United States of America v.  John Wayne Cardwell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4585 
JOHN WAYNE CARDWELL,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4835 
LEO HINSON,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Norman K. Moon, District Judge.
(CR-02-25)
Argued: September 19, 2005
Decided: December 30, 2005
Before WILLIAMS and MICHAEL, Circuit Judges,
and James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed in part; vacated and remanded in part by published opinion.
Judge Williams wrote the opinion, in which Judge Michael and Judge
Dever joined.

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COUNSEL
ARGUED: Craig Weston Sampson, Richmond, Virginia; Randy Vir-
lin Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS, P.C.,
Roanoke, Virginia, for Appellants. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Thomas K. Maher, Chapel Hill, North Caro-
lina, for Appellant Leo Hinson. John L. Brownlee, United States
Attorney, Donald R. Wolthuis, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Vir-
ginia, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Leo Hinson and John Cardwell were convicted on various murder-
for-hire charges. In addition, Hinson was convicted on a felon-in-
possession charge, which was tried at the same time as the other
counts. Hinson and Cardwell were each sentenced based, in part, on
facts found by the judge. On appeal, Hinson argues that the district
court erred in denying his motions to sever and to suppress, Cardwell
argues that the evidence was insufficient to sustain his convictions,
and both men argue that their sentences violate the Sixth Amendment.
For the following reasons, we hold that the district court did not err
in denying Hinson’s motions to sever and to suppress, that the evi-
dence was sufficient to sustain Cardwell’s convictions, and that the
district court, which did not have the benefit of the Supreme Court’s
decision in United States v. Booker, 125 S.Ct. 738, 750-51 (2005),
plainly violated the Sixth Amendment in mandatorily enhancing Hin-
son’s and Cardwell’s sentence based on judge-found facts. We there-
fore affirm Hinson’s and Cardwell’s convictions, and, because the
district court’s sentencing error seriously affects the fairness, integrity
or public reputation of judicial proceedings, we vacate their sentences
and remand for resentencing.
I. Factual Background
In the fall of 1999, federal and state law enforcement agents in the
Eastern District of North Carolina began investigating Hinson and
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Eric Brown on suspicion of drug trafficking. After being contacted by
the agents and informed of the investigation, Brown agreed to cooper-
ate in the investigation of Hinson. At the agents’ direction, Brown
met with Hinson and recorded their conversations on three separate
occasions in the fall of 2000. Hinson, however, was guarded in these
discussions and did not incriminate himself. Hinson later learned of
Brown’s cooperation with the authorities.
Thomas Cole was a methamphetamine dealer. He was familiar with
both Hinson and Cardwell, having attempted to sell Hinson and Card-
well methamphetamine at some time in the past. In the summer of
2001, Cole was arrested in the Western District of Virginia on unre-
lated drug trafficking charges and found in possession of documents
linking him to Hinson. Like Brown, Cole agreed to assist agents in
their investigation of Hinson.
Cole contacted Cardwell to arrange a meeting with Hinson, to
whom he proposed to give helpful information about the investiga-
tion. On October 23, 2001, the three men met in a restaurant in Dan-
ville, Virginia. Cole recorded the conversation. Hinson complained of
his legal troubles, focusing in particular on Brown. Cole asked if Hin-
son could "get to" Brown. (J.A. at 367.) Hinson said that Brown
needed to be killed, and Cole indicated he would be willing to do it.
Hinson asked Cole his price, and Cole said he would do the job for
$25,000. Hinson offered him $50,000 and informed Cole he would
need to kill Brown’s wife as well. The men agreed that Cardwell
would give Cole a picture of the Browns and the Browns’ address so
Cole could carry out the murder.
Over the next few months, Cole and Cardwell spoke several times.
In these conversations, the two men had coded conversations from
which a reasonable juror could have inferred that Hinson had drugs
he was willing to sell Cole. More importantly, they also discussed the
Browns. Cardwell assured Cole that Hinson was "serious" about kill-
ing the Browns and agreed to be the "middleman" in the deal, (J.A.
at 393, 536), because Hinson was nervous about dealing with Cole
directly due to the North Carolina investigation against him and what
he thought was Cole’s ongoing drug trafficking. In his duty as mid-
dleman, Cardwell agreed to deliver the money from Hinson to Cole
after Cole killed the Browns.
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Cardwell, however, never arranged any drug deals between Hinson
and Cole, nor did he give Cole the Browns’ picture and address. The
agents became frustrated with the investigation and instructed Cole to
bypass Cardwell and instead attempt to deal directly with Hinson.
