United States of America v.  Christopher White

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4578 
CHRISTOPHER WHITE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-98-358-S)
Argued: December 5, 2000
Decided: February 1, 2001
Before WILKINS and NIEMEYER, Circuit Judges, and
Terrence W. BOYLE, Chief United States District Judge
for the Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Niemeyer and Chief Judge Boyle joined.
COUNSEL
ARGUED: George Pius Adams, Baltimore, Maryland, for Appellant.
James McCormick Webster, III, Assistant United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.

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OPINION
WILKINS, Circuit Judge:
Christopher White appeals his convictions and sentence for drug
trafficking. White argues, inter alia, that counsel for the Government
committed prosecutorial misconduct by withholding material exculpa-
tory information in violation of Brady v. Maryland, 373 U.S. 83
(1963), and its progeny and by presenting perjured testimony at sen-
tencing. We reject these contentions and White’s other challenges. In
supplemental briefing, White raises the additional claim that his 360-
month sentence, imposed pursuant to the sentencing guidelines, is
invalid in light of the recent Supreme Court decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). We conclude that even if the sen-
tence imposed by the district court is plainly erroneous, the error did
not affect White’s substantial rights. Accordingly, we affirm as to this
contention as well.
I.
White participated in a large-scale narcotics conspiracy that oper-
ated in the Reservoir Hill area of Baltimore, Maryland. White was a
member of the conspiracy from 1994 until his arrest in 1998, during
which time he sold drugs, acted as a lookout, and performed other
functions in furtherance of the conspiracy. Law enforcement officers
observed White engaging in drug sales on numerous occasions. Most
of these sales took place near the intersection of Lakeview and White-
lock Streets; however, White was also observed engaging in the sale
of narcotics at a nearby location on Bloom Street.
Based on evidence of these activities, White was charged with, and
convicted of, conspiracy to possess with the intent to distribute and
to distribute heroin, cocaine, and cocaine base, see 21 U.S.C.A. § 846
(West 1999) (Count One), and possession with the intent to distribute
and distribution of cocaine, see 21 U.S.C.A. § 841(a) (West 1999)
(Count Two). He now appeals, raising numerous challenges to his
convictions and sentence. We discuss below White’s claims related to
the grand jury testimony of two cooperating witnesses and his chal-
lenge to his sentence under Apprendi. We have carefully reviewed the
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remainder of White’s claims and determined them to be without merit.1
Accordingly, we will not discuss them further.
II.
We turn first to White’s claims concerning the grand jury testi-
mony of Ralph Cannady and Gregory Hudson. Initially, White con-
tends that the Government violated Brady v. Maryland by failing to
provide him with transcripts of Cannady’s and Hudson’s testimony.
White also maintains that the Government suborned perjury by allow-
ing a Government witness to mischaracterize Cannady’s and Hud-
son’s testimony.
A.
Suppression by the Government of evidence favorable to the
defense that is material to the outcome of a trial or sentencing pro-
ceeding violates due process, irrespective of the motive of the prose-
cutor. See Brady, 373 U.S. at 87. Undisclosed evidence is material
when its cumulative effect is such that "‘there is a reasonable proba-
bility that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.’" Kyles v. Whitley, 514
U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.)); see id. at 436-37
(explaining that "suppressed evidence [must be] considered collec-
tively, not item by item"). A "reasonable probability" is one sufficient
to undermine confidence in the outcome. See id. at 434.
With these principles in mind, we turn to an examination of the
grand jury testimony of Ralph Cannady, which White asserts con-
tained materially exculpatory information.2 In July 1998, Cannady
1We express no view regarding the merits of White’s claims that his
trial counsel was constitutionally deficient. Because the record does not
conclusively demonstrate that White’s trial counsel was ineffective, these
claims should be raised in a separate proceeding pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2000). See United States v. King, 119 F.3d 290, 295
(4th Cir. 1997).
