United States of America v.  CALVIN DOUGLAS DYESS, a/k/a Rawmel, a/k/a Carlos, a/k/a Calcutta

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4665  CALVIN DOUGLAS DYESS, a/k/a
Rawmel, a/k/a Carlos, a/k/a
Calcutta,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4666 
ERIC DEWAYNE SPENCER, a/k/a High
School,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4667 
ORANGE DYESS,
Defendant-Appellant. 

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 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4232 
ORANGE DYESS,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 05-4233  CALVIN DOUGLAS DYESS, a/k/a
Rawmel, a/k/a Carlos, a/k/a
Calcutta,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4234 
ERIC DEWAYNE SPENCER, a/k/a High
School,
Defendant-Appellant. 
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge;
David A. Faber, Chief District Judge.
(CR-99-12)
Argued: February 1, 2006
Decided: February 28, 2007
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Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Niemeyer concurred. Judge Gregory wrote an opinion
dissenting in part and concurring in part.
COUNSEL
ARGUED: Jane Moran, Williamson, West Virginia; Dennis Hugh
Curry, Spencer, West Virginia; Joan Arbogast Mooney, Morgantown,
West Virginia, for Appellants. Michael James Elston, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Paul
J. McNulty, Acting United States Attorney, Kimberly R. Pedersen,
Special Attorney to the Attorney General, Brian D. Miller, Special
Attorney to the Attorney General, Alexandria, Virginia, for Appellee.
OPINION
WIDENER, Circuit Judge:
I.
This criminal appeal involves the actions by William Hart, a police
officer of Charleston, West Virginia, the lead investigator of the drug
conspiracy charged in this case, and Ursala Rader Dyess, a defendant
in the case who was married to another defendant, Calvin Dyess.
Hart’s misconduct was first comprised of an affair with Ursala Rader
Dyess (later Ursala Hart, now Miss Rader), co-defendant and lead
defendant Calvin Dyess’s wife;1 second, Hart’s subornation of perjury
by Miss Rader at the defendants’ sentencing hearing; and third, mis-
appropriation of money taken from the drug-conspiracy and previ-
1Miss Rader filed for divorce from Calvin Dyess shortly after their
arrests.
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ously turned over to Hart by Miss Rader. More narrowly, this case
concerns the appeals by Orange and Calvin Dyess and Eric Spencer
of their convictions relating to the drug conspiracy.
These events related to the Hart-Ursala affair occurred shortly after
the defendants’ arrests, around the time of the issuance of the super-
seding indictment, and continued to go undetected through the defen-
dants’ guilty pleas and sentencings. Hart’s wrongdoings were not
discovered until more than two years later when this case was on
appeal for the first time. The government first heard of these activities
from Miss Rader herself, and, after conducting an investigation, the
Assistant United States Attorney disclosed the misconduct to the
defense. In light of the disclosures, we remanded the case without
decision for whatever proceedings the district court deemed appropri-
ate.2
On remand, defendants Calvin Dyess, Orange Dyess, and Eric
Spencer requested various forms of relief. First, the defendants moved
for an evidentiary hearing to examine the issues raised by the govern-
ment’s disclosures. They also requested, on due process grounds,
vacation of the superseding indictment, withdrawal of their guilty
pleas, and re-sentencing. Additionally, the defendants argued for re-
sentencing on the basis of the United States Supreme Court’s inter-
vening decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).3
Though the district court granted their motion for an evidentiary hear-
ing, it eventually denied all other relief. We affirm the convictions
and sentences.
II.
We begin with a summary of the facts that constitute the basis for
the charges, drawing primarily from the 1999 sentencing hearings fol-
2We have already decided the case of United States v. Bartram, 497
F.3d 307 (4th Cir. 2005), involving a co-conspirator of these defendants
who was not materially affected by the government disclosures of the
affair between Hart and Miss Rader.
3On appeal, the defendants also now object to their sentences based on
United States v. Booker, 543 U.S. 220 (2005).
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lowing the defendants’ guilty pleas.4 For the information concerning
Hart’s conduct and the unusual procedural history of this case, we
refer to several sources: the presentment and report of a grand jury
convened to investigate the misconduct; reports and transcripts pre-
pared by the FBI and released through the government’s disclosures;
and the findings made on remand by the district court following an
evidentiary hearing, United States v. Dyess, Criminal Nos. 2:99-
00012-01, -03, and -12 (S.D. W. Va. filed Feb. 11, 2005).
***
Sometime in 1996 or 1997, an investigation began into a criminal
drug conspiracy in the area of Charleston, West Virginia. The investi-
gation was a cooperative effort between the Charleston Police Depart-
ment’s Metropolitan Drug Enforcement Network Team (Drug Team)
and federal Drug Enforcement Administration (DEA) officials. In
late-December of 1998, several suspects, including these defendants
and Miss Rader, were arrested.5 On January 22, 1999, an indictment
issued charging these and other individuals with various drug and
money-laundering crimes. Less than a month later, a grand jury
handed down a superseding indictment consisting of substantially the
same charges.
Ultimately, Calvin Dyess was indicted for the following: 1) engag-
ing in a continuing criminal enterprise involving the distribution of
cocaine, crack, and marijuana in violation of 21 U.S.C. § 848 (Count
One); 2) conspiring to distribute and possess with intention to distrib-
ute cocaine, crack, and marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count Two); 3) conspiring to launder the pro-
ceeds of such drug sales in violation of 18 U.S.C. §§ 1956(a)(1)(B)(I)
and (h) (Count Three); 4) traveling in interstate commerce to promote
or carry on the drug distribution enterprise in violation of 18 U.S.C.
§ 1952(a)(2) and (3) (Count Four); 5) distributing controlled sub-
stances in violation of 21 U.S.C. § 841(a)(1) (Counts Five, Seven,
4The notation J.A. refers to the three-volume Joint Appendix filed in
1999, while S.J.A. refers to the Supplemental Joint Appendix filed in
2005.
5Miss Rader and Orange Dyess were released on bond, while Calvin
Dyess and Spencer remained in government custody.
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Eight, and Eleven); 6) possessing a cell phone modified to obtain
unauthorized telecommunications services in violation of 18 U.S.C.
§ 1029(a)(7) (Count Six); and 7) possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1) (Count Nine). Defendant Spencer
was also charged with involvement in the drug conspiracy (Count
Two), travel in interstate commerce to facilitate the conspiracy (Count
Four), and possession of crack, cocaine, and marijuana with intent to
distribute (Count Eight). The indictment additionally charged Orange
Dyess with participating in the drug conspiracy.
In December of 1998 and January of 1999, law enforcement
obtained the cooperation of several key indicted individuals, includ-
ing Miss Rader (then Mrs. Dyess). On January 14, 1999, Miss Rader
tendered about $260,000 of Calvin Dyess’s drug proceeds to the gov-
ernment.
On February 2, 1999, Miss Rader notified Hart that she had recov-
ered more drug money and was prepared to surrender it to law
enforcement. Although Miss Rader later stated that, on this occasion,
she recovered and turned over about $80,000, Hart only submitted
$41,630 to the Drug Team’s forfeiture officer. Miss Rader admitted
that Hart allowed her to keep about $20,000 to $27,000 out of the sec-
ond recovered sum.6
Hart’s improper gift of money to Miss Rader presaged their affair.
According to Miss Rader, Hart soon initiated overtly romantic contact
by calling her regularly and bringing gifts to her and her young
daughter. On occasions when Miss Rader expressed fear about testify-
ing against Calvin Dyess, Hart assured her that "he would make sure
[Calvin] would never get out and hurt" her. By March of 1999, Miss
Rader considered she and Hart to be "in a relationship."
The district court set trial for Miss Rader, Calvin Dyess, Spencer,
and Orange Dyess for April 27, 1999. However, on March 30, 1999,
Miss Rader pleaded guilty to one charge of money laundering under
18 U.S.C. § 1956(a)(1)(B)(I) (Count Three). On April 21, Calvin
6Henderson, a partner of Hart on the Drug Team, has since admitted
that such a payment was inconsistent with established Drug Team proce-
dures.
