UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4665

JUANITA E. LAWSON,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4685

WADE CUTCHEN, a/k/a Tool Man,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4700

CURTIS D. DAVIS,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4861

ORRIS L. AVENT, a/k/a Junie Red,

Defendant-Appellant. 
Appeals from the United States District Court

for the Eastern District of Virginia, at Newport News.

Jerome B. Friedman, District Judge.

(CR-99-55)

Submitted: June 29, 2001

Decided: August 10, 2001

Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

James S. Ellenson, ELLENSON LAW OFFICE, Newport News, Virginia; Larry M. Dash, Newport News, Virginia; Terry N. Grinnalds,

Hampton, Virginia; Robert E. Long, LAW OFFICE OF ROBERT E.

LONG, Hampton, Virginia, for Appellants. Helen F. Fahey, United

States Attorney, Timothy R. Murphy, Special Assistant United States

Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Juanita Lawson, Wade Cutchen, Curtis Davis, and Orris Avent

were convicted by a jury of conspiracy to possess with intent to distribute and distribute 1000 grams or more of heroin and 500 grams

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or more of cocaine, and related substantive counts. Although the

indictment alleged drug quantity and type, the jury was instructed

that, to convict the defendants of conspiracy, the jurors need not find

that the Government had proved the exact drug amounts alleged in the

indictment. Lawson was sentenced to a term of 360 months imprisonment. Cutchen received a sentence of 324 months. Davis was sentenced to 300 months, and Avent was sentenced to 236 months

imprisonment. We affirm. 

All four defendants challenge their sentences on the ground that the

drug quantities used to compute their sentences were not submitted to

the jury and proved beyond a reasonable doubt, thus violating the rule

set out in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding

that, other than the fact of a prior conviction, any fact that increases

the statutory maximum penalty for a crime must be submitted to a

jury and proved beyond a reasonable doubt). We have since held that

drug quantity and type are elements of an offense under 21 U.S.C.A.

§ 841 (West 1999). United States v. Promise, ___ F.3d ___, 2001 WL

732389 (4th Cir. June 29, 2001) (en banc); United States v. Angle,

___ F.3d ___, 2001 WL 732124 (4th Cir. June 29, 2001) (en banc).

Because the district court failed to treat the "specific threshold drug

quantities" that trigger enhanced sentences under § 841(b)(1)(A) or

(b)(1)(B) as elements of the offense, 240 months is the statutory maximum sentence for the defendants’ conspiracy offense. Promise, 2001

WL 732389 at *1 & n.1. Avent’s 236-month sentence was thus not

erroneous under Apprendi. 

Defendants Lawson, Cutchen, and Davis received sentences of

more than 240 months imprisonment and preserved the Apprendi

issue for appeal by raising it at their respective sentencing hearings.

Because the district court failed to submit the element of drug quantity to the jury, the imposition of more than the statutory maximum

of 240 months was error. Id. Failure to instruct the jury on an element

of the offense is not structural error and may be harmless, however,

if it does not affect substantial rights. Neder v. United States, 527 U.S.

1, 7, 15 (1999); United States v. Stewart, ___ F.3d ___, 2001 WL

760262, at *16 (4th Cir. July 6, 2001). The test for determining

whether a non-structural constitutional error is harmless is "whether

it appears beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained." Neder, 527 U.S. at 15. 

UNITED STATES v. LAWSON 3
Our review of the testimony presented at trial discloses that the

Government introduced overwhelming evidence of the defendants’

involvement with quantities of heroin that were greater than the quantities of heroin charged in the indictment, and for Lawson and Davis,

with larger quantities of cocaine as well. At their respective sentencing hearings, the defendants contested the quantity of drugs attributed

to them principally by arguing that Alonzo Wooten, the Government’s chief witness, was not credible. They conceded that, if Wooten’s testimony were accepted, the Government had proved the

amounts charged in the indictment. An appeals court does not review

the credibility of witnesses when assessing the sufficiency of the government’s evidence. United States v. Hobbs, 136 F.3d 384, 390 n.11

(4th Cir. 1998). We conclude that the evidence of drug quantity was

overwhelming, and thus, it appears beyond a reasonable doubt that the

failure to submit drug quantity to the jury did not affect the outcome

of the trial and did not affect the defendants’ substantial rights. 