2Because Hudson’s grand jury testimony took place after White’s trial,
it cannot be said that the Government’s failure to disclose it constituted
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testified that the conspiracy "split" approximately five years prior to
his testimony and that White established his own narcotics-dealing
operation at Bloom Street. J.A. 81. Although his brief is not clear,
White appears to argue that timely disclosure of this aspect of Canna-
dy’s testimony would have allowed White to present a defense that,
although he was a drug dealer, he was not part of the narcotics con-
spiracy alleged by the Government.3 In light of the overwhelming evi-
dence that White was involved in narcotics sales at Lakeview and
Whitelock following the "split" alleged by Cannady, there is no rea-
sonable probability that a defense based upon Cannady’s grand jury
testimony would have been successful.
B.
Next, White asserts that the Government suborned perjury by
Trooper George Cunningham of the Maryland State Police. During
the sentencing hearing, Trooper Cunningham testified regarding drug
quantity. His testimony was based upon surveillance of narcotics sales
during the investigation of the conspiracy; interviews with people
who purchased cocaine and heroin from the conspiracy; interviews
with cooperating witnesses, including Cannady and Hudson; and the
grand jury testimony of Cannady and Hudson. White argues that
Trooper Cunningham substantively misstated the grand jury testi-
mony of Cannady and Hudson by asserting that those witnesses
divulged that the conspirators sold heroin in "regular" and "jumbo"
capsules, respectively containing one tenth of a gram and one quarter
of a gram of heroin. White further asserts that the Government
engaged in prosecutorial misconduct when it failed to correct these
misstatements.
suppression of evidence that may have been material to White’s guilt or
innocence. And, although the Brady duty extends to evidence that is
material to sentencing, see Brady, 373 U.S. at 87, White does not con-
tend that Hudson’s testimony was exculpatory as to his sentence. Rather,
he maintains that Trooper Cunningham committed perjury by mischarac-
terizing Hudson’s testimony. This claim is addressed below in Part II.B.
3The defense actually presented by White was that he was not a drug
dealer at all. Cannady’s testimony was not exculpatory as to this defense.
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A conviction acquired through the knowing use of perjured testi-
mony by the prosecution violates due process. See Napue v. Illinois,
360 U.S. 264, 269 (1959). This is true regardless of whether the pros-
ecution solicited testimony it knew to be false or simply allowed such
testimony to pass uncorrected. See Giglio v. United States, 405 U.S.
150, 153 (1972); Napue, 360 U.S. at 269. The knowing use of per-
jured testimony constitutes a due process violation when "‘there is
any reasonable likelihood that the false testimony could have affected
the judgment of the jury.’" Kyles, 514 U.S. at 433 n.7 (quoting United
States v. Agurs, 427 U.S. 97, 103 (1976)).
We conclude that no due process violation occurred here. White
does not assert that Trooper Cunningham’s testimony concerning the
quantity of heroin in the capsules sold by the conspiracy was inaccu-
rate; he merely asserts that this information did not come from Can-
nady or Hudson. However, Trooper Cunningham’s testimony during
the sentencing hearing, as noted above, was based upon many sources
in addition to Cannady’s and Hudson’s grand jury testimony. And,
Trooper Cunningham’s testimony regarding the size of heroin cap-
sules sold in the Baltimore area was substantially confirmed by testi-
mony from Agent Kim Thomson with the Drug Enforcement
Administration. Under these circumstances, there simply is no reason-
able likelihood that Trooper Cunningham’s statements, even if they
inaccurately summarized the grand jury testimony of Cannady and
Hudson, affected the determination of drug quantity.
III.
During the pendency of this appeal, the Supreme Court held that
"[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt."
