UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4452

RAYMOND J. STEWART,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CR-96-123-1)

Submitted: March 2, 1999

Decided: April 12, 1999

Before HAMILTON, NIEMEYER, and WILLIAMS,

Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

John Robert McGhee, Jr., KAY, CASTO, CHANEY, LOVE &

WISE, Charleston, West Virginia, for Appellant. Rebecca A. Betts,

United States Attorney, Miller A. Bushong III, Assistant United

States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Raymond J. Stewart appeals from his conviction and sentence

imposed for conspiring to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 (1994). On

appeal, he contends that the district court erred by (1) denying his

motion to strike two jurors for cause; (2) allowing into evidence testimony concerning drug dealings which preceded the date of the conspiracy as charged in the indictment; (3) allowing into evidence

statements of a coconspirator; (4) denying his motion for judgment of

acquittal; (5) calculating the base offense level under the Sentencing

Guidelines; and (6) allowing the testimony of a government witness

who, in his plea agreement, had been offered immunity in exchange

for his testimony. Stewart, acting pro se, has filed a number of

motions. We deny his motions to relieve counsel, to strike the appeal

brief filed by counsel, and to proceed pro se. We deny counsel's

motion to withdraw, and we grant Stewart's motion for leave to file

a pro se supplemental brief. In his pro se supplemental brief, Stewart

argues that the district court erred in denying his motion for judgment

of acquittal where all of the evidence against him was introduced

from witnesses who received something of value in exchange for their

testimony. Stewart also raises the additional issue that it was plain

error for the district court to sentence him using the 1997 edition of

the U.S. Sentencing Guidelines Manual. Upon review of the issues

raised by counsel and by Stewart, we affirm Stewart's conviction, but

vacate his sentence and remand for resentencing using the 1994 version of the Sentencing Guidelines.

I.

The federal grand jury returned an indictment charging Stewart

with one count of knowingly conspiring to distribute and to possess

with intent to distribute methamphetamine. The indictment alleged

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that the conspiracy occurred from approximately March 1994 to September 1995.

Stewart met Robert Jarvis in late 1992. Around that time, or in

early 1993, Jarvis received a gram of methamphetamine through the

mail from Richard Roll in California. Jarvis kept half a gram and sold

the other half to Stewart for $50. Throughout 1993, Jarvis continued

to receive methamphetamine, totaling about two pounds, from Roll.

Jarvis fronted to Stewart approximately one and one-half pounds of

the methamphetamine he received from Roll.

In January 1994, Jarvis began to obtain methamphetamine in the

mail from Anthony Compton. The total amount he received from

Compton was about twenty pounds. Jarvis gave Stewart approximately two pounds of the methamphetamine he received from Compton.

Officials learned of Robert Jarvis' activities through the use of a

confidential informant. They further learned that Raymond Stewart

was one of the local dealers who purchased methamphetamine from

Jarvis for redistribution. Stewart redistributed the methamphetamine

from Jarvis to Jack Clark, Steve Mullins, Timothy Sigman, and Lisa

Jarrett.

Following the presentation of evidence of this activity, the jury

found Stewart guilty of the conspiracy charge. The district court subsequently sentenced Stewart to 188 months, followed by a five-year

term of supervised release. Stewart timely noted his appeal.

II.

Stewart first challenges the district court's decision to deny his

motion to strike two jurors for cause. We review such a decision for

an abuse of discretion, affording the district court wide latitude. See

Person v. Miller, 854 F.2d 656, 665 (4th Cir. 1988). Where the issue

concerns the bias of a juror, special deference is given to the district

court's determination of the credibility of the juror's statement as to

whether he can be impartial. See Patton v. Yount , 467 U.S. 1025,

1038 (1984).

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During voir dire, the district court judge asked the members of the

jury panel whether they or any member of their immediate families

were employed as a law enforcement officer. One juror, Nancy

Plantz, responded that she worked for the West Virginia State Police

in a data processing and communications position for twenty years

and her ex-husband was a West Virginia State Trooper. Plantz stated

that she could be fair and impartial notwithstanding her association

with the state police. Another juror, Rhonda Dingess, reported that

her husband had been a police officer for the City of Chapmanville,

West Virginia, for six years. Dingess also stated that she could be fair

and impartial notwithstanding her husband's occupation.

Stewart's counsel requested additional voir dire of these two jurors

concerning whether they would be biased in favor of law enforcement

witnesses, but none was made. Counsel then moved to strike Dingess

and Plantz for cause. The district court denied this motion. Stewart's

counsel then exercised two preemptory strikes to remove these two

jurors from the panel. The district court apparently determined that

Dingess and Plantz were credible in their statements that despite their

association with law enforcement agencies, they could be fair and

impartial. We find no abuse of discretion by the district court in denying Stewart's motion to strike for cause. See United States v.

