UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4226

OLOYEDE JOHNSON, a/k/a Johnson

Oloyede, a/k/a Little Black,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4227

WILLIAM M. PARROS, a/k/a B.J.,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4228

ALFRED CHEESE, III, a/k/a Big

Cheese,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4271

CLARENCE HICKS, a/k/a Bunky,

Defendant-Appellant. 
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4280

KENDALL SCHUYLER, a/k/a Sleepy,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4315

OWEN ROBINSON, a/k/a Heavy,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CR-98-259-L)

Submitted: August 31, 2001

Decided: November 2, 2001

Before NIEMEYER and MICHAEL, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

David P. Henninger, Bel Air, Maryland; Gerald D. Glass, Towson,

Maryland; Flynn M. Owens, Baltimore, Maryland; Michael D. Mon2 UNITED STATES v. JOHNSON
temarano, Baltimore, Maryland; Gary A. Ticknor, Baltimore, Maryland; G. Godwin Oyewole, Washington, D.C., for Appellants.

Stephen M. Schenning, United States Attorney, Robert R. Harding,

Assistant United States Attorney, Tarra DeShields, Assistant United

States Attorney, Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Oloyede Johnson, William Parros, Alfred Cheese, Clarence Hicks,

Kendall Schuyler, and Owen Robinson were convicted on charges

related to their participation in a drug distribution ring operating in

Baltimore, Maryland. For the following reasons, we affirm their convictions, although we vacate the sentences imposed on Parros, Schuyler and Robinson and remand as to those Appellants for re-sentencing.

I.

Appellants are former members of a drug trafficking conspiracy

based predominantly in the O’Donnell Heights area of southeast Baltimore. That conspiracy, captained by Antonio Howell, distributed

primarily cocaine base, but also sold powder cocaine, heroin, and

marijuana. At the height of the conspiracy, Appellants required

weekly trips to New York to obtain kilogram quantities of powder

cocaine, which they would cook into cocaine base, in order to supply

their operation. The volume and profit of the organization was

matched by its ruthlessness, however, as at least two individuals were

killed as part of the organization’s attempt to secure control over its

areas of distribution. 

At trial, several members of the conspiracy testified against the

Appellants, including Howell and Michael Scales. At the conclusion

UNITED STATES v. JOHNSON 3
of the thirty-day trial, a jury convicted each Appellant of conspiring

to distribute a controlled substance in violation of 21 U.S.C.A.

§§ 846, 841 (West 1999 & Supp. 2001). Johnson was also convicted

of conspiring to murder and committing murder in aid of racketeering

activity in violation of 18 U.S.C.A. § 1959(a)(1), (5) (West 2000),

possessing cocaine base with intent to distribute in violation of 21

U.S.C.A. § 841 (West 1999 & Supp. 2001), possession of a firearm

by a felon in violation of 18 U.S.C.A. § 922(g) (West 2000), and use

of a firearm in a drug trafficking offense in violation of 18 U.S.C.A.

§ 924(c) (West 2000). Additionally, Cheese was also convicted of two

counts of possession of a firearm by a felon in violation of § 922(g),

Schuyler of carrying a firearm in connection with drug trafficking in

violation of § 924(c), and Robinson of possessing cocaine base with

intent to distribute in violation of § 841(a). 

Although Appellants raise nine issues on appeal, collectively they

raise three challenges to their convictions on Count Three, charging

Appellants with conspiring to distribute controlled substances. As a

result of their convictions on Count Three, William Parros and Clarence Hicks each received thirty-year sentences,1

 and Johnson a tenyear sentence. Cheese, Schuyler and Owen Robinson, however,

received life sentences. On appeal, Appellants contend that, in light

of the Supreme Court’s decision in Apprendi v. New Jersey,

2

 § 841 is

unconstitutional, and that their sentences were imposed in violation of

Apprendi’s requirement that "other than the fact of prior conviction,

any fact that increases the penalty for a crime beyond the prescribed

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

a reasonable doubt." 530 U.S. 466, 490. 

II.

Because Appellants did not raise these challenges to their convictions and sentences before the district court, they may only do so on

appeal if they can demonstrate plain error. See United States v. Angle,

254 F.3d 514, 517 (4th Cir. 2001) (citing Fed. R. Crim. P. 52(b);

1Parros and Hicks were only convicted on Count Three of the second

superseding indictment. 