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000). We granted
the parties’ motions to file supplemental briefs regarding the possible
impact of Apprendi on White’s sentence. White contends that his 360-
month sentence is invalid in light of Apprendi because, he maintains,
it exceeds the maximum statutory penalty authorized by the jury ver-
dict.4
4White also maintains that he was entitled to a jury determination of
the factors that served to increase his offense level under the Sentencing
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Because White failed to raise this argument before the district
court, our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). In order to establish our
authority to notice an error not preserved by a timely objection, White
must show that an error occurred, that the error was plain, and that
the error affected his substantial rights. See Olano, 507 U.S. at 732;
United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996). Even if
White can satisfy these requirements, correction of the error remains
within our sound discretion, which we "should not exercise . . . unless
the error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’" Olano, 507 U.S. at 732 (second alteration
in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985));
see United States v. David, 83 F.3d 638, 641 (4th Cir. 1996).
As noted previously, White was convicted of two drug-trafficking
offenses: conspiracy to possess with the intent to distribute and to dis-
tribute heroin, cocaine, and cocaine base, in violation of 21 U.S.C.A.
§ 846; and possession with the intent to distribute and distribution of
cocaine, in violation of 21 U.S.C.A. § 841(a).5 Based on its determi-
nation that White should be held accountable for more than 30 kilo-
grams of heroin, the district court concluded that White was subject
to a guideline sentencing range of 360 months to life imprisonment.
The court imposed concurrent terms of 360 months imprisonment on
each count of conviction. See 21 U.S.C.A. § 841(b)(1)(A) (West
1999) (providing that violation of § 841(a) involving one kilogram or
more of heroin subjects a defendant to a term of imprisonment of "not
. . . less than 10 years or more than life").
Guidelines. This court has previously held, however, that the constitu-
tional rule announced in Apprendi does not prohibit a district court from
finding, by a preponderance of the evidence, facts relevant to the applica-
tion of the guidelines. See United States v. Lewis, 235 F.3d 215, 218-19
(4th Cir. 2000); United States v. Kinter 235 F.3d 192, 198-202 (4th Cir.
2000). Therefore, White cannot establish plain error on this claim.
521 U.S.C.A. § 841(b) sets forth the penalties for both offenses. See 21
U.S.C.A. § 846 (providing that "[a]ny person who . . . conspires to com-
mit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which
was the object of the . . . conspiracy").
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White argues, essentially, that because drug quantity was not
charged as an element of the offense and found by the jury beyond
a reasonable doubt, the maximum statutory term of imprisonment for
each count of conviction is 20 years, or 240 months. See 21 U.S.C.A.
§ 841(b)(1)(C) (West 1999). White’s position is supported by deci-
sions from several other circuits.6 See United States v. Baltas, ___
F.3d ___, 2001 WL 1001, at *13 (1st Cir. Jan. 2, 2001); United States
v. Nance, ___ F.3d ___, 2000 WL 1880629, at *3-*4 (7th Cir. Dec.
29, 2000); United States v. Jones, 2000 WL 1854077, at *5 (10th Cir.
Dec. 19, 2000); United States v. Page, 232 F.3d 536, 543 (6th Cir.
2000); United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000);
United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000);
United States v. Aguayo-Delgado, 220 F.3d 926, 930 (8th Cir.), cert.
denied, 121 S. Ct. 600 (2000); see also United States v. Nordby, 225
F.3d 1053, 1058-59 (9th Cir. 2000) (holding that absent a jury finding
of drug quantity, statutory maximum term of imprisonment for viola-
tion of § 841(a) involving marijuana is five years pursuant to 21
U.S.C.A. § 841(b)(1)(D) (West 1999)). Pursuant to the rationale of
these decisions, if a defendant is convicted of a § 841(a) offense
involving heroin but the jury makes no finding regarding drug quan-
tity, the maximum statutory penalty for that offense is 240 months.
This is so even if the district court determines at sentencing that the
defendant should be held accountable for a quantity of narcotics that
would justify a more severe statutory penalty. Although the Govern-
ment concedes here that the maximum statutory penalty for a viola-
tion of § 841(a) involving a Schedule I or II substance is 240 months
in the absence of a jury finding of drug quantity, we are aware that
in another appeal pending before this court the Government has main-
tained that the statutory maximum penalty for a violation of § 841(a)
is always life imprisonment.
