UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5671

TIMOTHY ADAMS, a/k/a Rodney

Clark, a/k/a Smitt,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

N. Carlton Tilley, Jr., District Judge.

(CR-94-302)

Argued: October 30, 1996

Decided: December 17, 1996

Before WILLIAMS and MICHAEL, Circuit Judges, and

DOUMAR, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David G. Secular, New York, New York, for Appellant.

Michael Francis Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C. Holton,

Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Timothy Adams was convicted (after a jury trial) of conspiracy to

possess with the intent to distribute cocaine base ("crack"). See 21

U.S.C. §§ 841(a)(1) and 846. The district court sentenced him to life

without parole. See 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1. Adams

challenges his conviction and sentence, claiming that the evidence

against him was insufficient to establish the conspiracy charged, that

certain evidence was erroneously admitted, that the statute and sentencing guidelines under which he was sentenced are unconstitutional,

and that the sentence imposed violates his rights under the Eighth

Amendment. We find no merit in these contentions and affirm the district court.

I.

The evidence, viewed in the light most favorable to the government, see United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993),

established the following. Adams was the leader of a group that

brought cocaine from New York for sale in Winston-Salem, North

Carolina. Adams recruited Paula and Clarence Bonaparte, husband

and wife, to transport the cocaine from New York to Winston-Salem.

Once the drugs reached Winston-Salem, Adams had several people

who acted as "runners" or street distributors for him. Adams and Patrick Harvey, another large operator, acted as backup suppliers for

each other. One of Adams' sellers, Tyrone Smith, testified that

Adams told him that he could get drugs from Patrick Harvey when

Adams was out of stock. Paula Bonaparte testified that she made trips

to New York to fetch cocaine for both Adams and Harvey. Finally,

Harvey and Adams shared profitable dealers.

II.

Adams first argues that the government's proof against him established at most two separate conspiracies which were different from

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the one far-reaching conspiracy led by Patrick Harvey and charged in

the indictment. Specifically, Adams claims that the evidence was

insufficient to link him to Harvey's broad conspiracy. A participant's

link to a drug conspiracy can be established by showing that he has

acted in furtherance of a "mutual interest in sustaining the overall

enterprise of catering to the ultimate demands of a particular drug

consumption market." United States v. Burgos , 94 F.3d 849, 858 (4th

Cir. 1996) (en banc) (citation omitted). We are satisfied that the evidence, which we summarized above in part I, was sufficient to link

Adams and Harvey in an overall conspiracy to supply the drug market

in Winston-Salem.

III.

Adams next makes two complaints about the admission of evidence. First, he argues that the district court committed reversible

error in admitting evidence that he and his co-conspirators possessed

firearms. Adams contends that because the indictment did not charge

him with firearms violations, the evidence about guns was irrelevant

and unduly prejudicial. We have held, however, that evidence of firearms possession is relevant in narcotics conspiracy cases. United

States v. Ricks, 882 F.2d 885, 892 (4th Cir. 1989), cert. denied, 493

U.S. 1047 (1990); United States v. Collazo, 732 F.2d 1200, 1206 (4th

Cir. 1984), cert. denied, 496 U.S. 1105 (1985). However, evidence of

firearms possession may not be introduced if the government is trying

to prove an uncharged crime or if the evidence unfairly prejudices the

defendant. Neither limitation is implicated in this case. The references

to guns were brief and in the context of showing that guns were

around when drugs were being sold, nothing more. Thus, the district

court did not err in allowing testimony about the firearms.

Second, Adams argues that he was denied a fair trial because several witnesses (during the Government's case) mentioned that Adams

was in prison during a portion of the conspiracy period. Specifically,

Adams says that testimony about his earlier imprisonment was evidence of his propensity for crime that is inadmissible under Rule

404(b) of the Federal Rules of Evidence. To begin with, we note that

the government did not ask its witnesses about Adams' prior imprisonment. The witnesses simply mentioned the fact inadvertently in

answering questions on other topics. The government argues that this

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testimony was proper in any event because it served to fill a chronological or conceptual void. See United States v. Yusufu, 63 F.3d 505,

511 (7th Cir.), cert. denied, 116 S. Ct. 578 (1995). We need not

decide whether it was error for the jury to hear testimony about

Adams prior incarceration because to the extent there might have

been error, it was cured or waived. After each mention of Adams'

prior imprisonment, the district court instructed the jury to disregard

the testimony because it had nothing to do with this trial. We believe

that this instruction was sufficient to cure any error. Bell v. Evatt, 72

F.3d 421, 434 (4th Cir. 1995) (noting that there is an assumption that

jurors follow their instructions), cert. denied , 116 S. Ct. 2533 (1996).

Finally, even if any error was not cured, it was waived. As part of his

alibi defense Adams offered testimony from his own witnesses that

he was incarcerated during a portion of the conspiracy. Thus, Adams

was not prejudiced by government witness testimony that he had been

in prison.