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Dyess tendered a guilty plea to two charges: conspiring to sell drugs
in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count Two) and laun-
dering those proceeds as defined by 18 U.S.C.
§ 1956(a)(1)(B)(i)(Count Three). Spencer also pleaded guilty on the
same day to the drug conspiracy count of 21 U.S.C. §§ 841(a)(1) and
846. On April 28, 1999, shortly before a jury was to be impaneled,
Orange Dyess likewise entered a guilty plea to an information of a
single charge of maintaining a place for the purpose of distributing
and using cocaine, crack cocaine, and marijuana (a crack house), in
violation of 21 U.S.C. § 856.
Presentence investigation reports were prepared as to each defen-
dant prior to the sentencing hearings. Calvin Dyess’s report details his
activities in the drug conspiracy, as well as his subsequent attempts
to launder the profits. The total quantity of drugs directly attributed
to Calvin Dyess is listed as 20 kilograms of cocaine, 80 kilograms of
cocaine base, and 272.16 kilograms of marijuana. The authoring pro-
bation officer recommended upward sentencing adjustments pursuant
to § 3B1.1(a) of the 1998 version of the United States Sentencing
Guidelines (U.S.S.G.) based on his leadership role in a conspiracy
involving five or more persons, as well as enhancements under
§ 3C.1.1 for his attempts to impede the government’s investigation
and prosecution after his arrest,7 and under § 2D1.1(b)(1) for the pres-
ence of firearms during the offense.8 Based on this conduct, the report
recommended a life sentence for the drug conspiracy charge and a
maximum of 20 years for the money laundering offense. The report
did not recommend that Calvin Dyess’s offenses be grouped under
U.S.S.G. §§ 3D1.1 and 3D1.2.
Calvin Dyess objected to the factual bases for the upward sentenc-
ing adjustments. He disclaimed a managerial role in the conspiracy,
7According to the report, Calvin Dyess conversed with Hart and
referred to possible plans by third parties to harm Hart’s young son. Cal-
vin Dyess also discouraged Miss Rader from talking to law enforcement
and intimidated another co-defendant who was cooperating with investi-
gators.
8In January of 1998, authorities searched an apartment where Calvin
Dyess once resided. Firearms, drugs, and other effects belonging to Cal-
vin Dyess were recovered during the search.
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maintaining that all participants were equal partners with none having
authority over the other. An objection was also made to the probation
officer’s failure to group the sentences.
Additionally, Calvin Dyess disputed the report’s appraisal of the
drug amounts and pointed to the testimony of grand jury witnesses
who offered varying estimates of the quantity of each substance
involved. In a contemporaneous amended proffer to the government,
however, Calvin Dyess admitted to purchasing and distributing the
following totals: 12 to 17 kg of cocaine, a hundred pounds of mari-
juana, and 18 to 20 ounces of crack cocaine.
As to Spencer, the presentence report outlines his participation in
trips to other States for the purpose of purchasing "kilogram quanti-
ties of cocaine, cocaine base, and marijuana." The report also notes
the government’s intention to offer evidence demonstrating that "a
total of at least 1.5 kilograms of cocaine base and 272.12 kilograms
of marijuana can be attributed to [Spencer]." After accounting for an
upward sentencing adjustment due to Spencer’s managerial or super-
visory role in the conspiracy, the report finds that Spencer is eligible
for a life sentence, with a mandatory minimum of ten years incarcera-
tion. Spencer objected to the recommendation of an upward sentenc-
ing adjustment, maintaining that Spencer’s involvement in the
conspiracy was limited to "routine mundane activity."
The probation officer who prepared Orange Dyess’s presentence
report described "large scale distribution and use of illegal sub-
stances" occurring at the defendant’s residence. The report attributed
882.72 grams of cocaine base, 100 grams of cocaine, and 2.26 grams
of marijuana to Orange Dyess. The report outlines a statutory maxi-
mum term of imprisonment of 20 years, with an applicable guideline
range of 235 to 293 months. Orange Dyess formally objected to the
probation officer’s reliance on certain witnesses in preparing his
report, but did not otherwise dispute the drug quantities attributed to
him.
The district court held a sentencing hearing for the three defendants
(Calvin and Orange Dyess and Spencer) on August 25 and 26, 1999.
A total of 13 individuals testified at these hearings, including Miss
Rader. Miss Rader described in general terms Calvin Dyess’s drug
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activities. In addition, she discussed turning over drug money to the
police shortly after her arrest but did not disclose that Hart had per-
mitted her to retain a portion of the money.
On direct examination, Miss Rader described an instance where she
saw Calvin Dyess attempting to convert cocaine into crack on a stove
top in an apartment. The government presented a demonstrative
exhibit, supposedly made by Miss Rader, that purported to indicate
how much cocaine powder Miss Rader observed in a saucepan. Miss
Rader testified to another occurrence where she witnessed Calvin
Dyess handling drugs at a co-conspirator’s apartment where he was
fanning a cookie sheet containing crack cocaine, with a large quantity
of cocaine simultaneously sitting on the kitchen counter. Two other
demonstrative exhibits were also submitted to illustrate the drug
amounts Miss Rader observed on this occasion; these exhibits were,
again, supposedly made by Miss Rader herself.
Other co-conspirators testified at the sentencing hearings: Lance
Williams, Eddie Ray Dyess, Douglas Miles, Philip Weldon, Leon
Mitchell, and Benjamin Green. These witnesses verified the informa-
tion in the presentence report and described specific drug sales by
Calvin Dyess, as well as details of his management of the drug con-
spiracy. They also testified to Calvin Dyess’s money and drug deal-
ings with Orange Dyess, the storage, sale, and consumption of drugs
at Orange Dyess’s residence, drug trips orchestrated by Calvin Dyess
and Spencer, and occasions that Calvin Dyess was observed convert-
ing cocaine powder into crack. Williams estimated that Calvin Dyess
transported between 40 and 60 kilograms of cocaine into Charleston.
Mitchell also ventured that Calvin Dyess transported into Charleston
between 75 and 100 kg of cocaine powder, with over half of the sum
total being converted into crack cocaine, and approximately a hundred
to two hundred pounds of marijuana. Officers Hart and Henderson
served as witnesses for the government as well.
At the conclusion of the sentencing hearing, the district court sen-
tenced the defendants. As to Calvin Dyess, the court concluded the
base offense level for the drug conspiracy charge to be 38. (J.A. 755)
Sentencing enhancements were applied according to the guidelines as
follows: two levels for the presence of firearms under U.S.S.G.
§ 2D1.1(b)(1); two levels for obstruction of justice according to
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U.S.S.G. § 3C1.1; four levels for occupying a managerial or supervi-
sory role in the commission of the offense provided by U.S.S.G.
§ 3B1.1(a). As Calvin Dyess’s prior convictions placed him in a crim-
inal history category of III, the applicable guideline range for the con-
spiracy offense was mandatory life imprisonment with a fine ranging
from $25,000 to $4 million. (J.A. 755-56) Accordingly, Calvin Dyess
received a life sentence and a $25,000 fine. (J.A. 757) For the money
laundering count, the court sentenced Calvin Dyess in a supplemental
judgment to a concurrent term of 108 months incarceration. (J.A. 769)
Spencer’s base offense level for the conspiracy charge was also 38.
(J.A. 730) Although Spencer received a three-level enhancement for
his elevated role in the commission of the offense, the court simulta-
neously granted him a three-level reduction for acceptance of respon-
sibility. (J.A. 726, 730) With a criminal history category of II, the
applicable sentencing range was 262 to 327 months imprisonment,
followed by a period of supervised release and a fine of $25,000 to
$4 million. (J.A. 730-31) Ultimately, the court sentenced Spencer to
262 months of incarceration, with five years of supervised release,
and a $10,000 fine. (J.A. 738)
With respect to Orange Dyess, the district court found his base
offense level to be 36. (J.A. 709) A two-level enhancement was
applied due to the presence of firearms at his residence (J.A. 709).
With a criminal history category of I, the sentencing guidelines pre-
scribed a punishment of 235 to 293 months, a fine ranging from
$25,000 to $500,000, and a three year term of supervised release.