On January 29, 2002, Cole and Hinson met at Hinson’s home to
discuss potential drug deals and the plan to murder the Browns. Hin-
son instructed Cole to carry out the murders, described the Browns to
Cole, provided a way for him to find them, and gave him $1,000 in
traveling money. Agents later arranged for a newspaper in the town
where the Browns lived to run a false story about the Browns’ disap-
pearance. On February 7, 2002, Cole brought the article to Hinson,
who, after expressing his satisfaction, burned it to conceal evidence
of his link to the (assumed) murders. At that time, Hinson paid Cole
$4,000, and agreed to pay some of the balance of the $50,000 by giv-
ing him a kilogram of cocaine.
Later that evening, sometime between 11:00 p.m. and midnight,
Agents High and Sheetz of the Drug Enforcement Administration in
Roanoke, Virginia, (the Agents) executed a search warrant of Hin-
son’s residence. When the Agents arrived at Hinson’s residence to
arrest him, they knocked and announced their presence several times
before Hinson came to the door. When Hinson opened the door, he
was immediately arrested and told he was under arrest for his partici-
pation in the murder-for-hire collusion. Once in custody, Hinson was
advised of all his rights and he stated that "he understood [them]."
(J.A. at 556.) He did not, however, specifically invoke any of his
rights. The Agents searched Hinson’s house and discovered a loaded
gun.
Fifteen to twenty minutes after the arrest, the Agents transported
Hinson to Roanoke City Jail, which was approximately two hours
away. Hinson was handcuffed with his hands in front of him and
placed in the front seat of the Agents’ car. An hour-and-a-half or so
into the drive, Hinson began talking about farming, and continued to
talk for about twenty-to-thirty minutes. As the car approached Roa-
noke, Agent High asked Hinson why he had not immediately come
to the door when they announced their presence. Hinson stated, "if I
knew [sic] it was the police, I would have gotten a gun," and "there
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would have been a gunfight [because I would] rather be killed than
go to jail." (J.A. at 560, 622.)
II. Procedural History
Hinson and Cardwell were charged in the United States District
Court for the Western District of Virginia with (1) solicitation to com-
mit murder, 18 U.S.C.A. § 373 (West 2000), (2) attempted murder of
a government witness, 18 U.S.C.A. § 1114 (West 2000), (3) witness
tampering, 18 U.S.C.A. § 1512(a)(1)(A) (West 2000), (4) retaliating
against a government witness, 18 U.S.C.A. § 1513(a)(1)(B) (West
2000), and (5) conspiracy to murder a government witness, 18
U.S.C.A. § 371 (West 2000) (collectively, the murder-for-hire
counts). In addition, Hinson was charged with being a felon in posses-
sion of a gun, 18 U.S.C.A. § 922(g)(1) (West 2000). Hinson moved
to sever the gun count from the murder-for-hire counts. The district
court denied the motion, holding that the counts were related because
Hinson’s gun possession and involvement in the murder-for-hire
cabal were each related to his drug trafficking and that Hinson would
suffer no prejudice from the joinder.
At trial, Hinson moved to suppress his statement to Agent High
that he would have gotten a gun and started a gunfight if he had
known police were at the door. Hinson argued that he had not waived
his Miranda rights before giving the statement. The district court
denied the motion. The jury convicted Hinson on all counts and Card-
well on the solicitation and conspiracy counts. The district court sen-
tenced Hinson to 293 months imprisonment and Cardwell to 131
months imprisonment.
Hinson and Cardwell now appeal. Hinson argues that the district
court erred in denying his motions to sever and to suppress, Cardwell
argues that the evidence was insufficient to sustain his convictions,
and both men argue that their sentences violated the Sixth Amend-
ment. We have jurisdiction under 28 U.S.C.A. § 1291 (West 1993)
and 18 U.S.C.A. § 3742 (West 2000), and consider these arguments
in turn.
III. Joinder and Severance (Hinson)
Hinson contends that the district court improperly denied his
motion to sever, arguing that (1) the Government improperly joined
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the gun and murder-for-hire counts in the indictment under Fed. R.
Crim. P. 8(a) and, (2) even if joinder was proper, the district court
should have severed the gun count from the murder-for-hire counts
under Fed. R. Crim. P. 14. The Government argues that (1) the gun
and murder counts were properly joined under Rule 8(a) and (2) Hin-
son was not prejudiced by the district court’s failure to sever the
counts. Whether offenses in an indictment are improperly joined
under Rule 8(a) is a question of law reviewed de novo. See United
States v. Mackins, 315 F.3d 399, 412 (4th Cir. 2003). If the joinder
was proper, a district court’s order concerning a motion to sever under
Rule 14 is reviewed for abuse of discretion. See id.; United States v.
