United States of America v.  OWEN ROBINSON, a/k/a Heavy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4511 
OWEN ROBINSON, a/k/a Heavy,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4518 
KENDALL SCHUYLER, a/k/a Sleepy,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4519 
WILLIAM M. PARROS,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CR-98-259-L)
Argued: October 1, 2004
Decided: December 13, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated by Supreme Court, April 18, 2005

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Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Gary Allen Ticknor, Elkridge, Maryland; Gerald Durand
Glass, Towson, Maryland, for Appellants. Robert Reeves Harding,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: G. Godwin Oyewole, Washington, D.C., for Appellant Rob-
inson. Thomas M. DiBiagio, United States Attorney, Baltimore,
Maryland, for Appellee.
OPINION
KING, Circuit Judge:
Appellants Owen Robinson, Kendall Schuyler, and William Parros
appeal the sentences imposed on them in the District of Maryland
after our remand for re-sentencing in their earlier appeals. United
States v. Johnson, No. 00-4226(L), 2001 WL 1349205 (4th Cir. Nov.
2, 2001) (unpublished). On remand, Robinson and Schuyler were
each re-sentenced to life in prison and Parros was re-sentenced to
thirty years. They now maintain that the district court improperly
postponed their re-sentencing proceedings to await the Supreme
Court’s decision in United States v. Cotton, 535 U.S. 625 (2002), and
that the district court improperly applied the Cotton decision to their
new sentences. As explained below, we affirm.
I.
On November 23, 1999, a jury convicted Oloyede Johnson, Parros,
Alfred Cheese, Clarence Hicks, Schuyler, and Robinson (collectively,
the "Defendants") of various controlled substance offenses, including
conspiracy to distribute such substances in violation of 21 U.S.C. § 846.1
1In our Johnson decision, we recited the factual predicate of the crimes
for which the Defendants were convicted as follows:
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In March and April 2000, they were sentenced to terms ranging from
ten years to life. The Defendants thereafter appealed their convictions
and sentences to this Court, contending, inter alia, that their sentences
had been imposed in contravention of Apprendi v. New Jersey, 530
U.S. 466 (2000).2 Because the Defendants had not raised any
Apprendi challenges in the district court, we reviewed those claims
for plain error.
In our decision in Johnson, issued on November 2, 2001, we
rejected the Apprendi challenges of Johnson, Cheese, and Hicks. On
the other hand, we deemed the Apprendi challenges of Robinson,
Schuyler, and Parros (the "Appellants") to be valid, vacated their sen-
tences,3 and remanded for re-sentencing. Johnson, 2001 WL 1349205,
at *6. Relying on our decision in Cotton, 261 F.3d 397 (4th Cir.
2001), we ruled that the failure of the Johnson indictment to allege
a specific threshold drug quantity constituted reversible error as to the
Appellants that should be noticed on appeal. Johnson, 2001 WL
1349205, at *3. Following our decision in Johnson, the Government
Appellants [the "Defendants" in this proceeding] are former
members of a drug trafficking conspiracy based predominantly
in the O’Donnell Heights area of southeast Baltimore. That con-
spiracy, captained by Antonio Howell, distributed primarily
cocaine base, but also sold powder cocaine, heroin, and mari-
juana. At the height of the conspiracy, Appellants required
weekly trips to New York to obtain kilogram quantities of pow-
der cocaine, which they would cook into cocaine base, in order
to supply their operation. The volume and profit of the organiza-
tion was matched by its ruthlessness, however, as at least two
individuals were killed as part of the organization’s attempt to
secure control over its areas of distribution.
Johnson, 2001 WL 1349205, at *1.
2In Apprendi, the Supreme Court held that any factor, other than a
prior conviction, that "increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." 530 U.S. at 490.
3The Appellants’ initial sentences were life imprisonment for Robin-
son and Schuyler, and thirty years for Parros, the same as those imposed
by the court on remand.
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neither moved this Court to stay the mandate, sought en banc review,
nor petitioned the Supreme Court for certiorari. On November 26,
2001, we issued our mandate in Johnson.4
Less than two months later, on January 4, 2002, the Supreme Court
granted certiorari in Cotton, 534 U.S. 1074 (2002), the decision on
which the Johnson panel had primarily relied in awarding relief to the
Appellants. In granting certiorari in Cotton, the Court agreed to
address the question of "whether the omission from a federal indict-
ment of a fact that enhances the statutory maximum sentence justifies
a court of appeals’ vacating the enhanced sentence, even though the
defendant did not object in the trial court." Cotton, 535 U.S. at 627.
On January 22, 2002, pursuant to Johnson, the re-sentencing pro-
ceedings of the Appellants were scheduled by the district court for
February 28, 2002. The February 28 proceedings were postponed,
however, and on March 13, 2002, the district court stayed the re-
sentencing proceedings pending the Court’s decision in Cotton.5 The
Supreme Court rendered its Cotton decision on May 20, 2002, revers-
ing our earlier decision in Cotton. 535 U.S. 625 (2002). In Cotton, the
Court ruled that an indictment rendered defective by Apprendi does
not require vacation of the resulting sentence if evidence against the
defendant is "overwhelming" and "essentially uncontroverted." Id. at
633 (citation and internal quotation marks omitted).
