United States Fourth Circuit

In a drug related prosecution, judgment is vacated and remanded in part where the court erred in declining a request that it give instructions requiring the jury to make an essential threshold determination of drug quantity and establish the penalty range for each individual conspiracy defendant, which resulted in a defendant receiving a sentence in excess of the maximum established by section 841(b)(1)(c). The judgment is also affirmed in part where: 1) the court is allowed to find individualized drug quantities by a preponderance of the evidence as part of its calculation of an advisory Guidelines range; 2) the court is entitled to consider conduct underlying an acquitted charge during sentencing by a preponderance of the evidence; 3) a prosecution witness is allowed to testify during sentencing to clarify his testimony relating to drug quantities; and 4) the court did not improperly attribute criminal history points to the defendants.

Appellate Information

• Argued 11/02/2007
• Decided 05/08/2008
• Published 05/08/2008

Judges

• Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr., Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Court

• United States Fourth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Jessica Ann Salvini, Salvini & Bennett, L.L.C., Greenville, South Carolina;  John Dewey Elliott, Columbia, South Carolina;  Russell White Templeton, Columbia, South Carolina;  William Michael Duncan, Austin, Lewis & Rogers, P.A., Columbia, South Carolina;  James Perry Craig, Craig Law Firm, P.C., Columbia, South Carolina, for Appellants.   Robert F. Daley, Jr., Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.   ON BRIEF:  Reginald I. Lloyd, United States Attorney, Marshall Prince, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.