Najjar, 300 F.3d 466, 473-75 (4th Cir. 2002); United States v.
Akinkoye, 185 F.3d 192, 197-98 (4th Cir. 1999).
A. Joinder
Rule 8(a) provides that "[t]he indictment . . . may charge a defen-
dant in separate counts with [two] or more offenses if [1] the offenses
charged . . . are of the same or similar character, . . . [2] are based
on the same act or transaction, or [3] are connected with or constitute
parts of a common scheme or plan." We have interpreted the latter
two prongs of this rule flexibly, requiring that the joined offenses
have a "logical relationship" to one another. United States v. Hirsch-
feld, 964 F.2d 318, 323 (4th Cir. 1992). Such a relationship exists
when consideration of discrete counts against the defendant paints an
incomplete picture of the defendant’s criminal enterprise. See 1A
Charles Alan Wright, Federal Practice and Procedure § 143 (3d ed.
1999) (noting that joinder is permitted where "the events pertaining
to each [crime are] inextricably tied to the others").
Rule 8(a) "permit[s] very broad joinder" because of the efficiency
in trying the defendant on related counts in the same trial. Mackins,
315 F.3d at 412 (quoting 1A Charles Alan Wright, Federal Practice
and Procedure § 141 (3d ed. 1999)); see also United States v. Stokes,
211 F.3d 1039, 1042 (7th Cir. 2000) ("[C]ourts . . . have a strong
interest in favor of joinder of offenses; in particular, joinder of
offenses reduces the waste of precious judicial and prosecutorial time
in the already overburdened federal judicial system and reduces the
burdens on witnesses from testifying at multiple trials."). Rule 8(a) is
"not infinitely elastic," however, because unrelated charges create the
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possibility that a defendant will be convicted based on considerations
other than the facts of the charged offense. Mackins, 315 F.3d at 412
(internal quotation marks omitted); see also Bruton v. United States,
391 U.S. 123, 131 n.6 (1968) ("An important element of a fair trial
is that a jury consider only relevant and competent evidence bearing
on the issue of guilt or innocence."). When the Government does not
proffer evidence tending to show a relationship between the charged
crimes at a pre-trial hearing on a motion to sever, as it did not here,
we examine compliance with Rule 8(a) by looking to the allegations
in the indictment and the evidence produced at trial. See Mackins, 315
F.3d at 413; see also United States v. Chramek, 331 F.2d 380, 382
(4th Cir. 1964) (same under Fed. R. Crim. P. 8(b)).1
Hinson argues that his gun possession and participation in the
murder-for-hire scheme were separate and distinct from one another
and thus had no logical relationship under Rule 8(a). The Government
argues that the gun and murder-for-hire counts were logically related
because "the firearm count was based on the seizure of the [gun] dur-
1Because the Government did not make a pre-trial proffer of evidence,
we need not decide whether the district court may consider such proffers
in ruling on a motion to sever. Compare United States v. Dominguez, 226
F.3d 1235, 1240-42 (11th Cir. 2000) (observing that the district court
may consider governmental proffers showing propriety of joinder in rul-
ing on a motion to sever); United States v. Halliman, 923 F.2d 873, 883
(D.C. Cir. 1991) (Thomas, J.) (holding same) with United States v.
Chavis, 296 F.3d 450, 456-57 (6th Cir. 2002) (collecting cases from the
Sixth, Seventh, and Ninth Circuits holding that compliance with Rule 8
is assessed by examining the allegations in the indictment alone); United
States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998) (holding same);
United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir. 1988) (holding
same).
We note that our case law holding that compliance with Rule 8(a) is
determined by examining the indictment and evidence presented at trial
is in tension with the cases from other circuits holding that compliance
with Rule 8 is determined by examining the indictment alone. Our rule
has the benefit of a built-in type of harmlessness review; if the indict-
ment does not allege a sufficient relationship for Rule 8(a) purposes, but
the evidence at trial reveals that such a relationship exists, it is difficult
to see how the defendant could ever be prejudiced by the technical mis-
joinder.
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ing the investigation of the murder-for-hire-scheme." Appellee’s Br.
at 20.