(J.A. 710) However, 21 U.S.C. § 856(b) provides a twenty year maxi-
mum for convictions of this offense, so the court sentenced Orange
Dyess at the lower range of the guidelines, with 235 months of
imprisonment followed by a supervised release term of three years.
(J.A. 714)
Defendants separately filed timely notices of appeal (J.A. 787, 789,
790), and we consolidated the appeals. (J.A. 83)
On April 29, 2002, ten days before scheduled oral argument in this
court, the government issued the first of several disclosures to the
defendants in compliance with the Supreme Court’s holdings in
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
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405 U.S. 150 (1972). (S.J.A. 14) In light of the new information, this
court remanded the case to the district court, directing it to "conduct
such further proceedings as it may deem appropriate." United States
v. Dyess, Nos. 99-4566, 99-4665, 99-4666, 99-4667 (4th Cir. Aug. 28,
2002) (Remand Order). (S.J.A. 18)
The reports following the government investigation detailed Hart’s
amatory adventures and his gift of drug money proceeds to Miss
Rader, which we have already mentioned supra. The disclosures also
described Hart’s subornation of perjury at the sentencing hearing by
influencing and constructing Miss Rader’s testimony.9 Miss Rader
also admitted that she did not make the demonstrative exhibits used
by the government in the sentencing hearing and that, in truth, she
could not say with certainty that the exhibits accurately represented
the amount of drugs she had seen. (S.J.A. 60F, 424-25)
To further complicate matters, in May and June of 2002, Calvin
Dyess prepared false affidavits on behalf of co-conspirators Benjamin
Green, Lori Cummings, and Eddie Ray Dyess. (S.J.A. 183-84, 208-
09, 212-14, 430-31) Benjamin Green and Eddie Ray Dyess were wit-
nesses for the government at the defendants’ sentencing hearing. (J.A.
431, 576) Benjamin Green had also given testimony before the grand
jury that issued the superseding indictment in 1999. (S.J.A. 421, 425)
Miss Cummings was also examined by the 1999 grand jury, though
she was not a government witness at the sentencing phase. (S.J.A.
421) Calvin Dyess requested Green, Miss Cummings, and Eddie Ray
Dyess to sign these affidavits with the intention of submitting them
to the court. (S.J.A. 183-84, 208, 430-31) Eddie Ray Dyess refused
to sign the affidavit prepared for him and instead turned the document
over to his probation officer. (S.J.A. 430-31) Green and Miss Cum-
mings chose to sign the affidavits that claimed each had committed
perjury at the insistence of Hart during the defendants’ proceedings.
(S.J.A. 60J-L, 180-82)
9In July of 2001, Hart and Miss Rader married. (S.J.A. 421) However,
due to Hart’s abusive tendencies, Miss Rader initiated divorce proceed-
ings in November of the same year. (S.J.A. 421) In December of 2001,
with the assistance of counsel, Rader disclosed to the government the
details of her relationship with Hart. (S.J.A. 429)
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In his affidavit, Green disavowed any knowledge of specific drug
quantities attributable to Calvin Dyess’s conspiracy activities. (S.J.A.
60K) Green claimed that Hart coerced him to giving false testimony
at the sentencing hearing as to Calvin Dyess’s transportation of multi-
ple kilograms of cocaine. (S.J.A. 60K) Similarly, Miss Cummings’
affidavit describes threats by Hart that forced her to fabricate testi-
mony regarding her assistance to Calvin Dyess in bringing back drugs
from New York to Charleston. (S.J.A. 181-82)
On remand, the defendants first moved to disqualify the United
States Attorney’s Office for the Southern District of West Virginia
from further participation in the case. The district court (Judge
Haden) granted the motion,10 and in January of 2003, three Special
Assistants to the Attorney General took over the case for the govern-
ment.
On July 9, 2003, the defendants made several other motions. Cal-
vin Dyess and Spencer moved to vacate their sentences based on the
Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S.
466 (2000). In addition, all of the defendants moved for dismissal of
the indictment based on government misconduct, withdrawal of their
guilty pleas, and a new sentencing hearing. The defendants also
moved for a separate evidentiary hearing for the presentment of proof
raised by the government’s disclosures. On December 17, 2003, the
district court (Judge Haden) granted the defendants’ request for an
evidentiary hearing and deferred a decision on the question of resen-
tencing and Apprendi’s impact until after the hearing. The court, at
that time, denied all of the defendants’ other motions.
On August 26, 2003, a federal grand jury had been empaneled to
review the evidence with respect to the investigation of the drug traf-
ficking activities of Calvin Dyess and others. The grand jury also
investigated the factual bases for Miss Rader’s allegations of Hart’s
misconduct and made findings as to the impact of Hart’s actions on
10The district court pointed out that no information had come to light
to suggest federal prosecutors had engaged in misconduct. The court’s
decision was instead motivated by the possibility of the lead prosecutor
being a potential witness in later proceedings, as well as a desire to avoid
the appearance of impropriety.
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the integrity of the proceedings. The grand jury’s presentment and
report of May 4, 2004 detailed Hart’s behavior as outlined above, but
concluded that the grand jury had "discovered nothing that under-
mines our confidence in . . . [the defendants’] guilt or in the sentences
imposed."11 (S.J.A. 437)
Additionally, the grand jury reviewed evidence regarding the false
affidavits filed by Benjamin Green and Lori Cummings in May and
June of 2002. In April and May of 2004, both Green and Miss Cum-
mings recanted the allegations contained in the affidavits,12 they
named Calvin Dyess as the affidavits’ author, and testified that Calvin
Dyess instructed Green and Miss Cummings to sign them.
The evidentiary hearing ordered by Judge Haden December 17,
2003 was held by Judge Faber on July 9, 2004.13 Prior to the hearing,
the court entered an order on June 18, 2004, which noted that the
defendants’ motion for resentencing was still outstanding. The court
found that the defendants, as the motion’s proponents, should bear the
burden, during the remand proceedings, of demonstrating the unreli-
ability of the Calvin Dyess, Spencer, and Orange Dyess’s sentences.
At the hearing before the district court, the defendants and the gov-
ernment examined witnesses,14 including Miss Rader, and submitted
evidence regarding the facts that justified the defendants’ sentences.
Miss Rader admitted before the court that some of her original testi-
mony was orchestrated by Hart and that he showed her statements of
other witnesses to ensure consistency. Miss Rader also testified that
Hart had prepared the demonstrative exhibits used by the government
11Judge Haden died March 20, 2004. The record does not show that he
had seen the grand jury testimony.
12Hart likewise denied the affidavits’ accusations.
13As noted, Judge Haden, who had conducted the proceedings until
that time, died on March 20, 2004. Judge Faber, the Chief Judge of that
court, conducted the case thereafter.
14Though the defendants attempted to call Hart as a witness at the evi-
dentiary hearing, Hart exercised his right under the Fifth Amendment not
to testify. On June 15, 2005, Hart pleaded guilty to a single count of
making an unauthorized conveyance of money of the United States not
in excess of $1000.00 to another person, in violation of 18 U.S.C. § 641.
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at sentencing. Throughout the hearing, the government did not contest
the defendants’ position that Miss Rader’s prior testimony should no
longer be credited. Instead, the government asserted that it had pre-
sented sufficient evidence at the initial sentencing hearing to support
the court’s judgments, apart from Miss Rader’s testimony. The defen-
dants did not offer any evidence to suggest that the accounts of drug
amounts by other witnesses at the sentencing hearing were affected
by Hart’s misconduct.
On February 11, 2005, the district court (Judge Faber) entered its
final order denying the defendants’ motion for resentencing. The
court acknowledged the existence of Hart and Miss Rader’s relation-
ship and the unreliability of her testimony. It concluded nonetheless
that "the drug quantities established by other witnesses who testified
at the defendants’ consolidated sentencing hearing significantly
exceed the 1.5 kilograms of crack cocaine" which served as the
grounds for the sentences. Furthermore, the court pointed out that
defendants Spencer and Orange Dyess did not contest the drug
amounts that were attributed to them in the proceedings prior or fol-
lowing the sentencing hearing. As to the impact of United States v.
