United States of America v. JERMAINE KING a/k/a Waters Jermaine King

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3109
UNITED STATES OF AMERICA
v.
JERMAINE KING
a/k/a Waters
Jermaine King,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-CR-313-01)
District Court Judge: Honorable J. Curtis Joyner
Argued March 29, 2004
Before: ALITO, FISHER, and ALDISERT, Circuit Judges.
(Opinion Filed: April 7, 2004)
ROBERT E. MADDEN
Law Offices of Robert E. Madden
1401 Walnut Street
Suite 300
Philadelphia, PA 19102

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Counsel for Appellant
KATHY A. STARK (Argued)
Suite 1250
Office of the United States
Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
PER CURIAM:
As we write only for the parties involved, we will not restate the evidence below.
We find King’s claims to be without merit and affirm the District Court’s ruling and
sentence.
First, the District Court properly increased King’s sentence based on his significant
leadership role in the conspiracy and the firearm that was used in the conspiracy. As this
Circuit has already held that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not
apply unless the sentence imposed exceeds the statutory maximum for the conviction, we
reject King’s argument that Apprendi applies to his sentence. See, e.g., United States v.
Williams, 235 F.3d 858, 862-863 (3d Cir. 2000) cert. denied 534 U.S. 818 (2001); United
States v. Cepero, 224 F.3d 256, 267 fn. 5 (3d Cir. 2000)(en banc) cert. denied 531 U.S.

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1While we believe that the District Court properly used the “preponderance of the
evidence standard,” United States v. Miele, 989 F.2d 659, 663 fn. 3 (3d Cir. 1993), our
holding would be the same even under the “clear and convincing evidence” standard.
United States v. Kikumura, 918 F.2d 1084, 1110-1111 (3d Cir. 1990)
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1114 (2001). We also hold that the District Court was not clearly erroneous1 when it
sentenced King based on his leadership role in the conspiracy. Both witnesses and
telephone and beeper records show King to have been the center of his drug gang.
Furthermore, the District Court was not clearly erroneous when it found that the use or
possession of a firearm in the conspiracy was clearly foreseeable. As the leader of a
sizeable crack cocaine distribution ring, in which two members had already been shot, the
use of a firearm by a member of the conspiracy was more than reasonably foreseeable.
See United States v. Ramos, 147 F.3d 281, 286-287 (3d Cir. 1998); United States v.
Dixon, 982 F.2d 116 (3d Cir. 1992).
Second, we find that the District Court did not abuse its discretion when it
admitted the government’s charts and exhibits summarizing the electronic
communications between the conspirators. See App. A64-A70. The government,
through witnesses and records, was able to properly establish that all of the telephone and
beeper numbers on the charts and exhibits were controlled by King or his associates. See,
e.g., Supp. App. at 172-173, 103; 126; 149. Furthermore, the charts and exhibits were
accurately explained by a government witness, see Supp. App. 205-208, and the District
Court did not abuse its discretion in finding them more probative then prejudicial. See

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Federal Rules of Evidence 403 and 1006; United States v. Serafini, 233 F.3d 758, 768 fn.
14 (3d Cir. 2000).
For the above reasons, we affirm.

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