We do not agree with the Government’s argument. While discov-
ery of the gun during the murder-for-hire investigation shows a tem-
poral relationship between Hinson’s gun possession and the murder-
for-hire plot — i.e., that they occurred at the same time — we do not
believe that a mere temporal relationship is sufficient to show that the
two crimes at issue here were logically related. See, e.g., Mackins,
315 F.3d at 413 (holding joinder of co-incidental counterfeit check
and money laundering conspiracies improper where there was no log-
ical relationship between the two); United States v. Singh, 261 F.3d
530, 532-33 (5th Cir. 2001) (finding joinder of gun charge with
charge for harboring aliens improper despite the fact law-enforcement
officers discovered the gun while investigating the defendant for har-
boring aliens). A contrary holding would effectively read Rule 8(a)
to allow limitless joinder whenever the charge resulted from the fruits
of a single investigation.
In support of its argument, the Government cites, inter alia, United
States v. Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000) and United
States v. Bullock, 71 F.3d 171 (5th Cir. 1995). These cases, however,
do not help the Government. In Stokes, the Seventh Circuit held that
joinder of gun and drug counts was proper where the defendant was
arrested in possession of a gun while attempting to purchase drugs.
Id. at 1042. The court noted that "where firearms have been discov-
ered along with evidence of a defendant’s drug trafficking, joinder of
firearms and weapons charges has been approved due to the natural
inferences that may be drawn from the contemporaneous possession
of guns and drugs." Id. at 1042. Even assuming Stokes is an accurate
statement of law with respect to gun and drug counts, we see no simi-
lar inference categorically creating a logical relationship between gun
and murder-for-hire counts when evidence of gun possession is dis-
covered during a murder-for-hire investigation. While our conclusion
might well be different if Hinson were the hired murderer — because
of the natural inference that a murderer will use a gun to accomplish
his deed — we see no similar inference linking gun possession to the
one hiring the murderer. In fact, the more logical inference is that the
hirer will not need a gun, because the murderer, not the hirer, will do
the killing.
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Similarly, in Bullock, the Fifth Circuit held that joinder of gun and
bank robbery charges was proper where the defendant was appre-
hended on suspicion of the bank robbery approximately 45 minutes
after the robbery and law enforcement officers found a gun in his car.
Id. at 174. As the Government correctly notes, just as the Agents
found Hinson’s gun while investigating him for murder-for-hire, law
enforcement officers discovered Bullock’s gun while investigating
him for bank robbery. But the court in Bullock did not allow joinder
simply because of this fact. Rather, it held joinder was proper because
"a factfinder could infer that Bullock had the gun so that it would be
available to him during the robbery and escape." Id. at 175.
Despite the fact that the Agents’ discovery of the gun during their
murder-for-hire investigation is not alone sufficient to establish a log-
ical relationship between the gun and murder-for-hire counts, we nev-
ertheless believe that joinder of the counts was proper here because
additional facts demonstrate that the crimes were logically related to
one another. When Hinson was apprehended a few hours after giving
Cole partial payment for the Browns’ murders, the Agents informed
him that he was being arrested because of his participation in the
murder-for-hire collusion. Hinson’s statement to the Agents that he
would have started a gunfight had he known they were coming to
arrest him shows that he was willing to use the gun to keep him from
going to prison because of his participation in the murder-for-hire
plan. These facts make Hinson’s case like Bullock: just as joinder of
the gun and robbery counts was proper because "a factfinder could
infer that Bullock had the gun so that it would be available to him
during the robbery and escape," id., joinder of the gun and murder-
for-hire counts was proper here because a factfinder could infer from
Hinson’s statements that he had the gun so that it would be available
to him in the event the authorities came to arrest him on murder-for-
hire charges. In other words, Hinson’s expressed willingness to use
the gun to protect himself from suffering the repercussions of his par-
ticipation in the murder-for-hire scheme supplies a logical connection
between the two counts. We therefore conclude that the gun and
murder-for-hire charges were properly joined as part of the "same
transaction" under Rule 8(a).2
2The Government argues that the gun and murder-for-hire counts were
also properly joined under the "parts of a common scheme or plan" prong
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B. Severance
Hinson next argues that even if properly joined under Rule 8(a), the
district court erred in failing to sever the gun count from the murder-
for-hire counts under Rule 14(a) because the jury learned of his status
as a felon through the gun charge and was therefore predisposed to
convict him on the murder-for-hire counts.
Rule 14(a) provides that "[i]f the joinder of offenses . . . for trial
appears to prejudice a defendant . . . , the court may order separate
trials of counts. . . ." This rule contemplates that joinder under Rule
8(a) can be proper and, at the same time, severance can be required.
Such cases, however, will be rare. It is not enough for the defendant
to show that severance offers him "a better chance of acquittal."
United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995) (internal
quotation marks omitted). Rather, the Supreme Court has admonished
that "when defendants properly have been joined under [Rule 8], a
district court should grant a severance under Rule 14 only if there is
a serious risk that a joint trial would . . . prevent the jury from making
a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539.
