UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4692

ARTHUR LEE HAIRSTON, SR., a/k/a

Reverend Arthur, a/k/a Big Arthur,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

W. Craig Broadwater, District Judge.

(CR-00-24)

Submitted: May 6, 2002

Decided: June 7, 2002

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Joseph B. Gilbert, MCNEIL & GILBERT, Jacksonville, North Carolina, for Appellant. Thomas E. Johnston, United States Attorney,

Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,

West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Arthur Lee Hairston, Sr., appeals from his convictions and sentences entered after a jury found him guilty of conspiracy to distribute

crack cocaine, three counts of distribution of crack cocaine, and two

counts of aiding and abetting the distribution of crack cocaine. On

appeal, Hairston raises numerous claims challenging both his convictions and sentences. After careful consideration, we affirm. 

I.

Hairston first challenges the denial of his motion for a new trial.

The district court’s ruling on a motion for a new trial is reviewed for

abuse of discretion. See, e.g., United States v. Stokes, 261 F.3d 496,

502 (4th Cir. 2001), cert. denied, 122 S. Ct. 1546 (2002). The motion

may be granted "if the interests of justice so require." Fed. R. Crim.

P. 33. In the district court and on appeal, Hairston raised seven separate grounds for granting him a new trial. However, even assuming

that the trial court erred as Hairston alleges, he has failed to show any

specific prejudice emanating from any of the court’s rulings that he

challenges. Accordingly, the district court did not abuse its discretion

in denying Hairston’s motion. 

II.

Hairston next argues that the district court erroneously denied his

motion to recuse. Hairston’s motion was based on recorded conversations of prison phone calls between Hairston and his wife, following

the jury’s verdict, where Hairston allegedly threatened Judge Broadwater and the Assistant United States Attorney prosecuting the case.

The Government made the trial court aware of the substance of Hairston’s threats. Judge Broadwater denied the motion, finding that Hairston’s statements were just "puffing" and not to be taken seriously. 

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Under 28 U.S.C.A. § 455(a) (West 1993), "[a]ny justice, judge, or

magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In

particular, a judge must disqualify himself when he has "a personal

bias or prejudice concerning a party." 28 U.S.C.A. § 455(b)(1). While

a defendant’s alleged death threat against a judge may, in some cases,

sufficiently raise the specter of partiality to warrant the judge’s

recusal, recusal is not automatically required simply because the trial

judge becomes aware of the threats. See United States v. Yu-Leung,

51 F.3d 1116, 1119-20 (2d Cir. 1995). In this case, recusal was not

warranted. The threats in this case were not taken seriously by the

judge or the AUSA, and there is no evidence that Judge Broadwater

strayed from his normal procedures. Because there were no grounds

to reasonably question the trial judge’s impartiality, the motion for

recusal was properly denied. 

III.

Next, Hairston asserts that the district court erred in calculating the

drug amount attributable to him. Specifically, Hairston complains that

the controlled buys did not provide accurate calculations from which

to estimate drug amounts. For example, $160 bought 1.87 grams one

day and .91 grams the next, even though both these purchases were

purported to be for an "8-ball" (1/8 ounce). To solve this discrepancy,

the presentence report totaled the grams bought and money paid to

determine the average price per gram. With these calculations, the

district court and the presentence report converted testimony regarding money spent into gram weights. On appeal, Hairston alleges that,

because the estimates were not exact, in each transaction without an

actual weight only .1 gram should be added. 

This court reviews the district court’s calculation of the quantity of

drugs attributable to a defendant for sentencing purposes for clear

error. See United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).

The sentencing guidelines do not demand certainty and precision;

they demand that a court do the best that it can with the evidence in

the record, erring on the side of caution. See United States v. Cook,

76 F.3d 596, 604 (4th Cir. 1996). Here, the court found that Hairston

was responsible for at least 500 grams but less than 1.5 kilograms of

crack cocaine. After a review of the record, we find that this determiUNITED STATES v. HAIRSTON 3
nation is not clearly erroneous, and Hairston’s assertion that a set

amount of .1 gram should be used for each transaction is without support. 

IV.

U.S. Sentencing Guidelines Manual § 5G1.2(d) (2000) instructs

that, in a case involving multiple counts of conviction, if the total

punishment mandated by the guidelines exceeds the highest statutory

maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Here,

the district court complied with § 5G1.2(d). First, it calculated a

guideline sentence of 290 months, which exceeded the statutory maximum of 240 months. See 21 U.S.C.A. § 841(b)(1)(C) (West Supp.

2001). Second, it imposed 240 months on each count and structured

the sentences to run consecutively to the degree necessary to reach the

290 month guideline sentence. 

Nonetheless, Hairston alleges that his sentence violated Apprendi

v. New Jersey, 530 U.S. 466 (2000), because it exceeded the statutory

maximum of 240 months. Hairston acknowledges that this court, in

United States v. White, 238 F.3d 537 (4th Cir.), cert. denied, 532 U.S.

1074 (2001), approved the "stacking" provision of § 5G1.2(d). However, Hairston asserts that the result in this case should be different

because, in White, there was no objection below and the case was

reviewed for plain error, while in this case Hairston properly objected.

Hairston’s argument is not logically sound. In White, the Court

found there was no plain error, because although White received sentences for multiple counts that exceeded the statutory maximum on

each count, the district court would have been obligated under

§ 5G1.2(d) to impose consecutive sentences as necessary to achieve

the total punishment mandated by the guidelines. See id. at 543. Here,

there was no error at all, because the district court followed

§ 5G1.2(d), a process approved in White. 

V.

Based on the foregoing, we affirm Hairston’s convictions and sentences. We grant the Government’s motion to file a supplemental

4 UNITED STATES v. HAIRSTON
appendix and 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

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