Booker, 543 U.S. 220 (2005), on the defendants, the court explicitly
noted that if it were "called upon to resentence these defendants, [it]
would give them the same sentences" previously imposed.
Each defendant filed a notice of appeal from the final order: Calvin
Dyess on February 21; Orange Dyess on February 22; and Spencer on
February 28.
III.
Before considering the merits of this appeal, we first address our
jurisdiction. Congress has authorized us to hear the defendants’
appeal from the district court’s final order pursuant to 28 U.S.C.
§ 1291.
The government suggests in an offhand way that Spencer’s claims
are not properly before us because his notice of appeal is untimely.
(Compare br. p.2 with br. p.3.) Spencer’s notice of appeal was filed
February 28, 2005 (S.J.A. 408-09), while the district court’s final
order was entered on February 11, 2005. (S.J.A. 380) A criminal
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defendant has ten days following a district court’s final order to file
notice of appeal. Fed. R. App. P. 4(b)(1)(A). In computing a period
of time under the rules, we are directed to "exclude the day of the act,
event, or default that begins the period," as well as any "intermediate
Saturdays, Sundays, and legal holidays when the period is less than
11 days." Fed. R. App. P. 26(a)(1) and (2). According to this compu-
tation, therefore, the government’s calculations are incorrect. Spen-
cer’s notice was filed seventeen calendar days after the final order;
however, six of those days were weekends, and one was a federal hol-
iday as defined by Fed. R. App. P. 26(a)(4), i.e., Washington’s Birth-
day. Since Spencer’s notice of appeal was filed in compliance with
the time limitations of Fed. R. App. P. 4(b)(1)(A), his appeal was
timely taken.
IV.
In this factually complicated and unusual case, it is of considerable
consequence to note that at the time Judge Faber entered the order
appealed from in this case, on February 11, 2005, he had at hand for
consideration all of the facts mentioned in this opinion, except with
respect to the grand jury empaneled August 26, 2003. With respect to
the grand jury, he had apparently considered only the testimony of the
witnesses Rader, Henderson, and Hart. Judge Faber did have before
him all of the facts before Judge Haden at the time Judge Haden
entered his orders which may be at issue in this case.
V.
A.
The defendants urge us to reverse the district court’s denial of their
motion to dismiss the indictment and the information and to bar re-
prosecution of the charges. The defendants claim that Hart’s actions
constituted outrageous government conduct that undermined the
defendants’ right to fundamental fairness and due process in the crim-
inal proceedings. Since the presence of prosecutorial misconduct is a
factual inquiry, we review the district court’s findings on that issue
for clear error. United States v. McDonald, 61 F.3d 248, 253 (4th Cir.
1995), not followed on unrelated grounds by United States v. Wilson,
205 F.3d 720 (4th Cir. 2000).
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B.
This court has previously acknowledged that egregious government
conduct may violate due process and prevent the re-prosecution of a
defendant. See United States v. Jones, 18 F.3d 1145, 1154 (4th Cir.
1994) (citing United States v. Goodwin, 854 F.2d 33, 36-37 (4th Cir.
1988)). To constitute a due process violation, the government’s
actions must be "so outrageous as to shock the conscience of the
court." United States v. Osborne, 935 F.2d 32, 36 (4th Cir. 1991). We
have therefore emphasized that these claims will be recognized only
in "rare cases." Jones, 18 F.3d at 1154.
The conduct alleged to be outrageous here is Hart’s romantic
involvement with Miss Rader during the plea and sentencing phases
of the defendants’ proceedings and his subornation of perjury by Miss
Rader at the sentencing hearing. We address Hart’s wrongdoings in
turn to determine whether his actions meet the threshold set out in
Osborne.
1.
Hart and Miss Rader’s relationship was clearly improper. We agree
with the district court, however, that it did not rise to the level of out-
rageous misconduct sufficient to warrant dismissal of the defendants’
charges with prejudice.
Although this court has not yet had occasion to establish a standard
for evaluating a due process claim based on sexual misconduct by a
government agent, other circuits have. In United States v. Cuervelo,
949 F.2d 559 (2d Cir. 1991), the Second Circuit ruled on the necessity
of an evidentiary hearing based on a claim by the defendant that the
investigating agent tried to establish a "love interest" with her. Cuer-
velo, 949 F.2d at 561. Specifically, the male DEA agent had sexual
relations with the female defendant on several occasions, wrote her
love letters, and brought her gifts of money, clothes, and jewelry.
Cuervelo, 949 F.2d at 563. On appeal, following a jury trial and con-
viction, the Second Circuit held that an evidentiary hearing must be
held to determine if a violation of due process has occurred once a
defendant demonstrates the following:
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(1) that the government consciously set out to use sex as a
weapon in its investigatory arsenal, or acquiesced in such
conduct for its own purposes upon learning that such a rela-
tionship existed; (2) that the government agent initiated a
sexual relationship, or allowed it to continue to exist, to
achieve governmental ends; and (3) that the sexual relation-
ship took place during or close to the period covered by the
indictment and was entwined with the events charged
therein.
Cuervelo, 949 F.2d at 567. The appellate court did not reach the mer-
its of the defendant’s due process claims in Cuervelo; instead, it
remanded the matter to the district court for findings of fact to deter-
mine whether the DEA agent’s conduct was sufficiently outrageous
to constitute a due process violation. 949 F.2d at 569.
In United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998), the
Third Circuit applied the Cuervelo test to a case involving a sexual
relationship between a defendant and an undercover officer. The
Third Circuit made a slight modification to the Cuervelo standard,
however, finding that a female defendant met her burden by showing
that the authorities "knew or should have known" of the existence of
the sexual relationship. Nolan-Cooper, 155 F.3d at 233. The facts
before the Third Circuit also involved a female defendant who was
the target of romantic overtures by the male investigating agent.
Nolan-Cooper, 155 F.3d at 226. The contact between the two parties
ultimately resulted in a sexual encounter. Nolan-Cooper, 155 F.3d at
234. The court found that this intimate exchange was not orchestrated
by the government to serve any investigatory ends and, as a result,
held that it did not give rise to a due process violation on the basis
of outrageous government conduct. Nolan-Cooper, 155 F.3d at 234.
Cuervelo and Nolan-Copper are admittedly distinct from the pres-
ent case in that none of the defendants presently before us in this
appeal was the direct object of Hart’s sexual overtures; nonetheless,
we find the test adopted by the Second and Third Circuits to be a use-
ful framework within which to examine Hart’s actions.
In addressing the first and second Cuervelo factors, we note that
the defendants do not now allege, and did not allege in the district
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court, that Hart engaged in a relationship with Miss Rader for govern-
ment purposes or to achieve investigatory advantages. Hart’s behavior
was to reassure Miss Rader that nothing bad would happen to her, and
gifts to her and her daughter were aimed at endearing Miss Rader to
Hart and not at obtaining more information to aid in the defendants’
prosecution. The district court found that Hart "sought to satisfy per-
sonal needs, personal desires and personal ends by his sexual and,
ultimately, short-term marital relationship with Ursala." "These were
personal, not governental goals." (S.J.A. 120) In light of the record,
we are of opinion that the district court’s factual findings on this point
are not clearly erroneous.
As to the third Cuervelo factor, the district court found that Hart’s
relationship with Miss Rader began as early as February of 1999, near
the issuance of the superseding indictment. (S.J.A. 128-P) By all
accounts, however, the relationship did not take place "during or close
to the period covered by the indictment" i.e., between 1995 and
December of 1998. Cuervelo, 949 F.2d at 567 (emphasis added).
More importantly, there is no evidence that the affair was "entwined
with the events" described in the charging instruments: the drug con-
spiracy and money laundering activities. Cuervelo, 949 F.2d at 567.