On July 3, 2002, the Government, relying on the Supreme Court’s
Cotton decision, moved this Court to recall the mandate in Johnson.
This motion was denied on October 8, 2002. See No. 00-4227(L) (4th
Cir. Oct. 8, 2002).6 The district court conducted re-sentencing pro-
4Under the applicable rule, "the mandate consists of a certified copy
of the judgment, a copy of the court’s opinion, if any, and any direction
about costs." Fed. R. App. P. 41(a). Pursuant to our mandate in Johnson,
we remanded "for re-sentencing consistent with this opinion." 2001 WL
1349205, at *6.
5The Appellants assert that, on February 28, 2002, the Government
made an oral request to the district court for a stay of re-sentencing pend-
ing the outcome of Cotton. This oral request was followed by a written
request, which was granted on March 13, 2002.
6Johnson was the lead defendant in the Appellants’ initial appeal to
this Court. The Government’s unsuccessful effort to recall our Johnson
mandate related only to the Appellants.
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ceedings of the Appellants on May 23, 2003, and it re-sentenced the
Appellants to the same sentences it had originally imposed. During
the re-sentencing proceedings, the court found, as to Robinson, that
"there was overwhelming and essentially uncontroverted evidence
that the conspiracy within Mr. Robinson’s reasonable contemplation
involved the distribution of fifty grams or more of crack cocaine."
J.A. 282. In the re-sentencing of Schuyler, the court found that the
evidence "overwhelmingly established that the conspiracy, willingly
joined by Mr. Schuyler[,] was distributing more than 1.5 kilograms
of crack cocaine." J.A. 266. In re-sentencing Parros, the court found
that the "evidence was so strong and so overwhelming at trial that the
quantity evidence" that fifty grams of crack cocaine was involved
"cannot legitimately be controverted." J.A. 221.
Timely notices of appeal were thereafter filed by the Appellants.
We possess jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291.
II.
A district court’s decision to grant or deny a continuance is
reviewed for abuse of discretion. United States v. Hoyte, 51 F.3d
1239, 1245 (4th Cir. 1995). We review for plain error any challenge
to a conviction or sentence which was not raised in the district court,
pursuant to United States v. Olano, 507 U.S. 725 (1993). See United
States v. Angle, 254 F.3d 514, 517 (4th Cir. 2001).7 We review a dis-
trict court’s findings of fact on sentencing issues for clear error.
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).
III.
In these consolidated appeals, the Appellants raise two issues. First,
they maintain that, under the "mandate rule," the district court lacked
7The plain error mandate of Olano is satisfied if: (1) there was error;
(2) it was plain; and (3) it affected the defendants’ substantial rights. 507
U.S. at 732. If these conditions are met, we may then exercise our discre-
tion to notice the error, but only if it "seriously affects the fairness, integ-
rity or public reputation of judicial proceedings." Id. (internal quotation
marks omitted).
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the authority to continue the re-sentencing proceedings initially
scheduled for February 28, 2002. Second, they contend that the dis-
trict court erred in applying Cotton to their re-sentencings and that the
evidence against them was neither "overwhelming" nor "essentially
uncontroverted." As explained below, we reject these contentions.
A.
Appellants first maintain, on the basis of the "mandate rule," that
the district court did not possess the authority to continue the re-
sentencing proceedings it had initially scheduled for February 28,
2002. Pursuant to the mandate rule, when an appellate court remands
an appeal for further proceedings, "a district court must, except in rare
circumstances, implement both the letter and spirit of the mandate."
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotation
marks omitted). It is elementary, however, that a trial court possesses
broad discretion on matters of scheduling and, more specifically, on
matters relating to granting or denying continuances. Morris v.
Slappy, 461 U.S. 1, 11 (1983); United States v. Speed, 53 F.3d 643,
644 (4th Cir. 1995).
The district court’s decision to continue the re-sentencing proceed-
ings of the Appellants was not a departure from our mandate in John-
son because, put most simply, the mandate specified no particular
time for these re-sentencings to occur. The mandate merely remanded
the proceedings of the Appellants "for re-sentencing consistent with
this opinion." Johnson, 2001 WL 1349205, at *6. And contrary to the
Appellants’ contention, the Government’s failure to seek a stay of the
Johnson mandate, seek en banc review, or petition for certiorari, does
not impact this conclusion. Indeed, the Government could not appro-
priately have moved for a stay of the Johnson mandate, in that the
applicable rules provide such a remedy only when a stay is being
sought in a proceeding for which certiorari is also sought. Fed. R.