2

530 U.S. 466 (2000). 

4 UNITED STATES v. JOHNSON
United States v. Olano, 507 U.S. 725, 731-32 (1993)). Consequently,

in order to prevail on appeal Appellants must demonstrate that: 1)

their indictment does not include the specific threshold drug quantities necessary for conviction under the aggravated drug trafficking

offenses in § 841(b)(1)(A), (B);3 2) their resulting sentences are in

excess of the statutory maximum otherwise available under

§ 841(b)(1)(C); 3) sentencing in this manner affected their substantial

rights; and 4) this court should notice that error. See United States v.

Promise, 255 F.3d 150, 156-57, 160, 161 (4th Cir. 2001). We note as

a threshold matter that the Appellants’ indictment does not identify

the drug quantities involved. 

A.

Initially, we reject Appellants’ challenge to the constitutionality of

§ 846 and § 841. In essence, Appellants argue that because courts uniformly treated the criteria in § 841(b) permitting enhanced maximum

sentences as sentencing factors prior to Apprendi, but have since identified those facts as elements of "aggravated drug trafficking

offenses," see, e.g., Promise, 255 F.3d at 152 n.1, Apprendi renders

§ 841 internally inconsistent, and thus unconstitutional. However,

because the sentencing factor label applied to the drug thresholds of

§ 841(b) is a purely judicial construct, the creation and use of which

followed the enactment of § 841, we find the reassignment of these

facts from sentencing factors to elements of the offense following

Apprendi is not of constitutional moment. See United States v. Cernobyl, 255 F.3d 1215, 1218-19 (10th Cir. 2001) (citing cases from the

Fifth, Seventh, and Eleventh Circuits dismissing constitutional challenges to § 841 in the wake of Apprendi); see also Promise, 255 F.3d

at 168-74 (Luttig, J. concurring) (arguing the constitutional rule of

Apprendi should not impact the statutory analysis of § 841). 

B.

With respect to Appellants’ challenge to their sentences on Count

Three of the second superseding indictment, we find that Johnson and

Hicks cannot show their sentences exceeded the applicable statutory

3

See United States v. Promise, 255 F.3d 150, 152 n.1 (4th Cir. 2001).

UNITED STATES v. JOHNSON 5
maximums. Under § 841(b)(1)(C), a defendant whose indictment for

a violation of § 841(a) does not describe the quantities of drugs

involved may receive a sentence of twenty years upon conviction. As

a result, Johnson’s ten year sentence for his conviction under § 846,

which is punishable like a violation of § 841, does not give rise to an

error under Apprendi. See United States v. Angle, 254 F.3d 514, 518

(4th Cir. 2001). 

Similarly, Hicks cannot demonstrate error with respect to his thirtyyear sentence as to Count Three, his single count of conviction.

Although the base statutory maximum of § 841(b)(1)(C) is twenty

years, that subparagraph permits a maximum of thirty years where the

defendant has one or more prior felony convictions. Here, the Government filed the required pre-trial information on January 8, 1999

indicating its intent to seek enhanced penalties under § 841(b) against

Hicks, Cheese, Schuyler, and Robinson in accordance with 21 U.S.C.

§ 851 (1994). Because § 841(b)(1)(C) authorizes a ten-year enhancement based solely on a defendant’s prior felony convictions, and

Apprendi explicitly exempts prior convictions from its scope, 530

U.S. at 490, Hicks’ thirty-year sentence does not contain an Apprendi

defect. Accordingly, Johnson’s and Hicks’ convictions and sentences

do not implicate Apprendi as a threshold matter. 

Although Parros, Cheese, Schuyler, and Robinson all received sentences in excess of the maximum applicable to them under

§ 841(b)(1)(C), we find Cheese cannot satisfy the third prong of the

plain error inquiry, as his sentence does not affect his substantial

rights. Although Cheese’s life sentence on Count Three is erroneous,

because his offense level under the Sentencing Guidelines required a

mandatory life sentence, and he also received statutory-maximum life

sentences under § 924(e) for his firearms convictions, the error as to

Count Three did not expose him to a longer term of incarceration than

that to which he would otherwise be subject. See Angle, 254 F.3d at

518. As a result, Cheese cannot demonstrate the Apprendi error in his

sentence on Count Three affected his substantial rights. 

