United States of America v.  LEVI JOHNSON, a/k/a Vi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4863 
LEVI JOHNSON, a/k/a Vi,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4007 
STOVER STOCKTON, a/k/a Big Ox,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-99-352-MJG)
Argued: June 3, 2003
Decided: July 30, 2003
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Melissa Maynard Moore, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Baltimore, Maryland; Gary Ticknor, Elkridge,

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Maryland, for Appellants. James G. Warwick, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James
Wyda, Federal Public Defender, Gary Christopher, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appel-
lants. Thomas M. DiBiagio, United States Attorney, Steven H. Levin,
Assistant United States Attorney, Andrea L. Smith, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Stover Stockton and Levi Johnson were tried together and con-
victed by a jury of conspiracy to sell and distribute heroin. They
appeal their convictions and sentences, raising several issues. Because
we find no reversible error, we affirm.
I.
Stover Stockton and Levi Johnson were indicted for conspiracy to
sell and distribute heroin in Baltimore, Maryland, between 1994 and
April 2000. They were also indicted for conspiracy to murder a U.S.
District Judge and a U.S. Attorney. Their two co-defendants pled
guilty before trial to the drug conspiracy count. During a month-long
jury trial in the District of Maryland, the government introduced evi-
dence about local drug dealers’ use of vials with different colored
caps as a branding device of sorts. Stockton primarily sold heroin
known as "red and white." Johnson sold "yellow and white." How-
ever, there is evidence, discussed below, that Stockton and Johnson
worked together at times. Both Stockton and Johnson were convicted
of the drug conspiracy, but the jury was unable to reach a verdict on
the two murder conspiracy charges.
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At sentencing the district court concluded that Stockton was sub-
ject to a two-level increase in his offense level for firearm possession,
U.S.S.G. § 2D1.1(b)(1), a two-level increase for causing significant
physical injury, § 5K2.2, and a two-level increase for his role in the
conspiracy, § 3B1.1(c). Given Stockton’s base offense level of 36, see
§ 2D1.1(a)(3); § 2D1.1(c)(2), his overall offense level was 42. At this
offense level the sentencing range is 360 months to life regardless of
the defendant’s criminal history category; as a result, the district court
declined to resolve a dispute over Stockton’s criminal history. The
court sentenced Stockton to 390 months.
Johnson began with the same base offense level, 36. § 2D1.1(c)(2).
He also received a two-level increase for firearm possession.
§ 2D1.1(b)(1). Based on evidence that Johnson committed a murder
as part of the conspiracy, the court raised his offense level to 43, pur-
suant to § 2D1.1(d)(1)’s cross reference to § 2A1.1 for drug crimes
involving murder. Finally, the court added a four-level increase
because of Johnson’s leadership role in the conspiracy. § 3B1.1(a).
His overall offense level, therefore, was 47. Because the minimum
sentence for this offense level is life, regardless of the defendant’s
criminal history category, the court also declined to make a specific
finding about Johnson’s criminal history. As required by the guide-
lines, the court sentenced Johnson to life in prison.
II.
Stockton raises several challenges to both his conviction and sen-
tence. We will address each in turn.
A.
Stockton first argues that although he was a member of a drug con-
spiracy, he was not a member of the one charged in the indictment
and found to exist by the jury. He says he was part of a conspiracy
to sell drugs under the "red and white" brand, while Johnson was sell-
ing drugs under the "yellow and white" brand. For this reason, he
claims that the government’s evidence was insufficient to connect
him to the primary yellow and white conspiracy.
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The government must prove that each defendant was connected to
the conspiracy beyond a reasonable doubt, but the connection does
not need to be extensive. See United States v. Strickland, 245 F.3d
368, 385 (4th Cir. 2001); United States v. Wilson, 135 F.3d 291, 306
(4th Cir. 1998); United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). The record shows that Stockton and Johnson were
seen together in a house with drug paraphernalia, that they were seen
together on a street corner where members of the yellow and white
conspiracy were selling drugs, that they sold drugs on the same cor-
ner, that they pooled their money to buy drugs in New York, and that
they worked together to mete out discipline. This is sufficient evi-
dence from which a reasonable jury could find that Stockton was in
a drug conspiracy with Levi Johnson. See, e.g., United States v.
