UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4802

TERENCE JEROME RICHARDSON,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4803

FERRONE CLAIBORNE, a/k/a Ron,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-00-383)

Submitted: September 11, 2002

Decided: October 29, 2002

Before WILKINS, WILLIAMS, and KING, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 
COUNSEL

Michael Hu Young, BARNES & BATZLI, P.C., Glen Allen, Virginia, for Appellant Richardson; Charles A. Gavin, BLACKBURN,

CONTE, SCHILLING & CLICK, P.C., Richmond, Virginia, for

Appellant Claiborne. Paul J. McNulty, United States Attorney, David

J. Novak, Assistant United States Attorney, Thomas E. Booth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Terence Richardson and Ferrone Claiborne (collectively, "Appellants") appeal their convictions and sentences for conspiracy to distribute 50 grams or more of cocaine base. See 21 U.S.C.A. § 846

(West 1999). We affirm in part and dismiss in part. 

I.

Beginning in 1991, Appellants sold cocaine base for the "Dogwood

crew" on Dogwood Street in Waverly, Virginia. A few years later,

Appellants began selling cocaine base at the nearby Waverly Village

Apartments (the Village). 

On the morning of April 25, 1998, after Appellants and another

individual, Shawn Wooden, obtained a quantity of cocaine base at the

Village, the three men walked into some nearby woods. Officer Allen

Gibson of the Waverly Police Department observed them and began

to follow. As Wooden began to sample the cocaine base, Gibson

approached the three men and ordered them to halt. Gibson attempted

to apprehend Richardson by grabbing his T-shirt as he tried to run

2 UNITED STATES v. RICHARDSON
away. Claiborne then grabbed Gibson from behind. During the ensuing struggle, Richardson shot Gibson in the stomach with Gibson’s

firearm. Richardson, Claiborne, and Wooden fled. 

Police arrived at the scene later that morning and found Gibson

lying in the woods. His weapon was approximately ten feet away.

Although Gibson was losing consciousness he was able to state that

he had followed two males into the woods because he thought they

were dealing narcotics. Gibson’s description of the two men, with a

few minor inconsistencies, matched that of Appellants. Gibson also

stated that he had struggled with the men and that they had taken his

firearm. Gibson explained that he tried to point the weapon away

from himself, but then "[t]hey shot me with my own . . . gun." J.A.

89 (internal quotation marks omitted). Gibson died later that day. 

The day after the shooting, police arrested Richardson and seized

from his father’s home a T-shirt that Richardson was wearing on the

day Officer Gibson was shot. Two days later, police arrested Claiborne. Both men claimed to have been elsewhere at the time of the

shooting. In December 1999, however, Richardson pleaded guilty in

state court to the involuntary manslaughter of Gibson, and Claiborne

pleaded guilty to being an accessory after the fact. 

A firearms examiner determined that the trigger pull on Gibson’s

firearm was 7.5 pounds and that the weapon had three safety features

to prevent an unintended firing. The examiner also determined that

the fatal shot was fired six to twelve inches from Gibson’s body, with

twelve inches being the more likely distance. 

Appellants were indicted for conspiring to distribute 50 grams or

more of cocaine base, see 21 U.S.C.A. § 846; killing a law enforcement agent during narcotics trafficking, see 21 U.S.C.A.

§ 848(e)(1)(B) (West 1999); and using a firearm to commit murder

during narcotics trafficking, see 18 U.S.C.A. § 924(j) (West 2000). A

jury convicted Appellants of the narcotics conspiracy but acquitted

them of the murder and firearms charges. 

At sentencing, the district court applied a cross-reference to the

first degree murder guideline based on its factual finding, by clear and

convincing evidence, that Appellants had "killed [Gibson] under cirUNITED STATES v. RICHARDSON 3
cumstances that would constitute murder under 18 U.S.C. § 1111."

United States Sentencing Guidelines Manual § 2D1.1(d)(1) (2001).