We need not decide whether White is correct. Only for purposes
of this appeal we assume, without deciding, that the sentence imposed
by the district court was erroneous. We further assume, without decid-
ing, that the error is plain. Nevertheless, we affirm White’s sentence
6This court reached a similar holding in United States v. Angle, 230
F.3d 113, 123 (4th Cir. 2000). However, Angle has been vacated and
rehearing en banc granted.
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because White has not shown that the error affected his substantial
rights.
In order to establish that the error affected his substantial rights,
White must demonstrate that it was prejudicial, i.e., that it "actually
affected the outcome of the proceedings." United States v. Hastings,
134 F.3d 235, 240 (4th Cir. 1998); see Olano, 507 U.S. at 734. Thus,
White must demonstrate that the 360-month sentence imposed by the
district court was longer than that to which he would otherwise be
subject. We conclude that White cannot make this showing.
In recent times, the federal sentencing process has been altered by
the enactment of statutory minimum penalties, increases in statutory
maximum penalties, and the introduction of the sentencing guidelines.
To a large extent, these competing influences are reconciled by stat-
utes and guideline provisions that recognize the preeminent role of
statutory maximum and minimum penalties. For example, while a dis-
trict court may depart below the sentencing range established by the
guidelines, such a departure generally may not result in a sentence
below the minimum term specified in the offense of conviction. See
18 U.S.C.A. § 3553(e) (West 2000) (limiting authority of district
court to depart below statutory minimum to cases in which the Gov-
ernment has moved for such a departure on the basis of substantial
assistance); United States v. Patterson, 38 F.3d 139, 146 n.8 (4th Cir.
1994) (observing that "[t]he district court could have sentenced below
the statutory minimum only if this departure was based on the Gov-
ernment’s motion for downward departure due to Defendant’s sub-
stantial assistance"); cf. 18 U.S.C.A. § 3553(f) (West 2000) (limiting
applicability of statutory minimum penalties for certain drug offenses
when specified criteria are met); U.S. Sentencing Guidelines Manual
§ 5C1.2 (1998) (same). Similarly, in the event the guideline sentence
for a single count of conviction exceeds the applicable statutory maxi-
mum, the statutory maximum becomes the guideline sentence. See
U.S.S.G. § 5G1.1(a).
In the case of multiple counts of conviction, the guidelines instruct
that if the total punishment mandated by the guidelines exceeds the
highest statutory maximum, the district court must impose consecu-
tive terms of imprisonment to the extent necessary to achieve the total
punishment. See U.S.S.G. § 5G1.2(d). For example, suppose a defen-
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dant is convicted of three offenses, each with a statutory maximum
term of five years (60 months) imprisonment. If the district court
determines that the appropriate sentence under the guidelines is 156
months, § 5G1.2(d) requires the imposition of consecutive terms on
each count of conviction until the guideline punishment is achieved.
Applying these principles here, it is evident that White’s substantial
rights were not affected by the imposition of a 360-month term of
imprisonment on each count of conviction. Even if White is correct
that the maximum penalty for each of his offenses was 240 months,
the district court would still have been obligated to calculate a guide-
line sentence by making a finding regarding the quantity of narcotics
attributable to White.7 And, in light of its determination that White’s
total punishment under the guidelines should be 360 months impris-
onment, the district court would have been obligated to reach that
total sentence by imposing a term of imprisonment of 240 months or
less on each count of conviction and ordering those terms to be served
consecutively to achieve the total punishment mandated by the guide-
lines. See id.; Page, 232 F.3d at 544-45.
IV.
For the reasons set forth above, we affirm White’s convictions and
sentence.
AFFIRMED
7In determining the applicable guideline range, the court of course
would have followed the normal procedures for determining the guide-
line range in a multiple-conviction case, including application of the per-
tinent grouping rules. See U.S.S.G. §§ 3D1.2(d), 3D1.3(b); see also
U.S.S.G. Ch.3, Pt.D, illustration 3.
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