UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4632

LEONARD A. BANKS,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 00-4695

LEONARD A. BANKS,

Defendant-Appellee. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-00-42)

Argued: December 3, 2001

Decided: February 28, 2002

Before WIDENER, MICHAEL, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 
COUNSEL

ARGUED: Regina Lynn Carpenter, MCLAUGHLIN & CURRY,

Fairmont, West Virginia, for Appellant. Robert E. Trono, Assistant

United States Attorney, Richmond, Virginia, for Appellee. ON

BRIEF: Gerald G. Ashdown, WEST VIRGINIA UNIVERSITY

COLLEGE OF LAW, Morgantown, West Virginia, for Appellant.

Helen F. Fahey, United States Attorney, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Leonard Banks was convicted of possession with intent to distribute a controlled substance, crack cocaine, in violation of 21 U.S.C.

§ 841(b). Banks appeals his conviction, arguing that the district court

erred by admitting certain rental car records and evidence of prior

drug dealing. The government cross-appeals, arguing that the district

court committed a sentencing error when it relied on Apprendi v. New

Jersey, 530 U.S. 466 (2000), in refusing to consider relevant conduct

in calculating the drug quantity attributable to Banks. For the following reasons, we affirm Banks’s conviction, vacate his sentence, and

remand to the district court for resentencing. 

I.

On the morning of December 17, 1999, police in Farmville, Virginia, arrested Anthony Gilmore for marijuana possession. Gilmore

agreed to assist the police in catching other individuals involved in

drug dealing. Later that morning, using a special telephone line at the

Farmville Police Department, Gilmore paged a man known as

"Tandy" from whom Gilmore had recently bought drugs. Tandy, later

2 UNITED STATES v. BANKS
identified as defendant Banks, called Gilmore at the Farmville Police

Department’s special number, and their conversation was recorded.

Banks agreed to sell Gilmore a quantity of crack cocaine, and the two

arranged to meet later that day at the Farmville Coastal Mart. At

about 1:00 p.m. Banks and Michelle Wilson, a co-defendant, drove

into the Coastal Mart parking lot, where they were arrested by police.

Banks was driving a Buick rented the previous night at Dulles Airport, and he was carrying $850 in cash and a pager containing the

Farmville Police Department phone number. Wilson turned over to

the police about 28 grams of crack cocaine that were hidden on her

person. 

Banks and Wilson were indicted for possession with intent to distribute a controlled substance. Wilson pled guilty, and Banks went to

trial. In his defense at trial Banks emphasized that Wilson had possessed the drugs and argued that he was simply an innocent and ignorant bystander to any drug transaction that was about to take place.

The government introduced testimony by Wilson that she and Banks

had previously rented cars at Dulles Airport and then stopped at a certain apartment to buy crack cocaine. The government also introduced

Banks’s past car rental records. The court admitted all of this evidence over Banks’s objection that it was bad character or propensity

evidence, which was prejudicial and not probative of the current

charges. The jury returned a guilty verdict. 

At sentencing the district court determined the amount of crack

cocaine attributable to Banks in order to arrive at the applicable sentence range. U.S. Sentencing Guidelines Manual §§ 2D1.1(a)(3), (c).

Under the Guidelines a defendant’s sentence range is determined not

only according to the conduct of the offense of conviction, but also

from "relevant conduct" that was "part of the same course of conduct

or common scheme or plan as the offense of conviction." U.S. Sentencing Guidelines Manual § 1B1.3(a)(2). At sentencing the government proffered evidence that in addition to the 28 grams found on

Wilson at the time of arrest, Banks had obtained 28 grams of crack

cocaine on two previous occasions during the fall of 1999. The government argued that these three incidents of possession of 28 grams

were part of the same course of conduct or a common scheme, which

meant that 84 grams of crack cocaine were attributable to Banks.

Acceptance of the government’s position would have resulted in an

UNITED STATES v. BANKS 3
offense level of 32 and a Guidelines range of 135 to 168 months’

imprisonment. The district court, relying on Apprendi v. New Jersey,

530 U.S. 466 (2000), refused to consider the prior conduct and attributed only 28 grams of crack cocaine to Banks. This resulted in an

offense level of 28 and a Guidelines range of 87 to 108 months’

imprisonment. The district court then sentenced Banks to 87 months’

imprisonment. Banks appeals his conviction, and the government

cross-appeals the sentence. 

II.

Banks claims that the district court erred in admitting evidence of

prior car rentals and Wilson’s testimony regarding past drug purchases. Banks argues that this evidence was not relevant to the

charged offense but was impermissible bad character or propensity

evidence. See Fed. R. Evid. 401, 404. We review the district court’s

evidentiary rulings for abuse of discretion. United States v. Sanchez,

118 F.3d 192, 195 (4th Cir. 1997). 

Under Fed. R. Evid. 404(b), "[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order

to show action in conformity therewith." The rule also provides that

such evidence may be "admissible for other purposes, such as proof

of motive . . . knowledge . . . or absence of mistake or accident." To

determine whether evidence is admissible under Rule 404(b), we must

consider whether the evidence is relevant to the charged offense

rather than simply to the general character of the defendant, whether

it is probative and reliable, and whether its probative value is substantially outweighed by its prejudicial impact. United States v. Queen,