Unlike the defendants in Cuervelo and Nolan-Cooper, who were the
objects of ongoing investigations at the time of the sexual encounters,
these defendants stood accused and detained by the government at the
time of Hart and Miss Rader’s coupling. Because Hart’s misbehavior
had not yet occurred at the time of the defendants’ arrests, his conduct
neither improperly enticed the defendants into engaging in the
charged criminal activity nor invited another to reveal information
which led to the charges. See Nolan-Cooper, 155 F.3d at 234 ("The
Cuervelo framework contemplates conduct that is designed to achieve
investigatory or other government ends; failing this, the case cannot
support [defendant’s] claim.") Therefore, Hart’s relationship with
Miss Rader cannot be said to be sufficiently outrageous as to warrant
dismissal with prejudice of the indictment or the information and we
affirm the order of the district court in this respect.
2.
It is also undisputed that Hart induced Miss Rader to commit per-
jury at the sentencing hearing, both as to the amount of drugs she per-
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sonally observed and the creation of the demonstrative exhibits.
However, we agree with the district court that a dismissal of the
indictment and the information is not an appropriate remedy for this
misconduct.
In United States v. Derrick, 163 F.3d 799 (4th Cir. 1998), this court
addressed a defendant’s contention that his indictment should be dis-
missed on the basis of discovery violations by the government. Der-
rick, 163 F.3d at 803. We emphasized that "an indictment may not be
dismissed for prosecutorial misconduct absent a showing that the mis-
conduct prejudiced the defendant." Derrick, 163 F.3d at 807. Further-
more, even when a court finds such prejudice, dismissal of the
indictment does not necessarily follow as a remedy. Retrial, for exam-
ple, may fully cure prejudice. Derrick, 163 F.3d at 809. See also Der-
rick, 163 F.3d at 807 ("The dismissal of an indictment altogether
clearly thwarts the public’s interest in the enforcement of its criminal
laws . . . .") We therefore affirm the district court’s denial of the
defendants’ motion to dismiss with prejudice the indictment and
information.
VI.
Defendants Calvin Dyess and Orange Dyess argue that the district
court erred in denying a motion to withdraw their guilty pleas.15 Both
defendants contend that their pleas were not knowing and voluntary,
and Calvin Dyess claims that we should permit withdrawal based on
the government’s purported breach of the plea agreement. We review
a district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993). We affirm.
A.
When a defendant enters a plea of guilty and later seeks to with-
draw it, the defendant bears the burden of demonstrating that with-
drawal should be granted. See United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991). Calvin Dyess and Orange Dyess are making a
15Defendant Spencer does not join in this portion of the appeal.
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post-sentencing challenge to their guilty pleas. In these situations, a
district court only abuses its discretion in denying withdrawal if the
underlying plea proceedings "were marred by a fundamental defect
that inherently resulted in a complete miscarriage of justice, or in
omissions inconsistent with rudimentary demands of fair procedure."
United States v. Ubakanma, 215 F.3d 421, 425 (4th Cir. 2000). We
review each of the defendants’ due process challenges in turn.
1.
Calvin Dyess argues that his guilty plea violates due process
because it was not knowing or voluntary. He claims that his attorney’s
decision to allow him to enter into a plea agreement that included
exposure to a life sentence amounts to ineffective assistance of coun-
sel. Calvin Dyess also faults his attorney for not knowing about Hart
and Miss Rader’s intimate relation and the degree to which it would
affect the sentencing process.
We agree with the district court that Calvin Dyess had the benefit
of competent counsel at the time of the proceedings and that his plea
was therefore knowing and voluntary. To justify a withdrawal of a
guilty plea on the basis of ineffective assistance of counsel, a defen-
dant must show 1) that his counsel’s actions fell below an objectively
reasonable standard, and 2) that but for the attorney’s errors, it is rea-
sonably probable that the defendant would have chosen to face trial
rather than plead guilty. Ubakanma, 215 F.3d at 425; United States
v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). Calvin Dyess fails to
meet this burden.
Calvin Dyess cannot successfully claim that he was ineffectively
represented solely because his attorney allowed him to accept a guilty
plea that included exposure to a life sentence. The defendant was
charged with twelve federal counts involving drug distribution,
money laundering, firearm possession, and unauthorized use of a cell
phone. In exchange for pleading guilty, the government agreed to dis-
miss ten of these charges. During the plea colloquy, Calvin Dyess
admitted to the factual elements of the two remaining counts. (S.J.A.
128U) The defendant was advised of the applicable sentencing range,
both in the written plea agreement (J.A. 135) and during the plea col-
loquy (S.J.A. 128U). By signing the plea agreement and in responding
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in the same fashion to the district court’s questions at the hearing,
Calvin Dyess acknowledged understanding that a specific sentence,
ranging anywhere from ten years to life imprisonment, would be
determined at a date subsequent to the plea. (J.A. 136-37, 140; S.J.A.
128U-V) Calvin Dyess exercised his own choice to plead guilty and
expressly accepted the risk of the uncertainty of his sentence, includ-
ing the possibility of serving a life sentence. The defendant may not
now fault his attorney for an outcome that is the product of his own
decision-making.
Likewise, we are not persuaded by Calvin Dyess’s contentions that
his attorney rendered ineffective assistance by failing to uncover Hart
and Miss Rader’s love affair and anticipate the impact it would have
at sentencing. Even the federal prosecutors closely associated with the
case also had no knowledge of the affair until Miss Rader’s revelation
in late-2001. (S.J.A. 116-17) Calvin Dyess offers no indication as to
why his attorney should be expected to have some special knowledge
of the situation, and we find none in the record.
In addressing ineffective assistance of counsel challenges, this
court presumes that the defendant’s counsel rendered objectively
effective performance. See Matthews v. Evatt, 105 F.3d 907, 919 (4th
Cir. 1997). Calvin Dyess has failed to overcome this presumption.
Since the defendant cannot show that his attorney’s conduct leading
up to and during the guilty plea was objectively unreasonable, we
conclude that he pleaded guilty knowingly and voluntarily. We do not
address whether Calvin Dyess would have chosen to be tried on the
charges absent his guilty plea because we have concluded that the
guilty plea was not effected by attorney error. As such, we are of
opinion and hold that the district court did not abuse its discretion in
denying Calvin Dyess’s motion to withdraw his plea.
2.
Orange Dyess also argues that his plea was not knowing and volun-
tary in violation of due process. Specifically, the defendant states that
his attorney did not meaningfully advise him of the nature of the
offense to which he was pleading. As evidence of his counsel’s inef-
fectiveness, Orange Dyess claims that he expressed confusion as to
the elements of the charge during the colloquy.
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As with Calvin Dyess’s ineffective assistance of counsel challenge,
we evaluate the conduct of Orange Dyess’s attorney as a basis for
withdrawal of the plea under the Ubakanma standard. Ubakanma, 215
F.3d at 425. The performance of Orange Dyess’s counsel before and
during the plea hearing meets this objectively reasonable threshold.
During the plea colloquy, the defendant affirmed that he and his attor-
ney had already reviewed the written plea agreement together. (J.A.
274) Later in the hearing, the court also inquired as to whether the
defendant was satisfied with his counsel’s performance:
Q. Do you feel now that you have had adequate time to
fully discuss all aspects of your case with [your attor-
ney] before reaching [the] decision [to plead guilty]?
A. Yes.
Q. And has he been able to answer the questions you have
had about the best way for you to proceed under the
circumstances?
A. Yes.
Q. Are you satisfied with the quality of his legal service
to this point in time, knowing that he is representing
you in a serious criminal matter?
A. Yes. (J.A. 287-88)
In contrast to these declarations, the defendant points to a portion
of the plea hearing transcript as evidence that his attorney did not
properly explain the nature of the offense to which he was pleading:
Q. What [Assistant United States Attorney Monica
Schwartz] is suggesting to you is that this is — you are
charged with operating a crack house and —
A. No, sir. Excuse me. She didn’t tell me was operating
knowingly, that someone was smoking in my house.
She didn’t tell me it was operating a crack cocaine
house.
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Defense counsel: Your Honor, when I — when I read that
to you [Orange], you raised the question about the sen-
tence "opening or maintaining."
Orange Dyess: Right.
Defense counsel: And I indicated to you, you maintained
that house.
Orange Dyess: Well, I lived there. I resided there.