Similarly, we have stated that reversal under Rule 14 is required only
if the defendant shows that requiring him to defend against the joined
offenses in the same trial resulted in "clear prejudice." United States
v. Acker, 52 F.3d 509, 514 (4th Cir. 1995).
We assume, for purposes of this appeal, that evidence of Hinson’s
prior felony would not have been admissible at a trial on the murder-
for-hire counts. Undoubtedly, this fact creates the specter that Hinson
was prejudiced by the district court’s failure to sever. Cf. Zafiro, 506
U.S. at 539 ("[A] risk [of prejudice] might occur when evidence that
the jury should not consider against a defendant and that would not
be admissible if a defendant were tried alone is admitted against a
codefendant."). In this case, however, we do not believe that the
potentiality of prejudice materialized into actuality. First, the district
of Rule 8(a) because Hinson’s gun possession and participation in the
murder-for-hire plot were each logically related to his drug trafficking.
Because we conclude that Hinson’s gun possession and participation in
the murder-for-hire collusion were part of the "same transaction" under
Rule 8(a), we need not address this argument.
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court instructed the jury that "[a] separate crime or offense is charged
in each count of the indictment. Each charge, and the evidence per-
taining to it, should be considered separately." (J.A. at 697.) We have
held that a similar charge sufficiently neutralized the possibility that
the jury would hold a defendant’s felony status against him when con-
sidering his guilt on other charges. Mackins, 315 F.3d at 415. See also
Zafiro, 506 U.S. at 539-40 ("When the risk of prejudice [from joint
trials] is high, a district court is more likely to determine that separate
trials are necessary, but . . . less drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice."); Bul-
lock, 71 F.3d at 175 ("[The defendant] cannot show that he was preju-
diced by the failure to sever the counts, as the court admonished the
jury that it could consider [his] prior felony conviction only in con-
nection with the firearm count.").
Second, Hinson stipulated to the existence of the prior felony.
Keeping the facts about the felony (if not the fact of the felony) from
the jury tends to diffuse any passions that would be aroused by spe-
cific evidence of the defendant’s felonious past. See United States v.
Moore, 104 F.3d 377, 382 (D.C. Cir. 1997) ("There are several safe-
guards short of severance that a district court may employ to avoid
undue prejudice, including a stipulation as to the existence of the prior
felony conviction. . . ." (internal quotation marks omitted)); United
States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995) (holding that "the
risk of prejudice [due to the district court’s failure to sever] was miti-
gated because the prior felony conviction was introduced by stipula-
tion"). Under these circumstances, we conclude that the district court
did not abuse its discretion in refusing to sever the counts against Hin-
son.
IV. Miranda (Hinson)
Hinson next argues that the district court erred in admitting into
evidence his statement to the Agents about the gun found at his house.
We review de novo the district court’s legal conclusions on a motion
to suppress. See United States v. Guay, 108 F.3d 545, 549 (4th Cir.
1997). While we review for clear error the district court’s factual find-
ings, id., the district court here made no factual findings. It is, of
course, the better practice for the district court to make such findings,
but where the district court fails to do so, we assume the district court
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construed the evidence in the light most favorable to the party who
prevails on the suppression motion below. See United States v. Frank-
lin, 323 F.3d 1298, 1300 (11th Cir. 2003); United States v. Smith, 543
F.2d 1141, 1145 & n.11 (5th Cir. 1976). On review, we do the same.
Franklin, 323 F.2d at 1300 (11th Cir. 2003).
Statements obtained from the defendant during custodial interroga-
tion are presumptively compelled in violation of the Fifth Amend-
ment’s Self-Incrimination Clause and are therefore inadmissible in the
Government’s case-in-chief. Miranda v. Arizona, 384 U.S. 436, 457-
58 (1966); Berkemer v. McCarty, 468 U.S. 420, 429 (1984) (collect-
ing cases). The Government can overcome this presumption of coer-
cion by showing that law enforcement officers (1) adequately
informed the defendant of his Miranda rights3 and (2) obtained a
waiver of those rights. Miranda, 384 U.S. at. 444. The Government
does not dispute that Hinson was interrogated while in custody, and
Hinson does not dispute that he was adequately informed of his
Miranda rights. We therefore turn our attention to waiver.
A defendant may waive his Miranda rights only if he does so
"knowingly and voluntarily." North Carolina v. Butler, 441 U.S. 369,
373 (1979). Waiver need not be express, but may be implied from the
defendant’s actions and words. Id. To determine whether a defendant
has waived his Miranda rights, we look to the "totality of the circum-
stances." Moran v. Burbine, 475 U.S. 412, 421 (1986) (internal quota-
tion marks omitted). In assessing knowingness, we ask whether the
defendant had "full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it." Id.