LaRouche, 896 F.2d 815, 830 (4th Cir. 1990) (no per se exclusion for

potential jurors with law enforcement associations). Moreover, the

district court's failure to conduct additional voir dire as to bias in

favor of law enforcement witnesses was harmless. The government

presented no law enforcement witnesses on the issue of Stewart's

involvement in the conspiracy. The only law enforcement witness was

the case agent, whose testimony concerned Stewart's flight and failure to appear for the scheduled trial.

III.

Stewart also challenges the admission of testimony concerning

drug dealings which preceded the date of the conspiracy charged in

the indictment. The district court is afforded broad discretion in determining whether to admit evidence. Such a decision will not be

reversed unless it was the result of an abuse of this discretion. See

United States v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997).

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Three days before the start of the trial, the government filed a "Notice of Federal Rule of Criminal Procedure 404(b) Evidence" informing Stewart's counsel that the government intended to introduce

evidence that Stewart began dealing methamphetamine before the

March 1994 date charged in the indictment as the beginning of the

conspiracy. Although Stewart argued that the notice was untimely and

that the evidence was cumulative, irrelevant, and that the probative

value was outweighed by the prejudicial effect to Stewart, the district

court allowed the evidence. We find no abuse of discretion in this

decision. As the government argued, such evidence was not technically of a "prior bad act" but rather furnished part of the context of

the crime. See United States v. Smith, 446 F.2d 200, 204 (4th Cir.

1971). Also, the government asserted that the evidence was so intrinsic to the charged offense that it was not admitted to establish bad

character. See United States v. Chin, 83 F.3d 83, 87-88 (4th Cir.

1996); see also United States v. Kennedy, 32 F.3d 876, 886 (4th Cir.

1994) (evidence of criminal conduct occurring months before charged

conspiracy admissible without recourse to Rule 404(b)).

IV.

Stewart next argues that the district court erred in admitting Lisa

Jarrett's testimony about statements made by Linda Adkins. Stewart

contends that this constituted inadmissible hearsay. The factual findings as to whether statements are admissible as a co-conspirator's

statements under Fed. R. Evid. 801(d)(2)(E), are reviewed for clear

error, and the admission of such statements are reviewed for abuse of

discretion. See United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir.

1992).

During its case-in-chief, the government called as a witness, Lisa

Jarrett, who was originally a named co-defendant in the indictment

against Stewart. Jarrett testified concerning her knowledge of Stewart's involvement in the conspiracy. Jarrett testified that she learned

that Stewart was involved with methamphetamine from Linda

Adkins, who informed Jarrett that she was getting her methamphetamine from Stewart. Over Stewart's hearsay objection, the district

court allowed this testimony. The court found that Adkins was a coconspirator with Stewart during the relevant time period. Therefore,

Adkins' statements made in the course of and in furtherance of the

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conspiracy were not hearsay. This factual determination is not clearly

erroneous, and the district court did not abuse its discretion in allowing this evidence. See Blevins, 960 F.2d at 1255.

V.

Stewart's next argument is that the district court erred in denying

his motion for judgment of acquittal, in which he asserted that the evidence showed multiple conspiracies, rather than one conspiracy as

alleged in the indictment. When reviewing the denial of a motion for

acquittal, this court must determine whether, viewing the evidence in

the light most favorable to the government, there is substantial evidence to support a finding of guilt beyond a reasonable doubt. See

United States v. Stockton, 788 F.2d 210, 218 (4th Cir. 1986); United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

While, as Stewart contends, the evidence could support a finding

of more than one conspiracy, the evidence also supported a finding

of a single conspiracy. Viewing the evidence in the light most favorable to the government, see Tresvant, 677 F.2d at 1021, the district

court properly found that the evidence was sufficient to support a

finding of guilt on the single conspiracy charged in the indictment.

We find no error in this ruling.

VI.

At sentencing, Stewart objected to the sufficiency and the credibility of the evidence used to determine the amount of methamphetamine attributable to him in the presentence report. Stewart also

requested that the court use a calculation of weight based on the

purity of the methamphetamine rather than the total weight of any

mixture. The district court overruled these objections and attributed

3.5 pounds or 1.5876 kilograms of methamphetamine to Stewart for

sentencing purposes, resulting in a base offense level of 34. Stewart

now argues that the district court erred in overruling his objections.