Moreover, because the defendants were convicted of multiple drug

offenses, had the district court recognized that the maximum sentence

was 240 months, it would have been required under U.S. Sentencing

Guidelines Manual § 5G1.2(d) (2000), to impose consecutive sentences to the extent necessary to achieve the guideline sentence. We

have held that, in this circumstance, a defendant’s substantial rights

are not violated by the imposition of consecutive sentences. Stewart,

2001 WL 760262, at *20; Angle, 2001 WL 732124, at *3-4; White,

238 F.3d at 543. In sum, we find no basis for holding that the failure

to submit drug quantity to the jury was anything but harmless error.

Defendants also claim that the district court’s failure to submit the

issue of drug quantity to the jury requires a new trial. Defendants

moved for a new trial in the district court, but their motions were

denied. We review the district court’s decision for abuse of discretion.

United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). Under

Federal Rule of Criminal Procedure 33, the district court may grant

a new trial "if the interests of justice so require." Because the defendants were properly sentenced for the conspiracy of which they were

convicted, the interests of justice do not require that they be retried.

Cf. United States v. Obi, 239 F.3d 662, 667 (4th Cir. 2001), petition

for cert. filed, May 8, 2001 (No. 00-9843). 

4 UNITED STATES v. LAWSON
Defendants next contend that the sentencing guidelines are unconstitutional under Apprendi in that they permit sentence enhancements

based on judicial fact findings by a preponderance of the evidence,

and consequently abridge various due process rights. We rejected this

argument in United States v. Kinter, 235 F.3d 192, 198-202 (4th Cir.

2000) (holding that there is no constitutional infirmity in district

court’s finding, by a preponderance of the evidence, facts relating to

sentence imposed within the statutory range), cert. denied, 121 S. Ct.

1393 (2001).

Raising the issue for the first time on appeal, Avent maintains that

the government’s use of witnesses who were under threat of prosecution or were seeking a reduction in sentencing based upon their cooperation violated his due process rights and that such evidence should

not be considered in determining the sufficiency of the evidence supporting his convictions for Count 1 and Count 22. He relies on the

federal bribery statute, 18 U.S.C.A. § 201(b)(3), (c)(2) (West 2000),*

but acknowledges that he has no legal support for his argument. We

have held that "the government does not violate § 201(c)(2) by granting immunity or leniency or entering into plea agreements to obtain

testimony." United States v. Richardson, 195 F.3d 192, 197 (4th Cir.

1999), cert. denied, 528 U.S. 1096 (2000). Nor is the government prevented from using testimony from a paid informant. United States v.

Anty, 203 F.3d 305, 308-10 (4th Cir.), cert. denied, 121 S. Ct. 131

(2000). Thus, the district court did not plainly err in admitting the testimony of the Government’s witnesses. United States v. Olano, 507

U.S. 725, 731-32 (1993) (providing standard). 

Finally, Avent challenges the sufficiency of the evidence supporting his conviction on Counts 18-21 for distribution of heroin and

cocaine. Our review of the record discloses that substantial evidence

supported the convictions. See United States v. Burgos, 94 F.3d 849,

862-63 (4th Cir. 1996) (en banc) (stating standard). 

We therefore affirm the defendants’ convictions and sentences. We

dispense with oral argument because the facts and legal contentions

*Title 18, § 201(b)(3) prohibits giving or promising anything of value

with intent to influence testimony. Section 201(c)(2) prohibits giving or

promising anything of value in return for testimony. 

UNITED STATES v. LAWSON 5
are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

6 UNITED STATES v. LAWSON