Applying the plain error analysis to the remaining Appellants, Parros, Schuyler, and Robinson, we find their sentences must be vacated

in light of Apprendi. The life sentences imposed on Schuyler and

Robinson are in excess of the thirty-year statutory maximum dis6 UNITED STATES v. JOHNSON
cussed above, demonstrating error that is plain. See Promise, 255 F.3d

at 156-57. Likewise, because the Government did not include Parros

in its pre-trial § 851 information, only the twenty-year maximum of

§ 841(b)(1)(C) was authorized as to him. See § 851. With respect to

the third prong of the plain error inquiry, we have found that a sentence in excess of the authorized statutory maximum to which a

defendant would not otherwise be subject affects his substantial

rights. Id. Finally, we recently determined that where the sentence

imposed is defective due to a fatal error in the indictment, as is the

case here, this court should notice that error. United States v. Cotton,

261 F.3d 397, ___ (4th Cir. 2001). Accordingly, we vacate the sentences imposed on Parros, Schuyler, and Robinson for Count Three,

as well as the life sentence imposed on Robinson for Count Four, and

remand to the district court for re-sentencing at or below the relevant

statutory maximums of § 841(b)(1)(C).4

In light of the foregoing consideration of the Appellants’ sentences

in light of Apprendi, we find their additional collective assignments

of error to be meritless. With respect to the application of the crossreference contained in § 2A1.1(d) of the United States Sentencing

Guidelines Manual (2000) in calculating their sentences, we have

found that Apprendi does not reach a judge’s determination as to facts

impacting the determination of a sentence, provided the resulting sentence is within the statutory maximum authorized by the elements

charged in the indictment. Promise, 255 F.3d at 156 n.5; United

States v. Kinter, 235 F.3d 192, 202 (4th Cir. 2000). Additionally, to

the extent some Appellants challenge the use of their prior convictions against them at sentencing, the Supreme Court in Apprendi recognized that while its decision was arguably in conceptual tension

with Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998)

(5-4 decision) (holding prior convictions constitute sentencing factors,

even if they increase the available statutory maximum), it nonetheless

stated that its resolution left the sui generis issue of recidivism

addressed in Almendarez-Torres undisturbed. See Apprendi, 530 U.S.

at 489-90. Accordingly, we find these additional assignments of error

on appeal to be meritless. 

4We note, however, that because Schuyler and Robinson have multiple

counts of conviction, on remand their sentences may be "stacked" in

accordance with United States v. White, 238 F.3d 537 (4th Cir. 2001). 

UNITED STATES v. JOHNSON 7
III.

Appellants also raise several individualized assignments of error.

However, our careful review of each indicates that they do not undermine the validity of those Appellants’ convictions or sentences. 

A.

On appeal, Johnson contends the district court erred in refusing

him the opportunity to explore transcripts of a state trial in which

Michael Scales, a Government witness against the Appellants, had

previously been accused of the murder that was the basis for Count

Sixteen of the instant indictment, charging both Johnson and Schuyler

with use of a firearm in relation to a drug trafficking crime in violation of § 924(c). Johnson contends that because Scales testified below

that the key witnesses at his state trial testified truthfully in exonerating him, and that their earlier statements were false, he should be permitted to explore whether those witnesses’ earlier statements

(implicating both Scales and Schuyler) were false as Scales contended, or were in fact true. 

We find the district court did not abuse its discretion in denying

Johnson the opportunity to do so. See United States v. Brooks, 111

F.3d 365, 371 (4th Cir. 1997) (reviewing evidentiary decisions for

abuse of discretion, subject to harmless error review). Essentially,

Johnson sought to present testimony through the Scales’ trial transcript in order to support his defense theory that others were responsible for the murder in question. However, Johnson’s presence at the

murder scene was not ruled out by the witnesses’ earlier statements

against Scales, and the testimony offered by Scales and Howell in the

instant trial, that Johnson was the triggerman and was wounded during an exchange of gunfire, was corroborated by evidence that Johnson sought treatment at an area hospital on the night in question for

a bullet wound. Moreover, the jury was presented with evidence that

Scales had been tried and acquitted of the murder in question, based

on the inconsistent statements of the key witnesses. As a result, we

find there was a sufficient independent basis for Johnson to both challenge Scales’ credibility and raise the possibility that others were

responsible for the murder in question. 

8 UNITED STATES v. JOHNSON
Johnson next argues the district court erred in denying his motion

for severance. Because there is a presumption that co-defendants

indicted together will be tried together, see Fed. R. Crim. P. 14, we

will only reverse a district court’s decision not to sever co-defendants

if it is so unfairly prejudicial that a miscarriage of justice would

result, United States v. Williams, 10 F.3d 1070, 1080 (4th Cir. 1993),

and thus we find that it abused its discretion in failing to sever. See

United States v. Smith, 44 F.3d 1259, 1267 (4th Cir. 1995). However,

because we find Johnson’s allegations on appeal indicate only that the

district court’s decision made his defense more difficult, United States

v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984) (internal citations

omitted), we find this assignment of error unavailing as well. 