Banks, 10 F.3d 1044, 1055-56 (4th Cir. 1993).
B.
Stockton next argues that the district court erred by refusing to give
his requested jury instruction on multiple conspiracies. We review
jury instructions to determine whether any errors in instruction are
prejudicial based on the record as a whole. United States v. Ellis, 121
F.3d 908, 923 (4th Cir. 1997). The judgment is not subject to reversal
if, given the full context of the trial, "the charge was not misleading
and contained an adequate statement of the law to guide the jury’s
determination." United States v. United Med. & Surgical Supply
Corp., 989 F.2d 1390, 1406-07 (4th Cir. 1993) (quoting United States
v. Park, 421 U.S. 658, 675 (1975)). A trial court’s refusal to give a
defendant’s requested instruction is reversible error if the instruction:
(1) was correct; (2) was not substantially addressed by the court’s
instructions; and (3) dealt with an issue "so important[ ] that failure
to give the requested instruction seriously impaired the defendant’s
ability to conduct his defense." United States v. Lewis, 53 F.3d 29, 32
(4th Cir. 1995) (internal quotation marks omitted).
Stockton requested a specific instruction on multiple conspiracies.
The district court instructed the jury on multiple conspiracies, but
used language different than that requested by Stockton. As part of its
instruction the court said that the jury could find Stockton guilty of
conspiracy if the evidence established beyond a reasonable doubt that
"at some time, even if just one time, [he] knowingly and intentionally
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joined with others to accomplish the objective of selling yellow and
white brand heroin." As noted above, the circumstances linking
Stockton to the conspiracy need not have been extensive. See, e.g.,
Strickland, 245 F.3d at 385. Moreover, the evidence in this case dem-
onstrated that Stockton cooperated with Johnson on many occasions.
The court’s conspiracy instructions, therefore, were not prejudicial in
light of the record as a whole. See Ellis, 121 F.3d at 923.
C.
Stockton also claims that the district court erred in admitting evi-
dence of a shooting that was arguably outside the time frame of the
conspiracy. The court allowed testimony by another prominent mem-
ber of the conspiracy, Hayes, that he shot someone named Jamal on
January 1, 1994. This shooting was within the time frame of the con-
spiracy since the conspiracy was alleged to have begun in 1994.
Hayes went on to testify, however, that the reason he shot Jamal was
that Jamal was going to testify against Stockton about a shooting that
happened well before the 1994 start of the conspiracy. Stockton says
the testimony about the reason for the shooting was evidence of a
prior bad act that should have been excluded because it was substan-
tially more prejudicial than probative.
We review the district court’s evidentiary ruling for abuse of dis-
cretion. United States v. Hernandez, 975 F.2d 1035, 1038 (4th Cir.
1992). Moreover, any error is subject to a harmless error analysis; we
must consider whether "it is probable that the error could have
affected the verdict reached by the particular jury in the particular cir-
cumstances of the trial." Id. at 1041 (internal quotation marks omit-
ted). The admissible evidence introduced about Stockton’s drug
activities and his acts of violence, including his involvement in the
planning of a murder, was extensive. As a result, even if the district
court erred in admitting evidence connecting Stockton to a shooting
that occurred before the start of the conspiracy, we conclude that it
is improbable that this item of evidence affected the jury’s verdict.
D.
Stockton also argues that the district court erred in allowing the
prosecution to refresh a witness’s recollection on two occasions. In
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neither instance, Stockton argues, had the witness forgotten the
answer to the question. Both instances involved the prosecution’s
questioning of Azure Johnson.