In assessing voluntariness, we ask whether the defendant’s statement
was "the product of a free and deliberate choice [or the result of]
intimidation, coercion, or deception." Id.
Hinson argues that he did not voluntarily waive his Miranda rights.
We are not persuaded. The Agents informed Hinson of his Miranda
rights, and Hinson indicated that he understood them. He did not,
3The defendant must be informed of the following: he has the right to
remain silent; anything he says can be used against him; he has the right
to an attorney; if he cannot afford an attorney, one will be appointed to
him. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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however, invoke those rights at any time. While law enforcement offi-
cers must immediately stop custodial interrogation when the defen-
dant asserts his Miranda rights, see Edwards v. Arizona, 451 U.S. 477
(1981), they are free to engage in custodial interrogation when they
have given Miranda warnings and the defendant does not specifically
invoke those rights. See Davis v. United States, 512 U.S. 452, 460
(1994) (holding that law-enforcement officers who have given
Miranda warnings may continue to question a defendant even when
his request for counsel is equivocal, a holding that also necessarily
applies when the defendant makes no request for counsel at all); Bur-
ket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) ("[T]o invoke the
right to counsel and prevent further interrogation, a suspect must
unambiguously request the assistance of counsel."). Hinson’s failure
to invoke his rights therefore left Agent High free to interrogate him.
If Hinson had wished to exercise his right to remain silent in response
to Agent High’s question, nothing prevented him from doing so.4
Because Hinson had been fully informed and indicated his under-
standing of his Miranda rights, his willingness to answer Agent
High’s question is as clear an indicia of his implied waiver of his right
to remain silent as we can imagine. See United States v. Frankson, 83
F.3d 79, 82 (4th Cir. 1996) ("[A] defendant’s . . . willingness to
answer questions after acknowledging his Miranda rights is sufficient
to constitute an implied waiver." (internal quotation marks omitted)).
We therefore hold that the district court did not err in admitting into
evidence Hinson’s statement about his access to the gun and his will-
ingness to use it.
V. Sufficiency of the Evidence (Cardwell)
Cardwell argues that the evidence against him was insufficient to
sustain his convictions. We must uphold a jury verdict if there is sub-
stantial evidence, viewed in the light most favorable to the Govern-
4Although Hinson’s brief is not entirely clear, it can be read to argue
that because he was handcuffed for over two hours in the police car his
will was overborne by oppressive custodial conditions. While we do not
doubt that oppressive custodial conditions can vitiate the voluntariness of
a confession, we also have no doubt that sitting in the front seat of a
patrol car with one’s hands handcuffed in front of him for two hours does
not amount to oppressive custodial conditions.
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ment, to support it. See Glasser v. United States, 315 U.S. 60, 80
(1942). Substantial evidence is that evidence which a "reasonable
finder of fact could accept as adequate and sufficient to support a con-
clusion of a defendant’s guilt beyond a reasonable doubt." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
Cardwell was convicted of conspiracy and solicitation to commit
murder in violation of §§ 371 and 373, respectively. To establish a
conspiracy under § 371, the Government must prove "(1) an agree-
ment between two or more people to commit a crime, and (2) an overt
act in furtherance of the conspiracy." United States v. Ellis, 121 F.3d
908, 922 (4th Cir. 1997). "The existence of a tacit or mutual under-
standing between conspirators is sufficient evidence of a conspirato-
rial agreement." Id. (internal quotation marks omitted). Proof of the
agreement may be established by circumstantial evidence. Burgos, 94
F.3d at 857. It is no defense to a conspiracy charge that one’s role in
the conspiracy is minor. See United States v. Laughman, 618 F.2d
1067, 1076 (4th Cir. 1980) ("Once the existence of a conspiracy is
established, evidence establishing beyond a reasonable doubt a con-
nection of a defendant with the conspiracy, even though the connec-
tion is slight, is sufficient to convict him with knowing participation
in the conspiracy." (internal quotation marks omitted)).
To establish solicitation under § 373, the Government must demon-
strate that the defendant (1) had the intent for another to commit a
crime of violence and (2) solicited, commanded, induced or otherwise
endeavored to persuade such other person to commit the crime of vio-
lence under circumstances that strongly corroborate evidence of that
intent. United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir. 1994).
Payment or promises to remunerate the perpetrator of the underlying
crime can be strong corroborative evidence of intent. See United
States v. Gabriel, 810 F.2d 627, 635 (7th Cir. 1987).
