United States of America v. Dorlouis, 107 F.3d 248, 257 4th Cir. 1997 . Under the circumstances of this case, we…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4420
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARYL W. SMITH, a/k/a D-Nice,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (CR-03-39)
Submitted: May 25, 2005 Decided: July 11, 2005
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Kevin T. Tipton, CLAGETT, GOREY, CASTEEL & TIPTON, P.L.L.C.,
Fairmont, West Virginia, for Appellant. Thomas E. Johnston, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Daryl W. Smith appeals his convictions and 360-month
sentence for possession with intent to distribute five or more
grams of cocaine base, conspiracy to distribute fifty or more grams
of cocaine base, and aiding and abetting the distribution of
cocaine base within 1000 feet of a playground. Finding no error in
Smith convictions, we affirm the convictions. However, because the
district court’s imposition of sentence violated Smith’s Sixth
Amendment right to trial by jury, we vacate the sentence and remand
for further proceedings.
Smith claims that the district court erred by denying his
motion for mistrial after one of the jurors made an inappropriate
comment during deliberations. The decision of whether to grant a
motion for a mistrial is left to the broad discretion of the trial
court. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.
1997). Under the circumstances of this case, we see no abuse of
discretion. The jury promptly suspended deliberations when the
comments were made and referred the matter to the court. The court
voir dired each juror individually and determined each was willing
to consider all of the evidence fairly and impartially. Finally,
the court dismissed the offending juror before allowing the jury to

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1To the extent Smith assigns error to the district court’s
decision to allow the jury to continue deliberations with eleven
jurors, we find no error. See United States v. Fisher, 912 F.2d
728, 733 (4th Cir. 1990).
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return to deliberations. Under these circumstances we find no
error.1
Smith next claims the district court erred by refusing to
allow him to impeach a Government witness with a fourteen year old
bribery conviction. Relevant prior convictions may be used for
impeachment purposes subject to certain limitations. Fed. R. Evid.
609(a). These limitations preclude the use of a conviction more
than ten years old except where the probative value of such a
conviction substantially outweighs its prejudicial value. Fed. R.
Evid. 609(b). This case does not involve the sort of rare and
exceptional circumstances that would warrant use of the conviction
at issue for impeachment. See United States v. Cavender, 578 F.2d
528, 531 (4th Cir. 1978).
Smith also claims he was denied his Sixth Amendment right
to confront witnesses by the district court’s ruling that
effectively precluded him from impeaching Government witnesses with
memoranda of interviews completed by Government agents. Smith
asserts the material falls within the scope of the Jencks Act, 18
U.S.C. § 3500 (2000). This court has repeatedly held that such
memoranda fall outside the scope of the Jencks Act unless adopted
by the witness. See United States v. Roseboro, 87 F.3d 642, 645

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2Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Smith’s sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
3Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
See Hughes, 401 F.3d at 546. The court should consider this
sentencing range along with the other factors described in 18
U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that
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(4th Cir. 1996); United States v. Hinton, 719 F.2d 711, 722 (4th
Cir. 1983). Smith concedes no such adoption was made.
Furthermore, the court did not err in precluding Smith from
providing the witnesses with copies of the memoranda in order that
they could adopt or reject the memoranda as their own statements.
Accordingly, we find no error.
Finally, Smith claims that the district court’s
imposition of sentence violates his Sixth Amendment right to trial
by jury. Because we conclude that the district court’s application
of the Sentencing Guidelines resulted in an increase to Smith’s
Guidelines range on the basis of facts not found by the jury beyond
a reasonable doubt, we agree. 2 See United States v. Booker, 125 S.
Ct. 738 (2005); United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). Accordingly, we vacate Smith’s sentence and remand for
further proceedings consistent with Booker and Hughes.3 We affirm

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sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C. §
3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47.
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Smith’s convictions. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED

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