible for one kilogram of heroin and determined that it
was

reasonably

foreseeable

to

Lampkin

that

the

conspiracy

involved at least 100 grams but less than 400 grams of heroin.
Lampkin was originally sentenced to 120 months’ imprisonment,
the statutory minimum sentence after the Government filed notice
under 21 U.S.C. § 851 (2012) that it was going to seek enhanced
penalties

based

successfully
court.

had

on

a

the

prior

felony

predicate

conviction.

conviction

vacated

Lampkin
by

state

His appeal was sent back to the district court for

resentencing due to the fact that he no longer had a predicate
conviction that made him eligible for the increased statutory
sentence.
months’

On

remand,

imprisonment

the
and

court
four

sentenced
years’

Lampkin appeals, raising several issues.
Lampkin

argues

that

the

Lampkin

supervised

to

sixty

release.

We affirm.
district

permitting evidence of a prior drug conviction.

court

erred

We review a

district court’s determination of the admissibility of evidence
under Rule 404(b) for abuse of discretion.
Queen,

132

F.3d

991,

995

(4th
2

Cir.

1997).

United States v.
An

abuse

of

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discretion occurs only when “the trial court acted arbitrarily
or

irrationally

in

admitting

evidence.”

United

States

v.

Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation
marks omitted).

We agree with the Government that there is no

record Lampkin ever objected to the Government’s motion to admit
the evidence.

Thus, review is for plain error.

To establish

plain error, a defendant has the burden of showing:

(1) that an

error was made; (2) that the error was plain; and (3) that the
error

affected

his

substantial

rights.

United

States

v.

Carthorne, 726 F.3d 503, 510 (4th Cir. 2013), cert. denied, __
U.S. __, 2014 WL 684378 (2014).
After reviewing the record, we conclude that there was
no plain error.
Lampkin’s
probative

The evidence was relevant toward the issue of

knowledge
value

and

of

intent.

the

We

evidence

also
was

conclude
not

that

the

outweighed

by

substantial prejudice.
Lampkin also argues that there were so many errors
with the transcripts of the monitored telephone calls that the
jury should not have been able to use the transcripts while
listening to the telephone calls.

A district court’s decision

to allow the jury to use transcripts while listening to tape
recorded telephone calls is reviewed for abuse of discretion.
United States v. Brandon, 363 F.3d 341, 343-44 (4th Cir. 2004).
We have reviewed the record and conclude there was no abuse of
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discretion.

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the jury.

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The district court gave a limiting instruction to
We also note that there was support for the accuracy

of the transcripts.

See United States v. Collazo, 732 F.2d

1200, 1203-04 (4th Cir. 1984).
Lampkin

also

argues

that

the

district

court

erred

allowing a law enforcement investigator to give expert testimony
regarding

the

meaning

defendant

and

telephone

calls.

of

others
We

certain

that

coded

were

review

a

captured
district

decisions for abuse of discretion.

to

harmless

error

on

used
the

court’s

by

the

recorded

evidentiary

United States v. Johnson,

617 F.3d 286, 292 (4th Cir. 2010).
subject

language

review,

Evidentiary rulings are
and,

in

order

to

find

a

district court’s error harmless, we “need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.”
After

reviewing

the

record,

Id.

including

the

expert

testimony, we conclude that the district court did not abuse its
discretion.
Also,

Lampkin

claims

that

the

evidence

was

insufficient to establish that he knowing and voluntarily joined
a drug conspiracy.

We review de novo the sufficiency of the

evidence supporting a conviction.
F.3d

129,

137

(4th

Cir.

2013).
4

United States v. McLean, 715
In

assessing

evidentiary

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sufficiency, we must determine whether, viewing the evidence in
the light most favorable to the government and accepting the
factfinder’s

determinations

of

credibility,

the

verdict

is

supported by substantial evidence — that is, “evidence that a
reasonable

finder

of

fact

could

accept

as

adequate

and

sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
(4th

Cir.

2011)

United States v. King, 628 F.3d 693, 700

(internal

quotation

marks

omitted).

“A

defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.”

United States v.

Engle, 676 F.3d 405, 419 (4th Cir.), cert. denied, 133 S. Ct.
179 (2012) (internal quotation marks and citations omitted).
To

prove

a

conspiracy

Government must establish:

under

21

U.S.C.

§

846,

the

“(1) an agreement between two or

more persons to engage in conduct that violates a federal drug
law,

(2)

the

defendant’s

knowledge

of

the

conspiracy,

and

(3) the defendant’s voluntary participation in the conspiracy.”
United States
2001).
makes

v.

Strickland,

245

F.3d

368,

384-85

(4th

Cir.

The underlying drug law at issue, 21 U.S.C. § 841(a)(1),
it

unlawful

to

“possess

with

intent

to

manufacture,

distribute, or dispense a controlled substance.”
We

conclude

that

support the conviction.

there

was

sufficient

evidence

to

The record shows that Lampkin bought
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heroin from a dealer, that he used coded language and vague
conversation to arrange for drug transactions, that he attempted
to arrange for at least one other to purchase drugs and that he
knew

that

others

were

involved

and

that

such

conduct

was

illegal.
Lampkin also takes issue with the jury instruction.
He claims that the district court erred by denying his request
for a buyer-seller instruction.