We conclude that the evidence was sufficient to support Cardwell’s
convictions. Cole testified that he and Cardwell discussed the plan to
murder the Browns numerous times over the few months following
the meeting at the Danville restaurant. During these conversations,
Cardwell assured Cole that Hinson was serious about killing the
Browns. Because Hinson was under intense investigation, Cardwell
agreed to be the middleman between Hinson and Cole, and agreed to
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deliver the payment for the murder. This evidence is sufficient to
show that Cardwell participated in the agreement to kill the Browns.
See United States v. Chaverra-Cardona, 879 F.2d 1551, 1555 (7th
Cir. 1989) (concluding that evidence that the defendant served as a
conduit between drug-trafficking ringleader and hitman supported the
defendant’s conspiracy conviction). In addition, Cardwell’s assur-
ances that Hinson was serious and Cardwell’s statement that he would
serve as the middleman between Hinson and Cole is sufficient to
show that Cardwell, at the very least, participated in Hinson’s solicita-
tion of Cole.
Cardwell maintains, however, that his convictions were improper
because (1) he personally did not take an overt act in furtherance of
the conspiracy and (2) he was so unhelpful that Cole eventually ended
up dealing with Hinson himself. These arguments are without merit.
First, each co-conspirator need not take an overt act in order to be
convicted of conspiracy so long as one conspirator does so. United
States v. Caudle, 758 F.2d 994, 997-998 (4th Cir. 1985) (affirming
sufficiency challenge to each defendant’s conspiracy conviction
where only one defendant participated in an overt act); Tabor v.
United States, 152 F.2d 254, 258 (4th Cir. 1945) (conspiracy requires
agreement and overt act committed by "one or more of the conspira-
tors"). Second, Cardwell’s unhelpfulness does not amount to a with-
drawal from the conspiracy, which requires the defendant to take
affirmative actions inconsistent with the object of the conspiracy and
communicate his intent to withdraw in a manner likely to reach his
accomplices. See United States v. Walker, 796 F.2d 43, 49 (4th Cir.
1986). Moreover, because the crime of solicitation is complete when
the defendant attempts to persuade another to commit a crime, it is of
no moment that Cardwell’s assurances did not actually persuade Cole
to go through with the Browns’ murders. See, e.g., Initiative & Refer-
endum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1314 (D.C. Cir.
2005) ("In criminal law, solicitation is regarded as a freestanding
offense: requesting the unlawful act is itself a crime, regardless of
whether the request is consummated." (internal quotation marks omit-
ted)). We therefore conclude that the evidence was sufficient to con-
vict Cardwell.
VI. Sentencing Issues (Hinson and Cardwell)
Hinson and Cardwell each argue that their sentences violate the
Sixth Amendment because the district court mandatorily applied
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judge-found enhancements in the United States Sentencing Guide-
lines to enhance their sentences above those authorized by the jury
verdict alone. See Booker, 125 S.Ct. at 750-51 (holding that judge-
found sentence enhancements mandatorily imposed under the Guide-
lines that result in a sentence greater than that authorized by the jury
verdict or facts admitted by the defendant violate the Sixth Amend-
ment’s guarantee of the right to trial by jury); United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Because they did not
make this argument to the district court, we review for plain error. See
Hughes, 401 F.3d at 547.
Under plain error review, the defendant must show that (1) the dis-
trict court committed error, (2) the error was plain, and (3) the error
affected his substantial rights. Id. at 547-55. If the defendant shows
that his mandatorily-imposed Guidelines sentence was greater than
that authorized by facts admitted by the defendant or the jury verdict
alone, he demonstrates a Sixth Amendment error that satisfies these
requirements. Id. If the defendant makes this three-part showing, cor-
rection of the error nevertheless remains within our discretion, which
we should not exercise unless "the error seriously affects the fairness,
integrity or public reputation of judicial proceedings." Id. at 555.
We conclude that the district court plainly erred.5 Hinson’s base
offense level for the murder-for-hire convictions was 28 and for the
gun conviction was 24. The district court applied a four-level
enhancement on the murder-for-hire convictions based on its finding
that the conspiracy and solicitation offenses involved "the offer or the
receipt of anything of pecuniary value for undertaking the murder."
U.S. Sentencing Guidelines Manual § 2A1.5 (2004). With the
enhancement, Hinson’s adjusted offense level on the two sets of
counts was 33. See U.S.S.G. § 3D1.4. Based on a criminal history cat-
egory of VI, Hinson’s guideline range was 235-293 months. The dis-
trict court sentenced Hinson to 293 months imprisonment. Without
the judge-found enhancement, the combined offense level for the
murder-for-hire and gun convictions would have been 30. See
5As we noted in United States v. Hughes, 401 F.3d 540 (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 [Hinson’s and Cardwell’s] sen-
tencing." Id. at 545 n.4.