First, the prosecutor asked Azure Johnson about the events sur-
rounding threats Levi Johnson made against Azure’s boyfriend. The
prosecutor asked Azure whom she had seen in the car with Levi John-
son when he made the threats. Azure Johnson testified that she was
"not sure" because the car’s windows were tinted and she therefore
could only see Levi Johnson. The court allowed the prosecution to
"refresh" her memory, and she then testified that three other people,
including Stockton, were in the car with Levi Johnson when he was
discussing threats to assault her boyfriend.
A witness’s recollection may be refreshed when she has forgotten
something, but her memory cannot be refreshed about something she
could not have known or seen. Cf. United States v. Morlang, 531 F.2d
183, 191 (4th Cir. 1975) (requiring that the witness’s recollection be
exhausted before it is refreshed). Here, Azure Johnson testified that
she could not see who was in the car, not that she did not remember
who was in the car. However, even if permitting the prosecutor to
refresh her recollection was an abuse of the district court’s discretion,
it was not prejudicial and therefore not reversible error. Cf. United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 235 (1940). As noted
above, other evidence links Johnson and Stockton together and sug-
gests that they worked together to commit acts of violence. In light
of this other evidence, Azure Johnson’s ultimate testimony that Stock-
ton was in the car with Levi Johnson when he threatened her boy-
friend is unlikely to have affected the verdict. Hernandez, 975 F.2d
at 1041.
Second, Stockton claims as error another line of questioning
involving Azure Johnson. She initially testified that she had never had
any interaction with Stockton. A few minutes later, however, the
prosecution asked her if she recalled any interactions with Stockton.
Without waiting for her to respond (and with the court’s permission),
the prosecution began to refresh her recollection. Stockton again
argues that her memory was not sufficiently exhausted before the
prosecutor began to refresh her recollection. The context of the first
question, however, is unclear and may have been understood by
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Azure Johnson and the court to refer only to whether Azure had inter-
acted with Stockton at a particular time. The district court, with a
closer view of the events at trial, had a better understanding of the
witness’s and the prosecution’s meanings and whether the witness
appeared to have exhausted her recollection of events. We cannot say,
therefore, that the district court abused its discretion by allowing the
prosecution to refresh Azure’s memory during a separate, if related,
line of questioning about Stockton.
E.
We turn next to Stockton’s challenges to his sentence. We review
the district court’s factual findings at sentencing for clear error, and
we review its legal interpretation of the Sentencing Guidelines de
novo. United States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000).
1.
Stockton argues that the court failed to conduct the individualized
assessment required to determine the quantity of drugs attributable to
him at sentencing. See United States v. Irvin, 2 F.3d 72, 78 (4th Cir.
1993). The sentencing guidelines provide that a defendant who is part
of joint criminal activity is responsible for "all reasonably foreseeable
acts and omissions" of the activity. U.S.S.G. § 1B1.3(a)(1)(B). The
commentary explains that the defendant is responsible for the quantity
of drugs "with which he was directly involved" and "all reasonably
foreseeable quantities of contraband that were within the scope of the
criminal activity that he jointly undertook." U.S.S.G. § 1B1.3 cmt.
n.2. This means that the district court must find the quantity of drugs
that was a foreseeable part of the conspiracy (to the defendant) and
must find that the conduct of others involving this quantity of drugs
furthered the activity the defendant agreed to undertake. Banks, 10
F.3d at 1056-57.
The district court was quite clear on the findings it was required to
make, and it made the requisite findings for Stockton. The court
clearly found that the full quantity of drugs was foreseeable to Stock-
ton. J.A. 1791 (noting that Stockton was "well aware of the full scope
of the enterprise which he joined and assisted"). The court also found
that the conduct of other participants was in furtherance of the joint
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criminal activity to which Stockton consented. See id. (finding that
Stockton was "intimately involved with the operation"); see also J.A.
1788 ("Stockton affirmatively acted with, and as part of, the ‘Yellow
and White’ operation.") The district court therefore made the appro-
priate findings. Moreover, the court did so after fully considering
Stockton’s claim that he was a member of a separate conspiracy. The
court rejected this claim, finding that Stockton was significantly
involved in the yellow and white conspiracy. We cannot say that these
findings are clearly erroneous. See Banks, 10 F.3d at 1057.