132 F.3d 991, 997 (4th Cir. 1997). 

At trial Banks argued that there was no proof that he knew Wilson

possessed the 28 grams of crack cocaine and that he was an innocent

bystander to any drug transaction. In the face of this argument, Wilson’s testimony that she and Banks had previously rented cars at Dulles Airport and then driven to a certain location to buy crack cocaine

was both relevant and probative. Banks’s claim that he was ignorant

of Wilson’s drug possession and the impending drug transaction is

less plausible in light of evidence that Banks and Wilson had previously been involved in similar activity on prior occasions. Cf. United

4 UNITED STATES v. BANKS
States v. Van Metre, 150 F.3d 339, 350-51 (4th Cir. 1998). Records

of prior car rentals by Banks were also relevant to Banks’s knowledge

and intent, as these records served to buttress Wilson’s testimony. 

As to reliability, defense counsel stipulated to the authenticity of

the car rental records. Nor was Wilson’s testimony so unreliable as

to be inadmissible. Defense counsel had the opportunity to crossexamine Wilson, and the jury was able to consider the impact of her

plea agreement on the truthfulness of her testimony. Finally, the prejudicial effect of the evidence of past drug dealing does not substantially outweigh the probative value of that evidence in this particular

case. The evidence of past drug dealing is not cumulative of other evidence, but it is the only evidence that directly undermines Banks’s

contention that he was unaware of Wilson’s possession of the drugs.

Moreover, the past drug dealing described by Wilson is quite similar

to the charged conduct here, which reinforces the probative value of

the contested evidence. See Queen, 132 F.3d at 996. While the contested evidence was prejudicial, it was prejudicial because it was probative. In any case, this evidence was tempered somewhat by the

district court’s instruction to the jury that Banks "is not charged on

anything except what is in the indictment" and that the evidence of

past drug dealing "is just background information." 

In sum, the district court did not abuse its discretion in admitting

Wilson’s testimony of prior drug dealing and evidence of past car

rentals. We therefore affirm Banks’s conviction. 

III.

On cross-appeal the government argues that the district court erred

in refusing to consider evidence of additional drug possession to

determine, for sentencing purposes, the drug quantity attributable to

Banks. Without reaching the question of whether these previous incidents of drug possession were relevant conduct, the district court held

that it could not consider evidence not submitted to the jury and

proven beyond a reasonable doubt. The court relied on Apprendi v.

New Jersey, 530 U.S. 466 (2000), which was decided on June 26,

2000, just prior to Banks’s sentencing on August 28, 2000. 

UNITED STATES v. BANKS 5
Since the district court’s decision, our court has had the occasion

to apply Apprendi. We have explained that under Apprendi "the maximum penalty that may be imposed upon a defendant is the maximum

penalty allowed by statute upon proof of only those facts alleged in

the indictment and found by the jury beyond a reasonable doubt. Once

this maximum penalty is established, a fact (sentencing factor) that

may increase the actual sentence imposed within that maximum is not

subject to the same requirements." United States v. Promise, 255 F.3d

150, 156 n.5 (4th Cir. 2001) (en banc) (emphasis omitted). Because

the indictment in this case did not allege a drug quantity, the maximum penalty allowed by statute was twenty years’ imprisonment. 21

U.S.C. § 841(b)(1)(C). The district court considered only the 28

grams involved in the arrest, and thus arrived at an offense level of

28 and a Guidelines range of 87 to 108 months’ imprisonment. U.S.

Sentencing Guidelines Manual § 2D1.1(c)(6). Had the court also considered and credited the evidence of Banks’s possession of an additional 56 grams of crack cocaine, it would have arrived at an offense

level of 32 and a Guidelines range of 135 to 168 months’ imprisonment. U.S. Sentencing Guidelines Manual § 2D1.1(c)(4). Even

accepting the government’s evidence, the maximum sentence under

the Guidelines would be 14 years (168 months). Because this sentence would not exceed the maximum twenty-year penalty for a conviction under § 841(b)(1)(C) for an unspecified quantity of crack

cocaine, the rule in Apprendi is not implicated. The additional drug

quantity would simply be a "fact (sentencing factor) that may increase

the actual sentence imposed within [the statutory] maximum." Promise, 255 F.3d at 156 n.5. Thus, the district court erred in concluding

that Apprendi prevented the consideration of the additional evidence

in this case. 

Accordingly, we vacate Banks’s sentence and remand to the district

court for resentencing. We note that while Apprendi presents no

obstacle to the district court’s consideration of the government’s evidence of other drug possession, the district court must of course determine whether the government has established the drug amounts by a

preponderance of the evidence and whether such conduct is relevant

to the offense of conviction. See United States v. Cook, 76 F.3d 596,

604-05 (4th Cir. 1996); U.S. Sentencing Guidelines Manual

§ 1B1.3(a)(2). 

6 UNITED STATES v. BANKS
IV.

We affirm Banks’s conviction, but we vacate his sentence and

remand for resentencing in accordance with this opinion. 

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

UNITED STATES v. BANKS 7