Defense counsel: You lived there, so that is — that’s the
context of which that particular phrase was explained to
Mr. Dyess. (J.A. 275)
This exchange evidences that the defendant’s attorney previously dis-
cussed the definition of the charge with his client. Taken in context,
Orange Dyess’s objections were to the district court’s use of the
phrase "operating a crack house" rather than a disagreement over the
facts necessary to establish an element of the crime, that the defendant
knowingly permitted others to use crack in his home. These state-
ments, however, do not translate into a finding that his attorney failed
to adequately advise him of the nature of the pending charge.16 The
16Later in the plea hearing, the defendant again contested the definition
of the charge, yet ultimately admitted his guilt:
Q. So if the government had to at a trial prove this charge
against you, it would have to prove the following elements
by proof beyond a reasonable doubt. And that is, first, that
you did knowingly maintain a place for the distribution or
possession with intent to distribute a controlled substance.
. . .
And, secondly, you — that it was used for that purpose and
that you used it knowingly and intentionally.
A. This was said to me another way, Your Honor. Now, I have
had people come there, I have explained this, but willingly
and use knowingly that I have known that people have
smoked there. But as far as me establishing this for a crack
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determination of the sufficiency of an attorney’s performance is an
objective one. So long as the attorney’s explanation of the charge was
house, that’s — no, that’s not correct.
I did sign these papers stating that, but I was under the
impression that I did know that people had came into my
house at one time or smoked, or I did know that they had
brought crack cocaine there. But me willfully setting up —
Q. That’s willfully if you allowed that to happen at your resi-
dence.
A. But willfully opening, that’s what I’m talking about, will-
fully opening. That’s right, I saw them smoke there.
Q. Did you understand that allowing people to come to this
residence —
A. Your Honor —
Q. — to use and to sell crack cocaine would be a violation of
federal and state drug laws?
A. Yes, yes.
Q. And before one can be guilty criminally, that person had to
act knowingly and that is voluntarily —
A. Yeah.
Q. — and intentionally and not because of mistake or accident
or negligence or some innocent reason on your part. So in
other words, what I am saying, you cannot be guilty of this
unless you knew what you were doing was wrong and
allowed it to happen. Do you understand that?
A. I understand what you are saying.
Q. Do you consider yourself to be guilty of this offense?
A. Yes.
As demonstrated by this exchange, the defendant admitted to conduct
that is included in the definition of the offense: "Knowingly open or
maintain any place for the purpose of . . . using any controlled sub-
stance." 21 U.S.C. § 856(a)(1). Cf. United States v. Willis, 992 F.2d 489,
491 (4th Cir. 1993) (by pleading guilty to using firearm in connection
with drug crime, defendant forfeited right to contest statutory definition
of "firearm"). Orange Dyess’s efforts to parse statutory language during
the hearing do not prove by implication or otherwise that his attorney
failed to adequately explain the charge.
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appropriately calculated, as here, to apprise a defendant in Orange
Dyess’s situation of the accusations he faced, the reasonableness stan-
dard is met. Furthermore, the defendant expressed satisfaction with
his attorney during the colloquy; this statement of fact cannot be so
easily repudiated. See United States v. Lambey, 974 F.2d 1389, 1395
(4th Cir. 1992). Orange Dyess has failed to carry his burden under
Ubakanma; we therefore find and hold that the district court properly
exercised its discretion in denying Orange Dyess’s request to with-
draw his guilty plea based on the due process grounds of ineffective
assistance of counsel.
B.
As additional grounds for withdrawing his guilty plea, Calvin
Dyess argues that the government failed to offer him a meaningful
debriefing, thereby breaching the plea agreement. On remand, the dis-
trict court found that the government had not violated the plea agree-
ment except in one particular, and we agree with that finding and with
its reasoning. The one defect was that the government did not offer
Calvin Dyess an opportunity to cooperate by debriefing. It held that
the debriefing would be required if Calvin Dyess were to be resen-
tenced following the evidentiary hearing. We affirm the conviction
and sentence of Calvin Dyess, however, so neither resentencing or
debriefing is required. We do not further consider the debriefing ques-
tion.
VII.
A.
Each of the defendants also claims that his sentence is unconstitu-
tional in light of the Supreme Court’s holdings in United States v.
Booker, 543 U.S. 220 (2005). They contend that the district court
made findings of fact at the sentencing hearing apart from those
already admitted by the defendants. They argue that the court used
these findings to enhance their sentences beyond the original guide-
line range in contravention of the Sixth Amendment. See Booker, 543
U.S. at 245; United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005).
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1.
We are obliged to consider the defendants’ challenges under
Booker, even though their sentences were imposed several years prior
to that decision. The defendants’ sentences are before this court on
direct appeal following a remand order without decision. Booker, 543
U.S. at 268 (holdings to be applied "to all cases on direct review").
2.
Sixth Amendment sentencing error occurs when a sentencing court
under a mandatory sentencing guideline regime bases its decision on
facts (other than a prior conviction) not found by a jury beyond a rea-
sonable doubt or admitted by the defendant, to enhance a defendant’s
sentence above the minimum required by the finding of guilty for a
given offense. Booker, 543 U.S. at 244. Such error occurred when
these defendants were initially sentenced in 1999, but we are of opin-
ion it was cured on remand in 2005. In its order denying the defen-
dants’ motions to vacate the sentences and for resentencing, the
district court (Judge Faber) announced that it had "reconsidered . . .
[the] original sentences in these cases in light of Booker" and found
the terms "to be reasonable and fully supported by credible evidence."
(S.J.A. 390) The district court then declared its intention, if called
upon, to resentence "these defendants" in an identical fashion: "if cal-
led upon, . . . the court would give them the same sentence Judge
Haden imposed." (S.J.A. 390-91) We find that this language is, for all
practical purposes, an "alternative identical sentence treating the
Guidelines as advisory only." See United States v. Revels, 455 F.3d
448, 451 (4th Cir. 2006); see United States v. Hammoud, 381 F.3d
316, 353-54 (4th Cir. 2004). We therefore conclude that any Booker
error in the defendants’ sentencing is harmless, as it has not "actually
affected the outcome of the proceedings." United States v. Hughes,
401 F.3d 540, 548 (4th Cir. 2005).
To recount, the district court (Judge Haden) imposed on Calvin
Dyess a life sentence based on sentencing hearing testimony, not
before the jury or admitted by Dyess, that related to total drug
amounts involved in the conspiracy (J.A. 745-46), proximity of fire-
arms to the drug activity (J.A. 755), Calvin Dyess’s attempts to
obstruct justice (J.A. 754), and his organizing role in the drug distri-
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bution (J.A. 755). None of the these facts had previously been admit-
ted to by Calvin Dyess. Based on this evidence, the district court
found Calvin Dyess’s base offense level to be 38, in that his drug
activity involved at least 1.5 kg of crack cocaine (J.A. 744, 746-47).
U.S.S.G. § 2D1.1(c) (1998). The court further applied three enhance-
ments to determine the defendant’s sentence: two levels for the pres-
ence of firearms under § 2D1.1(b)(1), four levels for a leadership role
in the conspiracy under § 3B1.1(a), and two levels for obstruction of
justice according to § 3C1.1. (J.A. 755) With a 46 offense level and
a criminal history category of III, Calvin Dyess was sentenced to life.
(J.A. 756)
As for Spencer, the district court imposed a prison term of 262
months based on testimony at the sentencing hearing regarding the
total amount of drugs involved in the conspiracy (J.A. 727, 737) and
Spencer’s supervisory role in the distribution scheme. (J.A. 726) The
district court found Spencer’s base offense level to be 38, in that the
drugs in question amounted to at least 1.5 kg of crack cocaine (J.A.
727, 730). U.S.S.G. § 2D1.1(c) (1998). Over the defendant’s objec-
tion, the court further applied a three-level enhancement to Spencer’s
sentence after finding that Spencer occupied a managerial role in the
conspiracy under § 3B1.1(b). (J.A. 726) The court did, however, grant
the defendant’s request for a three-level downward adjustment for
accepting responsibility under § 3E1.1. (J.A. 729-30) With the
enhancement and adjustment effectively cancelling out each other, the
court found Spencer had an offense level of 38 and a criminal history
category of II. (J.A. 730) The Guideline’s Sentencing Table provided
a sentencing range of 262 to 327 months, and the district court chose
to sentence the defendant to the lowest end of the range at 262
months. (J.A. 730, 738) As was the case with Calvin Dyess, the dis-
trict court’s factual findings that served as bases for Spencer’s sen-
tence were not admitted by Spencer.