Jarvis testified that a conservative estimate of the amount of

methamphetamine he supplied to Stewart was 3.5 pounds. The district

court, at sentencing, found this testimony credible. While Stewart

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asserted that the amount should be less than that, he failed to state or

show what lesser amount should be attributed to him. Further, Stewart's contention that the purity of the methamphetamine should have

been used to calculate the amount of methamphetamine was properly

dismissed because the sentencing guidelines provide that the greater

of the two weights should be used. See USSG§ 2D1.1(c)(3), and note

(B) to the Drug Quantity Table. Finding no clear error in the district

court's findings as to the amount of methamphetamine attributed to

Stewart, see United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.

1994), we affirm Stewart's sentence.

VII.

During its case-in-chief, the government presented testimony from

witnesses who had entered into plea agreements with the United

States. Stewart did not object to these witnesses' testimony. Stewart,

relying on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998),

now contends that the government offered inducements--the immunity agreements--to these witnesses in exchange for their testimony

in violation of 18 U.S.C. § 201(c)(2) (1994). In Singleton, the Tenth

Circuit held that any promise made by the government to a witness

in exchange for truthful testimony violates § 201(c)(2), and such testimony should be suppressed. 114 F.3d at 1359. Rehearing the case en

banc, the Tenth Circuit rejected its initial decision in Singleton. See

United States v. Singleton, ___ F.3d ___, 1999 WL 6469 (10th Cir.

Jan. 8, 1999) (en banc). Because this court has not addressed whether

plea agreements with the United States can violate 18 U.S.C.

§ 201(c)(2), there is no clear violation of existing law as required for

reversal under the plain error standard of review. See United States

v. Olano, 507 U.S. 725, 732-36 (1993).

VIII.

In his pro se brief, Stewart also raises a claim under Singleton,

arguing that the district court erred in denying his motion for judgment of acquittal where all of the evidence against him was introduced from witnesses who received something of value in exchange

for their testimony. Because this court has not addressed this issue,

we find no plain error by the district court in failing to apply the rationale of Singleton. See Olano, 507 U.S. at 732-36.

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IX.

Stewart's final argument, also raised in his pro se brief, is that the

district court committed plain error by sentencing him using the 1997

edition of the U.S. Sentencing Guidelines Manual . Stewart's failure

to object during sentencing amounts to a waiver of his right to raise

this issue on appeal absent plain error. See Fed. R. Crim. P. 52;

United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996). To

reverse for plain error, this court must "(1) identify an error; (2) which

is plain; (3) which affects substantial rights; and (4) which `seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.'" United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993)

(quoting United States v. Olano, 507 U.S. at 732-36).

The sentencing court should apply the guidelines which are in

effect on the date of sentencing. See USSG§ 1B1.11(a); United States

v. Hartzog, 983 F.2d 604, 608 (4th Cir. 1993). However, if use of the

Guidelines Manual in effect on the date of sentencing would violate

the Ex Post Facto Clause, the Manual in effect on the date of the commission of the offense should be used. See USSG § 1B1.11(b)(1). The

ex post facto clause prohibits a law that aggravates the crime or

inflicts a greater punishment than the law annexed to the crime, when

committed. See Miller v. Florida, 482 U.S. 423, 431-32 (1987) (ex

post facto clause precludes use at sentencing of more punitive Florida

sentencing guideline amendment that took effect after date of

offense); United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir.

1990) (ex post facto clause prevented application of amended § 1B1.3

to defendant whose offense occurred prior to the effective date of the

amendment which increased punishment).

Effective November 1, 1997, section 2D1.1 of the guidelines was

amended to increase penalties for methamphetamine trafficking

offenses. The increase was accomplished by reducing by half the

quantity of methamphetamine which corresponded to each offense

level in the Drug Quantity Table. This change resulted in the 1.5876

kilograms of methamphetamine attributable to Stewart falling within

offense level 34, where prior to the amendment, this quantity resulted

in offense level 32. Compare U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(3) (1997) with U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(4) (1994). This error seriously affects Stewart's substan-

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tial rights because the higher offense level caused Stewart to be sentenced to a longer prison term. Also, sentencing a defendant under the

wrong guideline range affects the fairness, integrity, and public reputation of judicial proceedings. Because Stewart's sentence is

improper, resentencing is necessary. See Olano , 507 U.S. at 732; see

also Ford, 88 F.3d at 1356. Accordingly, we vacate Stewart's sentence and remand for resentencing. On remand, the district court

should apply the 1994 version of the guidelines, including the distinction in the guidelines between d-methamphetamine and lmethamphetamine, which existed prior to the November 1, 1995

amendments.

X.

In conclusion, we affirm Stewart's conviction, but vacate his sentence and remand for resentencing under the version of the guidelines

in effect on the date of the commission of the offense. 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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