IV.

Adams raises constitutional challenges to his sentence. He argues

that the statute and the Sentencing Guidelines, which impose stiffer

sentences for crack, see 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1,

discriminate against African Americans in violation of the Equal Protection Clause. Adams contends that we should use a strict scrutiny

analysis to evaluate this claim. He acknowledges that we have upheld

the constitutionality of the stiffer crack sentences under a rational

basis standard. United States v. Thomas, 900 F.2d 37 (4th Cir. 1990).

In Thomas we noted that "21 U.S.C. § 841(b) does not discriminate

on the basis of a suspect classification or the exercise of a fundamental right, and thus does not require heightened scrutiny." Id. at 39.

Adams argues, however, that the Supreme Court's recent decision in

Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), changes

the landscape and requires us to re-evaluate our decision in Thomas.

We disagree.

Adams says that Adarand stands "for the proposition that because

it is impossible to determine the true intent behind a statute, any law

which has a disparate racial impact must be subjected to the standard

of strict scrutiny in order for the demands of due process to be satisfied." Brief of appellant at 37. Adams misreads Adarand. The

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Supreme Court said in Adarand, "We note, incidentally, that this case

concerns only classifications based explicitly on race, and presents

none of the additional difficulties posed by laws that, although

facially race neutral, result in racially disproportionate impact and are

motivated by a racially discriminatory purpose." Adarand, 115 S. Ct.

at 2105 (emphasis added). Thus, the Court made clear that it was not

reversing prior disparate impact cases that required a showing of discriminatory intent for strict scrutiny to apply. See, e.g., Washington

v. Davis, 426 U.S. 229, 242 (1976) (a showing of disproportionate

impact standing alone is insufficient to trigger strict scrutiny analysis). Here, Adams has offered nothing which causes us to re-visit

Thomas because he (Adams) has alleged nothing more than disparate

impact. His Equal Protection challenge therefore fails.

Adams also claims that his sentence -- life imprisonment without

parole -- was so disproportionate to his offense that it constitutes a

violation of the Eighth Amendment's Cruel and Unusual Punishment

Clause. In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court

held that "a criminal sentence must be proportionate to the crime for

which the defendant has been convicted." Solem, 463 U.S. at 290. We

have said that apart from capital sentencing a proportionality analysis

is required only in those cases involving life sentences without parole.

United States v. Melton, 970 F.2d 1328, 1336 (4th Cir. 1992).

Because this case involves such a sentence, proportionality review is

appropriate.

In Solem the Supreme Court offered several objective factors to

guide courts in the determination of whether a sentence is proportional to the crime committed. First, we must consider the gravity of

the offense and the harshness of the penalty. Id. Second, we look at

the sentences imposed for other crimes within the same jurisdiction

to determine whether the instant conduct is treated similarly to other

crimes of comparable gravity. Id. at 291. And finally, we compare the

sentences imposed in other jurisdictions for the same crime. Id.

The gravity of Adams' offense is heavy. We have stated that

"[d]rug use, and the use of crack in particular, has become a pervasive, destructive force in American society." United States v.

D'Anjou, 16 F.3d 604, 613 (4th Cir.), cert. denied, 114 S. Ct. 2754

(1994). There was considerable evidence that Adams managed a ring

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of crack distributors by coordinating procurement, marketing, and distribution. Thus, the district court correctly characterized him as a

"leader" and increased his offense level by four pursuant to U.S.S.G.

§ 3B1.1(a). Additionally, there was evidence that Adams possessed a

dangerous weapon during the commission of the charged crime. Thus,

the district court correctly enhanced his sentence by two levels pursuant to U.S.S.G. § 2D1.1(b)(1). In sum, the district court properly

applied the Sentencing Guidelines which resulted in an offense level

of 44 and which accurately reflected the gravity of the offense. Given

the severity of the offense Adams committed, we cannot say that his

punishment was disproportionately harsh. See United States v.

Meirovitz, 918 F.2d 1376, 1381 (8th Cir. 1990), cert. denied, 502 U.S.

829 (1991).

Consideration of steps two and three of the Solem structure does

not alter our conclusion. As we said in D'Anjou , "[b]ecause sentencing under the Federal Sentencing Guidelines involves the calculation

of offense characteristics across criminal categories, it is difficult to

undertake the type of comparative analysis that the pre-guidelines

Solem decision advises." D'Anjou, 16 F.3d at 613. Nevertheless, circuit precedent instructs us (a) that a life sentence for a major drug violation is not disproportionate in comparison with other sentences

under the Guidelines and (b) that the statutes of the states within this

circuit impose similarly severe sentences for narcotics violations of

the magnitude involved in this case. Id. Consequently, steps two and

three of the Solem test are satisfied, and Adams' Eighth Amendment

challenge fails.

V.

For the foregoing reasons, we affirm Adams' conviction and sentence.

AFFIRMED

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