2.
Stockton argues that the district court erred in giving him a two-
level enhancement pursuant to U.S.S.G. § 3B1.1(c) for having a lead-
ership role. The district court found that Stockton did not have a lead-
ership role in the overall conspiracy, but found that he did have a
leadership role in a "subsidiary related operation." At the govern-
ment’s request, the court later explained this seemingly contradictory
finding, analogizing Stockton’s group to a corporate subsidiary under
the same umbrella as the primary yellow and white group. The court
thus found that Stockton was in fact a leader, but a leader of a subset
of the overall conspiracy. These findings by the district court are not
clearly erroneous. See Banks, 10 F.3d at 1057.
3.
Finally, Stockton argues that he should have received a downward
adjustment under § 3B1.2 for having only a minor role in the conspir-
acy. The district court swiftly rejected this contention, finding that
Stockton "was a significant participant" in the conspiracy. To qualify
for a minor role adjustment, Stockton was required to show that he
was "substantially less culpable than the average participant."
U.S.S.G. § 3B1.2 cmt. n.3. Stockton presented no evidence to satisfy
this requirement. The district court’s finding that Stockton was a sig-
nificant participant in the conspiracy is not clearly erroneous. See
Banks, 10 F.3d at 1057.
III.
Levi Johnson appeals his conviction and sentence on two grounds.
First, he argues that his trial should have been severed from that of
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Stover Stockton. Second, he says that he should not have received the
cross-referenced sentence enhancement for murder.
A.
We first address the district court’s denial of Johnson’s motion for
severance. We review the denial of a motion to sever under Rule 14
for abuse of discretion. United States v. Najjar, 300 F.3d 466, 473
(4th Cir. 2002). Joinder is favored in conspiracy cases. United States
v. Tedder, 801 F.2d 1437, 1450 (4th Cir. 1986). To demonstrate that
the district court erred in denying his motion for severance, Johnson
must show actual prejudice from having his case tried with Stock-
ton’s. Najjar, 300 F.3d at 473. Johnson, however, points to no actual
prejudice. He provides no reason for us to believe that he would not
have been convicted of a drug conspiracy if he had been tried sepa-
rately from Stockton. We conclude, therefore, that the district court
did not abuse its discretion in denying Johnson’s motion for sever-
ance.
B.
Lastly, we consider Johnson’s argument that the cross-reference to
murder raised his sentence so much that he is being unfairly punished
for a crime of which he was not convicted. His "real complaint is that
he was, in effect, tried and sentenced for first degree murder without
the benefit of a jury." United States v. Carter, 300 F.3d 415, 427 (4th
Cir. 2002) (internal quotation marks omitted); Appellants’ Br. at 54
(quoting Carter). If Johnson is correct, this would be a violation of
due process.
We have said, however, that cross-references in the Sentencing
Guidelines do not raise due process problems. See, e.g., Carter, 300
F.3d at 427 (noting that "this method of ‘real offense’ sentencing does
not offend the Constitution") (internal quotation marks omitted).
Moreover, the Supreme Court has allowed sentencing enhancements
based on activity that formed the basis for charges of which the defen-
dant was actually acquitted. United States v. Watts, 519 U.S. 148,
153-54 (1997). And while the Supreme Court has noted that in some
cases the enhancement might so dramatically increase the sentence
that some additional protections might be warranted, see Watts, 519
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U.S. at 156-57, this is not such a case. The district court determined
at sentencing that even without the murder cross-reference, Johnson’s
offense level would have been 44. That offense level also carries a
mandatory sentence of life imprisonment. We therefore find no due
process violation in Johnson’s case from the sentence enhancement
pursuant to the murder cross-reference.
IV.
For the foregoing reasons, we affirm the convictions and sentences
of Stockton and Johnson.
AFFIRMED
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