“The decision to give or not to

give a jury instruction is reviewed for an abuse of discretion.”
United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006)
(internal quotation marks omitted).

Furthermore, we “review a

jury instruction to determine whether, taken as a whole, the
instruction fairly states the controlling law.”
quotation marks omitted).

Id. (internal

We conclude that there was no error

because there was evidence that the relationship between Lampkin
and his supplier went beyond a mere drug transaction.

United

States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).
Regarding

the

jury

instruction,

Lampkin

argues

that

the district court did not instruct the jury that in order to
find him guilty, it must be found beyond a reasonable doubt that
he had knowledge of the conspiracy’s existence.
object

and

Robinson,

review

627

F.3d

is
941,

for

plain

953-54

error.

(4th

Cir.

Lampkin did not

United
2010)

States

(to

preserve

issue, defendant must object prior to jury deliberations).
6

v.

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entirety

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have

and

reviewed

conclude

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the

that

jury

the

instructions

district

court

in

their

sufficiently

instructed the jury that it had to find beyond a reasonable
doubt that Lampkin participated in the conspiracy with knowledge
of its unlawful purpose and of at least some of its objectives.
Thus, there was no plain error.
Lampkin raises two issues regarding sentencing.

He

contends that the district court erred concluding that it was
reasonably foreseeable to him that the conspiracy involved at
least 100 grams of heroin but less than 400 grams.

He also

claims that the court erred increasing his offense level by one
under

USSG

§ 2D1.2

because

part

of

the

conspiracy

occurred

the

quantity

within 1000 feet of a school.
“[T]he

government

must

prove

drug

attributable to a particular defendant by a preponderance of the
evidence.”
2011).

United States v. Bell, 667 F.3d 431, 441 (4th Cir.

drug

In terms specific to a § 846 conspiracy conviction, the
quantity

attributable

to

a

defendant

is

the

quantity

involved in the conspiracy that was reasonably foreseeable to
the

defendant.

See

USSG

§

1B1.3(a)(1);

United

Randall, 171 F.3d 195, 210 (4th Cir. 1999).
district

court’s

calculation

of

the

States

v.

We review the

quantity

of

drugs

attributable to a defendant for sentencing purposes for clear
error.

United States v. Crawford, 734 F.3d 339, 342 (4th Cir.
7

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2013), cert. denied, __ U.S. __, 2014 WL 414225 (2014); see also
United

States v.

Under

this

finding

Perez,

standard,

only

if

609

F.3d

are

we

will

612

reverse

we

609,

the

“left

with

the

(4th

Cir.

district

definite

conviction that a mistake has been committed.”

2010).
court’s

and

firm

Crawford, 734

F.3d at 342 (internal quotation marks and citation omitted).
We

conclude

that

the

Government

showed

by

a

preponderance of the evidence that it was reasonably foreseeable
to Lampkin that the conspiracy involved 100 grams or more of
heroin.
Under USSG § 2D1.2(a)(2), if a person is convicted of
21 U.S.C. § 860, one level is added to the base offense level
determined under USSG § 2D1.1.
case

in

which

the

The guideline “applies only in a

defendant

is

convicted

of

a

statutory

violation of drug trafficking in a protected location . . .”
Id.,

(cmt.

instruct

n.1).

the

We

jury

note

on

the

that

the

elements

district
of

court

§ 860.

did

not

Section

860

requires enhanced penalties for anyone who violates 21 U.S.C.
§ 841 and possesses with intent to distribute narcotics within
1000 feet of a school.

The defendant is subjected to twice the

maximum sentence authorized by § 841(b) and twice any term of
supervised
sentence

release.

of

one

year

authorized by § 841(b).

The

statute

unless

a

also

greater

authorizes
minimum

a

minimum

sentence

is

However, the one level enhancement does
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not apply if the jury was never asked to find whether beyond a
reasonable doubt, part of the conspiracy occurred within 1000
feet of a school.

See United States v. Martinez, 430 F.3d 317,

340-41 (6th Cir. 2005).

Section 860 is a distinct offense that

needs to be submitted to a jury.

See United States v. Parker,

30 F.3d 542, 553 (4th Cir. 1994); United States v. Osborne, 673
F.3d 508, 511-13 (6th Cir.) (collecting cases), cert. denied,
133 S. Ct. 205 (2012).

There is no indication that Lampkin

objected to the court’s failure to instruct the jury on the
elements of § 860.

Thus, review is for plain error.

See United

States v. Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010).
Even

if

there

was

error,

we

find

that

Lampkin’s

substantial rights were not affected because at resentencing he
received the statutory minimum five year sentence, which was
below

the

Guidelines

and

the

agreed

we

affirm

the

upon

minimum

statutory

sentence.
Accordingly,
We

dispense

contentions

with
are

oral

argument

adequately

conviction

because

presented

in

and

sentence.

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

9