UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4100

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRELL T. WASHINGTON, a/k/a D-Black,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., District 

Judge. (3:11-cr-02064-JFA-10)

Argued: March 18, 2014 Decided: June 2, 2014

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, 

South Carolina, for Appellant. Jimmie Ewing, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. 

ON BRIEF: William N. Nettles, United States Attorney, William K. 

Witherspoon, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Darrell Washington was convicted of various drug-related 

charges, including conspiracy to distribute crack and powder 

cocaine, and use of a firearm in furtherance of a drugtrafficking offense. The district court sentenced Washington to 

a total of 300 months’ imprisonment, comprising a 240-month 

mandatory minimum sentence for the drug-conspiracy conviction 

and a mandatory consecutive 60-month sentence on the § 924(c) 

using-a-gun-in-furtherance conviction. Washington appeals, 

challenging his sentence but not his conviction. For the 

reasons set forth below, we affirm.

I.

Washington was one of ten defendants named in a 47-count 

indictment. Washington was charged with one count of conspiring 

to distribute five kilos or more of cocaine powder and 280 grams 

or more of crack cocaine, see 21 U.S.C. §§ 841(b)(1)(A), 846; 

two counts of possession with intent to distribute 28 grams or 

more of crack cocaine, see 21 U.S.C. § 841(b)(1)(B); two counts 

of being a felon in possession of a firearm, see 18 U.S.C. § 

922(g)(1); one count of using a firearm in furtherance of a 

drug-trafficking offense, see 18 U.S.C. § 924(c)(1), and three 

counts of using a communications facility to facilitate a felony 

drug offense, see 21 U.S.C. § 843(b). According to the 

allegations of the indictment, the conspiracy began around the 
3

summer of 2000 and continued through February 2012, the date of 

the indictment; the conduct underlying the various substantive 

counts asserted against Washington occurred on specified dates 

in 2009 and 2011.

While most of the defendants named in the indictment 

pleaded guilty, Washington proceeded to trial. In the first 

phase of a bifurcated proceeding, the jury convicted Washington 

on the conspiracy charge and on six of the eight substantive 

counts.1

 In the second phase, the jury determined the drug 

quantities involved and found the conspiracy responsible for 

five kilos or more of cocaine and 280 grams or more of crack 

cocaine.

A conspiracy involving the drug quantities found by the 

jury normally carries a mandatory minimum sentence of 10 years. 

See 21 U.S.C. § 841(b)(1)(A)(ii) & (iii). However, if the 

defendant violates § 841 “after a prior conviction for a felony 

drug offense has become final,” id. (emphasis added), and the 

government provides the defendant with the required notice, see

21 U.S.C. § 851(a), the mandatory minimum sentence increases to 

20 years, see 21 U.S.C. § 841(b)(1)(A). Washington was 

convicted in 2004 in South Carolina state court of possession 

 1 The jury acquitted Washington of one possession-withintent-to-distribute count and a related § 922(g) count 

involving conduct occurring on May 6, 2009.
4

with intent to distribute crack cocaine. The district court at 

sentencing determined that that conviction triggered application 

of the 20-year mandatory minimum sentence, and the court 

sentenced Washington to a total of 300 months’ imprisonment. 

This appeal followed.

II.

Washington challenges the district court’s determination 

that the 20-year mandatory minimum sentence required by § 

841(b)(1)(A) was triggered by Washington’s 2004 conviction. 

Relying on the Supreme Court’s decision in Alleyne v. United 

States, 133 S. Ct. 2151, 2155 (2013), which held that facts that 

increase a mandatory minimum sentence must be submitted to the 

jury, Washington argues that his Sixth Amendment rights were 

violated because the district court, not the jury, made the 

factual findings about his prior conviction necessary to 

increase the mandatory minimum sentence. We disagree.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme 

Court held that the Sixth Amendment requires that any fact

“[o]ther than the fact of a prior conviction . . . that 

increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved beyond 

a reasonable doubt.” Id. at 490. In Harris v. United States, 

536 U.S. 545 (2002), the Court carved out from the Apprendi rule 

facts that merely increase the mandatory minimum sentence for a 
5

crime, concluding that the Sixth Amendment permitted judicial 

fact-finding that increases the mandatory minimum sentence. See

id. at 567.