App. P. 41(d)(2). When our mandate issued in Johnson, the Supreme
Court had already granted certiorari in Cotton. The issue presented to
the Court in Cotton was identical to the issue asserted by the Appel-
lants in Johnson, and there was no apparent basis for the Government
to have sought certiorari in Johnson. In such circumstances, the con-
tention that the district court lacked the authority to continue the re-
sentencing proceedings is patently without merit.
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B.
The Appellants’ second contention on appeal is that the district
court, on remand, erred in applying the Supreme Court’s Cotton deci-
sion in the re-sentencing proceedings of the Appellants. As explained
below, we reject this contention as well.
There are only three narrow situations where a trial court may
depart from the mandate of an appellate court. These limited circum-
stances, the first of which is controlling here, are: "(1) a showing that
controlling legal authority has changed dramatically; (2) that signifi-
cant new evidence, not earlier obtainable in the exercise of due dili-
gence, has come to light; or (3) that a blatant error in the prior
decision will, if uncorrected, result in a serious injustice." Bell, 5 F.3d
at 67 (internal quotation marks omitted). On October 8, 2002, in
denying the Government’s motion to recall the Johnson mandate, we
observed that "under the mandate rule a district court is free to apply
intervening changes in controlling law in considering a case on
remand. Hence, the Supreme Court’s reversal in Cotton does not
necessitate a recall of our mandate." No. 00-4227, at 2 (citing Bell,
5 F.3d at 67).
While the re-sentencing proceedings of the Appellants were pend-
ing on remand to the district court, the Supreme Court’s Cotton deci-
sion altered the controlling principles. Its holding constituted a
dramatic intervening change from our decision in Cotton, and the dis-
trict court was obliged to adhere to the principles enunciated by the
Court.
Next, the Appellants contend that Cotton was misapplied here
because the evidence supporting the drug quantities required for their
enhanced sentences was not "overwhelming" and "essentially uncon-
troverted." As we have pointed out, the indictment failed to specify
any drug quantities in the charges lodged against the Appellants.
Because the Appellants did not object on this point, however, we
review this contention for plain error only. In that respect, the Gov-
ernment concedes that the Appellants satisfy the first two prongs of
Olano’s plain error analysis, i.e., that (1) there was error, and (2) such
error was plain. The Government does not take a position with respect
to Olano’s third prong, assertedly because the Court in Cotton
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declined to address this prong. See Cotton, 535 U.S. at 632-33. The
Government contends that, in any event, the evidence of drug quanti-
ties utilized in the re-sentencing proceedings was, like that in Cotton,
overwhelming and essentially uncontroverted.
Notwithstanding the Government’s reluctance, we have already
determined, in their earlier appeals, that the Appellants satisfy the
third prong of the Olano plain error analysis. Johnson, 2001 WL
1349205, at *3. Even though the Appellants’ substantial rights were
violated, however, the presence of plain error does not seriously affect
the "fairness, integrity or public reputation of judicial proceedings" if
the evidence of drug quantity required to increase their sentences
beyond the statutory maximums was "overwhelming" and "essentially
uncontroverted." Cotton, 535 U.S. at 633 (internal quotation marks
omitted).
In this proceeding, the requirements of Cotton and Olano are satis-
fied on this final point. In the re-sentencing proceedings of the Appel-
lants, the court repeatedly found that the evidence was both
overwhelming and essentially uncontroverted that the conspiracy
offense for which they were convicted involved at least fifty grams
of cocaine base. During the re-sentencing proceedings of Robinson,
the court found that "there was overwhelming and essentially uncon-
troverted evidence that the conspiracy within Mr. Robinson’s reason-
able contemplation involved the distribution of fifty grams or more of
crack cocaine." J.A. 282. In re-sentencing Parros, the district court
similarly found that "[i]t would simply be impossible . . . to conclude
that the amount reasonably foreseeable to Mr. Parros was less than
fifty grams." J.A. 221. On Parros, the court further found that "the
evidence was so strong and so overwhelming at trial that the quantity
evidence cannot legitimately be controverted." Id. And in re-
sentencing Schuyler, the court found that the evidence "overwhelm-
ingly established that the conspiracy, willingly joined by Mr. Schuy-
ler[,] was distributing more than 1.5 kilograms of crack cocaine," J.A.
266, and the court plainly indicated that its findings as to Schuyler
were identical to those it had already made with respect to Parros, see
J.A. 265.
In sum, we have carefully reviewed the record on the drug quantity
evidence with respect to the re-sentencing proceedings, and we are
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unable to conclude that the findings of the district court are clearly
erroneous. Indeed, our independent review of the evidence compels
us to reach the same conclusions enunciated by the district court, that
the evidence supporting the Appellants’ convictions was both over-
whelming and essentially uncontroverted. As a result, the Appellants’
contention that the court erred in its application of Cotton in their re-
sentencing proceedings must also be rejected.
IV.
Pursuant to the foregoing, we affirm the Appellants’ convictions
and sentences.
AFFIRMED
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