In considering Orange Dyess’s sentence, the district court ordered
him to serve 235 months of imprisonment based on testimony at the
sentencing hearing relating to the amount and types of drugs located
at his residence. (J.A. 709-10, 713-14) The court adopted the conclu-
sions in Orange Dyess’s presentence report, finding that the defendant
controlled 882.72 g of crack, 100 g of cocaine, and 2.26 kg of mari-
juana (or the equivalent of 17,676.66 kg in marijuana) on his prem-
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ises. (J.A. 709, 850-51) According to U.S.S.G. §§ 2D1.8(a)(1) and
2D1.1, this finding translated into a base offense level of 36 under
U.S.S.G. § 2D1.1(c)(2). (J.A. 709) The court also applied a two-level
enhancement for the presence of firearms in Orange Dyess’s resi-
dence. (J.A. 709) With an offense level of 38 and a criminal history
of I, Orange Dyess was eligible for a sentence of 235 to 293 months.
(J.A. 710) However, because 21 U.S.C. § 856(b) provided for a maxi-
mum sentence of 20 years, the court could not sentence the defendant
to more than 240 months. (J.A. 710) The district court imposed a term
of imprisonment of 235 months. (J.A. 714) Similar to its computation
for Calvin Dyess and Spencer, the district court computed Orange
Dyess’s sentence based on its own factual findings not previously
admitted by the defendant.
On remand by this court, following disclosure of the Hart-Ursala
affair, the district court conducted an evidentiary hearing which
inquired into the factual background of the Hart-Ursala misconduct
and its impact on the witnesses’ testimony at the sentencing hearing.
The court also examined a voluminous record that consisted of the
government’s series of disclosures, presentence investigation reports,
and the record from the defendants’ sentencing hearing. (S.J.A. 382)
The court also conducted an in camera examination of grand jury
transcripts of testimony from Miss Rader, Hart, and Henderson.
(S.J.A. 382) From this body of information, the court concluded that
"there is ample testimony in the record that has not been contradicted
to support the original sentences." (S.J.A. 390) Consequently, the dis-
trict court denied the defendants’ motions to vacate their sentences
and for resentencing, deciding that the terms of imprisonment "are
supported by abundant credible evidence." (S.J.A. 390) In its order,
the district court (Judge Faber) simultaneously considered the impact
of Booker on the sentences and declared it would, if called upon,
"give them the same sentences," Judge Haden imposed. (S.J.A. 390-
91)
We find the district court’s language on remand to be analogous to
an alternative identical sentence announced under an advisory sen-
tencing scheme and approved in Hammoud, 381 F.3d at 353-54, and
in Revels, 455 F.3d at 451-52. As in Revels, any further proceeding
designed to correct the Booker error in the sentences would be "little
more than an empty formality, for the sentence the district court
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would impose on remand is a foregone conclusion." Revels, 455 F.3d
at 452. At the conclusion of the most recent evidentiary hearing in
this case, the district court (Judge Faber) possessed as much or more
reliable information about the defendants and the details of their
offenses as had the sentencing court (Judge Haden). The district court
was thus entitled to conclude that the sentences were reasonable and
justified by abundant proof. We therefore decide that the defendants
are not entitled to resentencing under Booker despite the Sixth
Amendment error, or otherwise, as the defendants’ sentences were not
"longer than that to which [they] would otherwise be subject."
Hughes, 401 F.3d at 548.
VIII.
The defendants argue that the original sentences imposed by Judge
Hayden are not supported by sufficient evidence, in that they are
tainted by Miss Rader and Hart’s misconduct that culminated in
Hart’s subornation of perjury by Miss Rader at the sentencing hear-
ing. We have already addressed the substance of this question in our
discussion of Booker and the impact on the defendants’ sentences of
the Ursula-Hart affair. On remand, Judge Faber considered anew all
of the evidence justifying the defendants’ sentences and found that "in
spite of the credibility problems of Rader, Hart, Henderson, and
Green, the original sentences are supported by abundant credible evi-
dence." (S.J.A. 390) We agree with the district court and find the
defendants’ contentions on this point to be without merit.
IX.
Calvin Dyess contends that his offenses for money laundering and
drug distribution should have been grouped pursuant to U.S.S.G.
§ 3D1.2(c) and our holding in United States v. Bartley, 230 F.3d 667,
673 (4th Cir. 2000). The probation officer who prepared Calvin
Dyess’s presentencing report reasoned that the two offenses should
not be grouped according to U.S.S.G. § 3D1.1(a)(3), in that each
offense represented a different societal harm. (J.A. 894) At sentenc-
ing, the district court adopted the report’s conclusions, finding that,
in any case, grouping the offenses would not impact Calvin Dyess’s
sentencing, as "[t]he range is so much significantly higher in the drug
conspiracy than it is with the money laundering conspiracy that I
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don’t believe it bears further analysis." (J.A. 755-56) In response,
defense counsel for Calvin Dyess conceded it was "not necessary" for
the court to address the issue further. (J.A. 756) In its objections to
the presentence report and at the sentencing hearing, the government
expressed no opinion as to whether Calvin Dyess’s offenses should
be grouped for sentencing purposes.
On August 27, 1999, in the first sentence imposed on Calvin
Dyess, Judge Hayden sentenced the defendant to life for both the drug
count and the money laundering count according to a total offense
level of 46. (J.A. 761-65) However, on August 31, 1999, only four
days later, Judge Hayden issued an order under Criminal Rule 35(c)
for technical error that corrected the August 27th judgment to provide
that the life sentence was imposed solely for Count 2, the drug con-
spiracy conviction, and related that Count 3, the money laundering
count, would be the subject of a separate judgment. (J.A. 766-67) On
September 1, 1999, Judge Hayden issued a supplemental judgment to
the initial judgment, wherein he sentenced Calvin Dyess to 108
months for the money laundering count according to a total offense
level of 27. The 108-month sentence was to run concurrently with the
life sentence. (J.A. 768-73)
In its brief, the government agrees that the district court erred in
failing to group Calvin Dyess’s offenses, yet maintains that such error
is harmless because "the failure to group did not result in any increase
in the defendant’s adjusted offense level." (Br. 49-50) We construe
Calvin Dyess’s brief to admit that the district court’s decision not to
group the offenses "did not ultimately affect his sentence." (Appellant
Br. 68-73 and n.17) We thus conclude that Calvin Dyess conditions
his request for relief as to request grouping only if this court orders
his resentencing. Because we affirm Calvin Dyess’s sentence as pre-
viously imposed for the drug conviction, as well as for money laun-
dering, we do not remand the case for resentencing. Thus, we do not
group the offenses for sentencing.
The judgment of the district court in each case is accordingly
AFFIRMED.
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GREGORY, Circuit Judge, dissenting in part and concurring in part:
This appeal involves a flagrant instance of government misconduct
in which the detective handling Calvin Dyess’s drug investigation
seduced his wife, Ursala Dyess, and encouraged her to lie about criti-
cal facts regarding Calvin and his co-defendants’ culpability during
the consolidated sentencing hearing. Further still, the detective per-
mitted Ursala to keep some of the drug proceeds retrieved from Cal-
vin’s backyard. In addition to this wrongdoing, another witness
admitted she lied during the grand jury hearing, while still another
witness testified during the sentencing hearing, recanted his testi-
mony, and finally recanted his recantation.
These revelations came to light while the defendants’ sentences
were on direct appeal to this Court. After we remanded the matter to
Judge Haden, the district court judge who had originally sentenced
defendants, to conduct further proceedings in light of this misconduct,
the Supreme Court handed down its decision in United States v.
Booker, 543 U.S. 220 (2004). However, Judge Haden passed away
before fully reconsidering the sentences, and the matter was trans-
ferred to Judge Faber.