The Court reversed course in Alleyne, overruling Harris and 

holding that any fact that increases the statutory mandatory 

minimum sentence is an element of the offense “and must be 

submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S. Ct. at 2158. The Alleyne Court was careful to 

note, however, that it was “not revisit[ing]” the narrow 

exception to the general rule for the fact of a prior conviction 

recognized in Almendarez–Torres v. United States, 523 U.S. 224 

(1998). See Alleyne, 133 S. Ct. at 2160 n.1 (“In Almendarez–

Torres . . . , we recognized a narrow exception to this general 

rule for the fact of a prior conviction. Because the parties do 

not contest that decision’s vitality, we do not revisit it for 

purposes of our decision today.”). Alleyne, therefore, did not 

disturb that exception and does not require prior convictions to 

be alleged in an indictment and submitted to the jury. See

United States v. McDowell, 745 F.3d 115, 124 (4th Cir. 2014) 

(explaining that even after Alleyne, “Almendarez–Torres remains 

good law, and we may not disregard it unless and until the 

Supreme Court holds to the contrary”).

As to Washington’s prior conviction, the district court was 

required only to determine what crime Washington was convicted 
6

of and when he was convicted, facts that are inherent in the 

fact of conviction itself. See United States v. Thompson, 421 

F.3d 278, 285-86 (4th Cir. 2005). The district court’s factfinding about the 2004 conviction was thus entirely consistent 

with the Almendarez-Torres fact-of-prior-conviction exception

and did not violate Washington’s Sixth Amendment rights. See

United States v. Smith, 451 F.3d 209, 224 (4th Cir. 2006)

(explaining that the fact-finding required by § 851 does not 

violate the Sixth Amendment).2

Determining the date and subject matter of the prior 

conviction, of course, does not end the matter – the district 

court must also determine whether Washington violated § 841 

after the 2004 conviction. See 21 U.S.C. § 841(b)(1)(A) (“If 

any person commits such a violation [of § 841(a)] after a prior 

conviction for a felony drug offense has become final, such 

person shall be sentenced to a term of imprisonment which may 

not be less than 20 years . . . .” (emphasis added)).

Where, as here, “a defendant is convicted of a drug 

conspiracy under 21 U.S.C. § 846, prior felony drug convictions 

that fall within the conspiracy period may be used to enhance 

 2 Washington does not contend that the district court looked 

outside the Shepard-approved sources when determining the date 

and subject matter of Washington’s 2004 conviction. See Shepard 

v. United States, 544 U.S. 13, 26 (2005).
7

the defendant’s sentence if the conspiracy continued after his 

earlier convictions were final.” Smith, 451 F.3d at 224-25. 

Determining whether the conspiracy continued on, however, does 

not require the district court to make factual findings about 

the prior conviction, but simply requires the district court to 

determine the scope and effect of the verdict rendered by the 

jury in this case.

Even if we were to accept Washington’s argument that the 

jury should have been asked if the conspiracy continued after 

the date of the prior conviction, any error would be harmless 

beyond a reasonable doubt. Although the indictment alleged that 

the conspiracy began in the summer of 2000, there was no 

evidence showing that Washington was involved in the conspiracy 

before 2004 -- all of the evidence presented at trial of 

Washington’s involvement in the charged conspiracy involved 

events occurring after the 2004 state-court conviction. Indeed, 

Washington’s own statements to law enforcement officials, which 

were admitted at trial after the district court found that 

Washington breached the terms of a proffer agreement, show that 

Washington did not join the conspiracy until well after 2004. 

See Supp. J.A. 205. Because the only evidence presented to the 

jury involved post-2004 events, no rational jury could have 

convicted Washington of conspiracy but also found that the 

conspiracy ended before 2004. Any error was therefore harmless. 
8

See, e.g., United States v. Brown, 202 F.3d 691, 700 (4th Cir.

2000) (failure to submit element of offense to the jury is 

harmless beyond a reasonable doubt “where a reviewing court 

concludes beyond a reasonable doubt that the omitted element was 

uncontested and supported by overwhelming evidence” (internal 

quotation marks omitted)); id. at 701 (if omitted element is 

contested, error is harmless if the record does not contain 

evidence “that could rationally lead to a contrary finding with 

respect to that omitted element” (internal quotation marks 

omitted)). 

III.

Accordingly, for the foregoing reasons, we hereby affirm 

Washington’s sentence.

AFFIRMED