B.

Cheese offers two related assignments of error, which we find to

be meritless. First, Cheese claims the district court erred in failing to

suppress evidence seized from his vehicle based on information the

Government obtained from a confidential source, inasmuch as that

information failed to provide probable cause that his vehicle constituted forfeitable contraband, and was thus subject to a warrantless

search. Our review of the pre-trial suppression hearing indicates the

Government provided the district court with evidence both corroborating the source’s statement and confirming its reliability as required

by Illinois v. Gates, 462 U.S. 213, 233-34 (1983).5 Accordingly, we

find the district court’s suppression determination is not erroneous. 

Similarly, we find the district court did not err in declining to suppress evidence seized during the subsequent search of 1215 Sugarwood, a residence to which Cheese was linked through utility bills for

that address seized from his vehicle. On appeal, Cheese contends that

the items sought in the search warrant for that property could not reasonably have been expected to be found there. However, contrary to

Cheese’s assertion on appeal, the schedule of items sought included

5

In particular, the Government substantiated the source’s track record

for reliability and the fact that Cheese had previously been stopped with

a firearm and large sum of cash, the hallmarks of drug trafficking, see

United States v. Kennedy, 32 F.3d 876, 882-83 (4th Cir. 1994); United

States v. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990), in the vehicle.

UNITED STATES v. JOHNSON 9
indicia of ownership or occupancy, including items linking Cheese to

the residence. Accordingly, we find this assignment of error to be

meritless as well. 

C.

Finally, Parros offers two challenges to his thirty-year custodial

sentence as to Count Three, his only count of conviction. Essentially,

Parros contends the district court’s decision not to adjust the computation of his offense level to reflect his relatively minor role in the conspiracy constitutes clear error, and that the district court misperceived

its authority to depart downward from the resulting sentencing range.

We disagree. 

As a preliminary matter, this Court reviews denials of a downward

adjustment to a defendant’s offense level for clear error. See United

States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001). Here, the record

supports the district court’s conclusion that while Parros was indeed

the least involved defendant at trial, his role, although limited, was

not commensurate with a minor role as contemplated by USSG

§ 3B1.2. Accordingly, we decline to disturb Parros’ sentence on that

basis. 

We also reject Parros’ challenge to the district court’s conclusion

that a downward departure was not authorized. We need not resolve

here whether a jury’s recommendation for leniency can even serve as

a basis for a downward departure under the Sentencing Guidelines.

Compare United States v. Mickens, 977 F.2d 69, 73 (2nd Cir. 1992)

(concluding a downward departure is permissible), with United States

v. Rose, 20 F.3d 367, 374 n.6 (9th Cir. 1994) (stating a downward

departure is not permitted), and United States v. Dorvil, 784 F. Supp.

849, 853 (S.D. Fla. 1991) (concluding a downward departure is not

permitted). Under the circumstances of this case, the district court’s

conclusion that Parros’ role in the offense made him ineligible for a

downward adjustment under § 3B1.2 disqualified Parros for a downward departure under § 5K2.0 based upon that same factor. See Koon

v. United States, 518 U.S. 81, 94-95 (1996) (even an encouraged factor is not appropriate basis for departure if applicable guideline has

taken it into account). 

10 UNITED STATES v. JOHNSON
IV.

In light of the foregoing, we affirm the Appellants’ convictions, but

vacate the sentences imposed on Parros, Schuyler, and Robinson, and

remand those Appellants for re-sentencing consistent with this opinion. Additionally, while we grant Hicks’ motion to file a pro se supplemental brief, we deny relief on the claims raised therein as meritless.6

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

6

In that brief, Hicks argues 21 U.S.C.A. § 844 (West 1999) provides

the appropriate penalty provision where drug quantity is not charged in

the indictment. However, we have previously stated § 841 provides the

penalty provisions for violations of § 846. See Promise, 255 F.3d at 153

n.3. Hicks further argues the appropriate statutory maximum against

which to make the Apprendi inquiry is provided by the Sentencing

Guidelines. However, we find this argument meritless. See Kinter, 235

F.3d at 201. 

UNITED STATES v. JOHNSON 11