Despite the obviously sensitive nature of these proceedings and
Booker’s instruction to consider the Guidelines in connection with the
sentencing factors set forth in 18 U.S.C. § 3553(a), id. at 259, Judge
Faber did not conduct a de novo sentencing hearing. Instead, he con-
ducted a limited sentencing hearing designed solely to address the
degree to which Ursala Dyess and Detective Hart had tainted the
other witnesses.
Despite the perjury that occurred at the initial sentencing hearing
and the Booker errors arising from the original sentences imposed, the
majority nonetheless concludes that the defects were harmless in light
of the district court judge’s subsequent findings of fact. I disagree.
Judge Faber’s sentencing hearing could not and did not cure the
errors. Thus, I dissent from the majority’s decision to affirm the sen-
tences, as set forth in Parts VII and VIII of the opinion.
The district court judge explicitly stated that the sole purpose for
the evidentiary hearing following remand from this Court "was to
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determine whether the alleged misconduct by Hart, Henderson, Rader
[Ursula Dyess], or the purported recantations of Green and Cummings
undermine the factual basis for the original sentencing guideline cal-
culations in the defendants’ cases." S.J.A. 381. Following the hearing,
the judge concluded that: (1) any deficiencies in Ursula Dyess’s testi-
mony were harmless in light of other testimony supporting well over
1.5 kilograms of cocaine activity by Calvin Dyess; (2) there was no
evidence that Detective Hart compromised or tainted the testimony of
witnesses other than Ursala Dyess at the original sentencings; (3)
Green’s recantation of his testimony at the sentencing hearing was
later recanted; and (4) Cummings’s perjury at the grand jury proceed-
ing was harmless because she did not testify at the sentencing hearing.
Thus, the district court judge concluded that "in spite of the credibility
problems of Rader, Hart, Henderson, and Green, the original sen-
tences are supported by abundant credible evidence." S.J.A. 390.
The central flaw underlying this conclusion is that the district court
judge was making after-the-fact credibility determinations. Instead, as
the trier of fact, the judge on remand was obligated to make credibil-
ity determinations in the first instance. Here the judge considered
solely the extent to which Ursala Dyess, Lori Nicole Cummings, Ben-
jamin Green, Trooper Henderson, and Detective Hart had perjured
themselves, without considering the critical question of whether the
testimony proffered by the remaining witnesses regarding the attribut-
able drug quantities and relevant conduct for each defendant was
credible.
Importantly, saying that the perjury of a few witnesses did not taint
the remaining witnesses is not the same thing as saying that the
remaining witnesses were credible. By attempting to rehabilitate
Judge Haden’s findings by relying on a transcript of the sentencing
hearing—without the benefit of seeing or hearing the key witnesses—
the district court judge essentially acted as an appellate court engag-
ing in a sufficiency of the evidence analysis. See United States v. Bur-
gos, 94 F.3d 849, 863 n.5 (4th Cir. 1996) ("[T]he appellate function
is not to determine whether the reviewing court is convinced of guilt
beyond reasonable doubt, but, viewing the evidence and the reason-
able inferences to be drawn therefrom in the light most favorable to
the Government, ‘whether the evidence adduced at trial could support
any rational determination of guilt beyond a reasonable doubt.’"
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(internal citations omitted)). As the sentencing judge, a district court
judge is in the best position to assess credibility, observe the demea-
nor of witnesses, resolve conflicting evidence, and determine the
weight of the evidence. As appellate court judges, we necessarily
depend on sentencing judges to make such fact-based determinations.
By not making these findings, the district court judge could not
determine whether, after setting aside the tainted testimony, the evi-
dence supported the drug quantities found and enhancements imposed
by a preponderance of the evidence. On remand the district court
judge was not entitled to rely on Judge Haden’s generalized findings
of fact, which did not identify and evaluate individually the various
witnesses who testified at the sentencing hearing. Judge Haden did
not know at the time of sentencing that some witnesses had perjured
themselves, and he made no specific credibility findings regarding the
remaining witnesses. Judge Faber did not see the testimony of the
remaining witnesses given and had no basis (beyond that which we,
too, have as an appellate court) to evaluate its credibility. As a result,
we have no way of knowing whether the testimony proffered by the
remaining witnesses, untainted by Detective Hart’s egregious miscon-
duct, could meet the government’s burden with respect to the chal-
lenged drug quantities and enhancements. It is quite likely that Judge
Haden’s findings of fact rested on the perjured testimony of Ursala
Dyess and the questionable testimony proffered by Detective Hart,
Trooper Henderson, and Benjamin Green. The government has failed
to show that those findings of fact—and the sentences they justified—
safely can rest on the testimony of the remaining witnesses instead.
Furthermore, the limited nature of the district court judge’s sen-
tencing hearing foreclosed proper consideration of the sentencing fac-
tors set forth in 18 U.S.C. § 3553(a). Reconsidering the sentences
following remand from this Court and Judge Haden’s death, the dis-
trict court judge stated:
The court delayed ruling on these motions pending decision
by the United States Supreme Court of [sic] United States
v. Booker, 125 S.Ct. 738 (2005). The court has reconsidered
Judge Haden’s sentences in these cases in light of Booker
and finds them to be reasonable and fully supported by cred-
ible evidence. In light of this evidence, if called upon to
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resentence these defendants, the court would give them the
same sentences Judge Haden imposed.
S.J.A. 390-91 (emphasis added).
Although a district court’s consideration of an alternative sentence
under Booker could normally cure a Booker error, the district court
judge’s curtailed hearing could not and did not cure the Booker errors
in Judge Haden’s original sentences.* Given the limited purpose of
the sentencing hearing on remand, the district court judge did not hear
any evidence regarding the factors set forth in § 3553(a). As a result,
he could not have made any of the factual findings required under
Booker, such as: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need for the
sentence imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense;
and (3) the need for the sentence imposed to provide the defendant
with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner. 18 U.S.C.
§ 3553(a); see United States v. Green, 436 F.3d 449, 455 (4th Cir.
2006) ("[T]he court must make factual findings, as appropriate or nec-
essary to carry out its sentencing function, and in every case give the
*As the majority acknowledges, Orange Dyess did not admit to any
specific drug quantities. Nevertheless, Orange Dyess was subject to a
base offense level of 36 and a 2-level enhancement for the presence of
a firearm during the offense and received a sentence of 235 months.
Without judicial factfinding, Orange Dyess would be subject to a total
offense level of 6 and criminal history category of I—a sentencing range
of 0-6 months, which is far less than the 235 months he received.
Similarly, Eric Spencer received a 3-level enhancement for his leader-
ship role in the offense. Without the enhancement, he would have
received a sentencing range of 188-235 months, which was less than the
262 months he received.
Finally, Calvin Dyess received a 2-level enhancement for the presence
of firearms, a 4-level enhancement for his leadership role in the offense,
and a 2-level enhancement for obstruction of justice. Without those
enhancements, Calvin Dyess would have been subject to a sentencing
range of 210-262 months, which is less than the life imprisonment he
received.
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reasons for the sentence imposed, as well as reasons for particular
deviations from the Sentencing Guidelines." (citing 18 U.S.C.
§ 3553(c))). Thus, without hearing any evidence relevant to sentenc-
ing and making his own findings by a preponderance of the evidence,
the district court could not fulfill its duty to consider the § 3553(a)
factors in accordance with our post-Booker precedent. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) ("[T]he court
shall consider [the Guidelines] range as well as other relevant factors
set forth in the guidelines and those factors set forth in § 3553(a)
before imposing the sentence."). Because the district court judge did
not implement the post-Booker remedy by fully considering the
§ 3553(a) factors, the Booker errors stemming from the sentences
cannot be deemed harmless.
As a result, the sentences suffer from two significant defects: (1)
the strong likelihood that the underlying findings of fact rested on
tainted testimony; and (2) Sixth Amendment error that was not reme-
died by the district court’s incomplete consideration of the factors set
forth in § 3553(a). A de novo sentencing hearing could have elimi-
nated the overwhelming appearance of impropriety that unfortunately
has hung over these proceedings. Now we are left with sentences that
may well have rested on tainted evidence.
For these reasons, I cannot join the majority in affirming these sen-
tences. I would vacate the sentences and remand for resentencing.
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