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U.S.S.G. § 3D1.4. Hinson, however, was a career offender, a fact that
would have brought his offense level, again without the four-level
enhancement, to 32. See U.S.S.G. § 4B1.1. With a criminal history
category of VI, this offense level would have brought Hinson’s sen-
tencing range to 210-262.6 Hinson’s 293-month sentence therefore
violated the Sixth Amendment.
Cardwell’s base offense level was 28 with a criminal history cate-
gory of I. This level and category corresponded to a sentencing range
of 78-97 months imprisonment. Cardwell, like Hinson, received a
four-level enhancement based on judge-found facts under U.S.S.G.
§ 2A1.5. With this enhancement, his range was 121-151 months
imprisonment. The district court sentenced Cardwell to 131 months,
and, as with Hinson, thereby committed Sixth Amendment error.
Hinson and Cardwell therefore both satisfy the first three require-
ments of plain error review. Moreover, we conclude that failing to
notice the error — which would result in Hinson and Cardwell serv-
ing sentences that were unconstitutional — would "seriously affect[ ]
the fairness, integrity or public reputation of judicial proceedings."
United States v. Gray, 405 F.3d 227, 243 (4th Cir. 2005), cert. denied
126 S.Ct. 275 (2005) (vacating and remanding sentence that violated
Booker without discussing the magnitude — in terms of additional
months — of the district court’s sentencing error).7 We therefore
6Although we consider Hinson’s career-offender guideline range under
U.S.S.G. § 4B1.1 as the baseline for determining whether the district
court committed Sixth Amendment error, we do not hold that all sen-
tences under that section are free of Sixth Amendment error. See United
States v. Collins, 412 F.3d 515, 522-23 (4th Cir. 2005) (declining to
answer whether the defendant’s sentence based on his status as a career
offender violated the Sixth Amendment because he conceded the facts
giving rise to such designation). Because Hinson did not argue that a sen-
tence imposed under U.S.S.G. § 4B1.1 would have violated the Sixth
Amendment, we need not decide the question here.
7In its opening brief, the Government argued that because the evidence
supporting Hinson’s and Cardwell’s enhancements under U.S.S.G.
§ 2A1.5 was "overwhelming" and "essentially uncontroverted," we
should decline to notice the Sixth Amendment error at sentencing. Cf.
United States v. Cotton, 535 U.S. 625, 633-34 (2002) (declining to notice
plain error when indictment failed to allege facts that increased the
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vacate Hinson’s and Cardwell’s sentences and remand for resentenc-
ing. In determining Hinson’s and Cardwell’s sentences on remand,
the district court should first determine the appropriate sen-
tencing range under the Guidelines, making all factual find-
ings appropriate for that determination. 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), and
then impose a sentence. Id. If that 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). Hughes,
401 F.3d at 546. The sentence must be "within the statu-
torily prescribed range and . . . reasonable." Id. at 547.
Gray, 405 F.3d at 244 n.10.
Conclusion
For the foregoing reasons, we affirm Hinson’s and Cardwell’s con-
victions and vacate their sentences and remand for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
defendant’s statutory maximum sentence where the evidence of that fact
was "overwhelming" and "essentially uncontroverted"); Johnson v.
United States, 520 U.S. 461, 466-67 (1997)(same result when the defen-
dant was denied the right to a jury trial on one element of his perjury
conviction). Despite the strength of this argument, both in the abstract
and on the facts of this case, but see United States v. Oliver, 397 F.3d
369, 380 n.3 (6th Cir. 2005) (holding that Cotton-type analysis does not
apply to Booker errors because such errors can easily be remedied by
resentencing without producing a windfall to the defendant), and despite
the fact we have already held that a Cotton-type analysis applies to a
post-Booker Fifth Amendment claim, see United States v. Harp, 406
F.3d 242, 247 (4th Cir. 2005), cert. denied 126 S.Ct. 297 (2005) (declin-
ing to remand under plain-error review where indictment failed to allege
facts used to enhance a defendant’s sentence under the Sentencing
Guidelines because the evidence in favor of the enhancement was "over-
whelming" and "essentially uncontroverted" (quoting Cotton, 535 U.S. at
633)), the Government expressly abandoned this position at oral argu-
ment and in supplemental briefing. Accordingly, we will not consider
whether Hinson’s and Cardwell’s sentences should be remanded under
Cotton and Johnson.
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