Application of the cross-reference yielded a base offense level of 43

for both Appellants. The district court determined that the Guidelines

directed imposition of life sentences. 

Appellants then moved for a downward departure on the grounds

that they had been prosecuted in state court for Gibson’s murder, they

had been acquitted of the federal murder charge, and they were now

faced with presumptive life sentences based on the cross-reference.

The district court expressly recognized that it could depart downward

but declined to do so, explaining that this case was not atypical

because deaths are often caused by the use of firearms in connection

with narcotics trafficking, the killing of Gibson was very serious, and

the successive prosecutions were not onerous. 

II.

Appellants first claim that there was insufficient evidence to support their convictions, arguing that their individual sales of cocaine

base on Dogwood Street and at the Village were too fragmented and

sporadic to constitute the single conspiracy that was charged. To

decide whether the evidence is sufficient to support Appellants’ convictions, we must determine whether "there is substantial evidence,

taking the view most favorable to the Government, to support" the

verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). 

The elements of a narcotics trafficking conspiracy are (1) the existence of an agreement between two or more persons to distribute narcotics, (2) the defendant’s knowledge of the conspiracy, and (3) the

defendant’s knowing and voluntary participation in the conspiracy.

See United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en

banc). A single conspiracy exists when it has "the same objective,

. . . the same goal, the same nature, the same geographic spread, the

same results, and the same product." United States v. Capers, 61 F.3d

1100, 1107 (4th Cir. 1995) (internal quotation marks omitted). Further, a single conspiracy may be found even when there is "a looselyknit association of members linked only by their mutual interest in

sustaining the overall enterprise." Id. (internal quotation marks omitted). 

4 UNITED STATES v. RICHARDSON
Here, the evidence showed that Appellants and their various coconspirators often sold cocaine base together on Dogwood Street and at

the Village. Further, there was an overlap of participants, suppliers,

customers, and time at these locations. Thus, the evidence amply supported Appellants’ narcotics conspiracy convictions.1

III.

Appellants advance several legal and factual arguments challenging the application of the murder cross-reference. We review the factual findings of the district court for clear error, and we review its

legal interpretation of the Sentencing Guidelines de novo. See United

States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000). 

A.

Appellants first argue that application of the cross-reference violates due process because it punishes them under the first degree murder guideline, even though the district court found that they had

committed a second degree murder. We disagree. First, it is clear that

a defendant has no due process right to a particular sentence within

the range authorized by statute. See Gardner v. Florida, 430 U.S. 349,

358 (1977) (plurality opinion). Here, Appellants were sentenced

within the statutory maximum—life imprisonment—for their offense

of conviction, conspiracy to distribute 50 grams or more of cocaine

base. See 21 U.S.C.A. § 841(b)(1)(A)(iii) (West 1999 & Supp. 2002).

Further, as the Supreme Court has explained, "sentencing enhance1Appellants also contend that the Government’s witnesses were unreliable because many of them were narcotics offenders who sought

leniency in their own cases. This argument ignores that the jury, not this

court, determines witness credibility. See United States v. Wilson, 118

F.3d 228, 234 (4th Cir. 1997). Indeed, the witnesses’ criminal records,

inconsistent statements, and agreements with the Government were fully

disclosed to the jury. 

Claiborne argues that the district court erred in admitting evidence of

narcotics sales he made while he was a minor. This argument fails

because it is clear that Claiborne continued to participate in the narcotics

conspiracy after he became an adult. See United States v. Spoone, 741

F.2d 680, 687 (4th Cir. 1984). 

UNITED STATES v. RICHARDSON 5
ments do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in

which he committed the crime of conviction." United States v. Watts,

519 U.S. 148, 154 (1997) (per curiam). Thus, there was no due process violation. 

We also reject Appellants’ argument that the cross-reference violates nondelegation and separation of powers principles because it

"creates" a new offense—second degree murder committed during a

narcotics crime, punishable by life imprisonment. The Sentencing

Guidelines do not create any offenses; they determine punishment

based on the manner in which an offense is committed. See id.; Witte

v. United States, 515 U.S. 389, 402-03 (1995). 

In addition, the Supreme Court has rejected arguments that the

Sentencing Guidelines as a whole violate nondelegation and separation of powers principles. See Mistretta v. United States, 488 U.S.

361, 412 (1989). And, § 2D1.1(d)(1) is consistent with Congress’

intent to provide increased punishment when the offense of conviction is accompanied by other criminal activity. See id. at 375, 377. 

Appellants’ argument that application of the cross-reference violates Apprendi v. New Jersey, 530 U.S. 466 (2000), is also meritless.

In Apprendi, the Supreme Court held that "[o]ther than the fact of a

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." Id. at 490. The "prescribed statutory maximum" is found by reference to the statute of

conviction, not the Sentencing Guidelines, as Appellants contend. See

United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir. 2000), cert.

denied, 532 U.S. 937 (2001). Here, Appellants were sentenced within

the statutory maximum—life imprisonment—for their offense of conviction. See 21 U.S.C.A. § 841(b)(1)(A)(iii). Thus, Apprendi is inapplicable. 

B.

We now turn to Appellants’ factual challenges to the application of

the murder cross-reference. For the cross-reference to apply, a homicide must meet the statutory definition of murder under 18 U.S.C.A.

6 UNITED STATES v. RICHARDSON
§ 1111 (West 2000). See U.S.S.G. § 2D1.1(d)(1). That statute defines

murder as "the unlawful killing of a human being with malice aforethought." 18 U.S.C.A. § 1111(a). 

We conclude that the district court did not commit clear error in

finding that Appellants killed Officer Gibson. The district court based

this finding on Gibson’s reasonably accurate description of the Appellants as his assailants, the corroborating testimony of Wooden and

another eyewitness, Appellants’ guilty pleas in state court, and their

false alibis. These facts amply support the finding that Appellants

murdered Gibson. 

Similarly, the finding of the district court that Appellants killed

Gibson with malice aforethought is not clearly erroneous. The district

court emphasized that the three men struggled and that Claiborne

pulled Gibson from the back while Richardson pulled him from the

front. Further, the court noted that Gibson’s firearm had a medium

trigger pull and three safety features to prevent an accidental shooting, and that Richardson had the weapon in his hand after the shot

was fired. This evidence supports the conclusion that Richardson

intentionally shot Gibson. At the very least, malice was established

because Appellants engaged in reckless and wanton conduct that

presented a high risk of death or serious bodily harm to Gibson. See

United States v. Fleming, 739 F.2d 945, 947-48 (4th Cir. 1984).2

C.

Finally, Appellants argue that the district court erred in denying

their motions for a downward departure. We may review a refusal to

2We need not resolve the parties’ disagreement about whether the district court properly applied a clear and convincing evidence standard,

rather than a preponderance of the evidence standard, to its factual findings at sentencing. Under either standard, the evidence amply supported

the findings of the district court, so there was no clear error. See United

States v. Montgomery, 262 F.3d 233, 249-50 (4th Cir.), cert. denied, 122

S. Ct. 576 (2001). 

Also, because we affirm the application of the murder cross-reference,

we do not consider Appellants’ arguments that the narcotics quantity

findings by the district court were erroneous. 

UNITED STATES v. RICHARDSON 7
depart downward only if the district court erroneously believed that

it lacked the authority to do so. See United States v. Aramony, 166

F.3d 655, 665 (4th Cir. 1999). Here, the district court expressly recognized its power to depart, but it denied Appellants’ motions on the

merits. Thus, the decision to deny the downward departure motions

is not reviewable, and we dismiss that portion of the appeal. 

IV.

For the reasons set forth above, we affirm Appellants’ convictions

and sentences, and we dismiss the part of the appeal challenging the

denial of Appellants’ downward departure motions. 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; DISMISSED IN PART

8 UNITED STATES v. RICHARDSON