PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-4895

CURTIS LAKOY EDMONDS, a/k/a

Rude Boy,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Senior District Judge.

(5:08-cr-00368-F-1)

Argued: January 27, 2012

Decided: May 8, 2012

Before NIEMEYER and KEENAN, Circuit Judges, and

J. Michelle CHILDS, United States District Judge for the

District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Keenan and Judge Childs joined.

Certiorari granted, October 1, 2012 

Vacated by Supreme Court, October 1, 2012
COUNSEL

ARGUED: Michael W. Patrick, LAW OFFICE OF

MICHAEL W. PATRICK, Chapel Hill, North Carolina, for

Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF

THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: George E. B. Holding, United

States Attorney, Jennifer P. May-Parker, Felice McConnell

Corpening, Assistant United States Attorneys, OFFICE OF

THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

OPINION

NIEMEYER, Circuit Judge:

A jury convicted Curtis Edmonds on one count charging

him with conspiracy to traffic in more than 50 grams of crack

cocaine, in violation of 21 U.S.C. § 846, and on three counts

charging him with distributing crack cocaine, in violation of

§ 841(a)(1). The district court sentenced Edmonds to life

imprisonment.

Challenging his conviction, Edmonds contends that while

the evidence may have supported a finding of his involvement

in simple buyer-seller drug transactions, it did not support a

finding that he participated in any conspiracy. And challenging his sentence, he contends that (1) the district court failed

adequately to consider the sentencing factors contained in 18

U.S.C. § 3553(a), and (2) the court improperly enhanced his

sentence under 21 U.S.C. § 841(b)(1)(A) and U.S.S.G.

§ 4B1.1(a), based on his two prior North Carolina drugtrafficking convictions and our decision in United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (construing

North Carolina’s sentencing scheme for purposes of applying

federal sentencing enhancements).

2 UNITED STATES v. EDMONDS
Finding his arguments unpersuasive, we affirm.

I

After Justin Atkinson was arrested in November 2007 by

Oxford, North Carolina police for possession with intent to

distribute crack cocaine, Atkinson agreed to serve as a confidential informant for the police by engaging in controlled

drug purchases from his suppliers. Atkinson provided Detective Kevin Dickerson with the identities of his suppliers and

the types, quantities, and prices of drugs that he typically

could purchase from each. One of the suppliers whom Atkinson identified was Curtis Edmonds, and under the supervision

of Officer Dickerson, Atkinson entered into three controlled

purchases of crack cocaine from Edmonds, each of which was

recorded.

The first transaction took place on February 4, 2008. After

Atkinson arranged to purchase 14 grams (one-half ounce) of

crack cocaine from Edmonds for $450, Atkinson consummated the sale with money supplied by Officer Dickerson.

During the transaction, Edmonds referred to Atkinson by his

nickname, "Baby J," and confided that he had recently been

in possession of four ounces, from which "Crowell bought

a[n] ounce and a half" and "Jo-Jo came [and] got a half

ounce." He also told Atkinson that he was "trying to get back

to 425" as the price for 14 grams of crack and that "if [he] can

get to a . . . big eight [one-eighth of a kilogram], [he is] gonna

stop cooking it like that." At trial, Officer Dickerson

explained that "cooking" referred to the conversion of cocaine

powder into crack cocaine.

The second controlled purchase took place two days later,

on February 6, 2008. After briefly haggling over the price,

Edmonds and Atkinson completed the transaction with the

same quantity and price as were involved in the transaction on

February 4 — 14 grams of crack cocaine for $450. When

Atkinson told Edmonds, "I don’t want no bullshit[,] it better

UNITED STATES v. EDMONDS 3
be 14," Edmonds replied assuringly, "You know me." Right

after the deal, Edmonds called Atkinson back and said, "I got

another one you can get on face." At trial, Atkinson explained

that "on face" referred to a consignment arrangement in which

Atkinson would receive the drugs immediately and pay for

them later. Atkinson testified that he had entered into similar

consignment arrangements with Edmonds prior to the controlled purchases.

The third and final controlled purchase took place two

weeks later, on February 23, 2008, when Atkinson bought a

full ounce of crack cocaine for $1,000. During this transaction, Atkinson mentioned a person he knew who was willing

to pay "terrible money" for cocaine, but Edmonds declined to

meet the person, saying that he "ain’t fixing to sell to him."

At trial, Officer Dickerson explained that it was common for

drug distributors to be cautious about entering into new relationships with unfamiliar people.

Officer Dickerson arrested Edmonds on June 26, 2008, and

at the police station, after Officer Dickerson played a recording of his transactions with Atkinson, Edmonds agreed to talk

about his drug dealing. He disclosed that he had started dealing with Atkinson in December 2007 and that he had sold

Atkinson two ounces of crack on two occasions; one ounce of

crack on two occasions; one-half ounce of crack on more than

five occasions; and one-quarter ounce of crack on more than

five occasions. Edmonds also described drug transactions

with individuals other than Atkinson. After telling officers

that he had begun selling cocaine at the age of 17 (16 years

earlier), he explained more particularly that after he left prison

in April 2007, he resumed dealing in drugs, beginning with

$40 and gradually working his way into more money. He

stated that from "Boss Man" he had purchased one-quarter

ounce of crack on one occasion; one-half ounce on one occasion; one ounce on more than five occasions; one ounce plus

21 grams on more than five occasions; and two ounces (which

were "cooked back" into four ounces) on one occasion. He

4 UNITED STATES v. EDMONDS
stated that from "Matt" he had purchased two ounces of powder cocaine on two occasions and that on each occasion he

cooked the two ounces of powder into three ounces of crack.

He stated that from Corey Bullock he had purchased one

ounce of powder cocaine and from Marquis McCaven, "a

gram or two at a time," but "no more than [3.5 grams]."

Finally, Edmonds stated that he recalled selling "a gram or

more" to Ricardo Smith on more than five occasions.

At trial, witnesses corroborated several aspects of

Edmonds’ confession. Atkinson testified not only to the controlled purchases but also to purchasing one-half ounce and

full ounce amounts of crack cocaine from Edmonds prior to

the controlled purchases. Indeed, Atkinson testified that

Edmonds taught him how to cook powder cocaine into crack

cocaine. Atkinson also stated that he, too, had engaged in

drug transactions with Marquis McCaven, lending support to

Edmonds’ claim to have purchased drugs periodically from

McCaven. Also at trial, Edmonds’ former girlfriend, Aisha

Christian, testified that based on her conversations with

Edmonds, she knew that "he was making his money from selling drugs."

A jury convicted Edmonds of one count of conspiracy to

distribute and to possess with intent to distribute over 50

grams of crack cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1), and three counts for distributing over five grams of

crack cocaine on the dates of the controlled purchases, in violation of § 841(a)(1).

The district court sentenced Edmonds to a mandatory life

sentence for the conspiracy conviction and 360 months’

imprisonment for each of the distribution counts, with all sentences to be served concurrently.

This appeal followed.

UNITED STATES v. EDMONDS 5
II

Count 1 of the indictment, on which the jury convicted

Edmonds of conspiracy, charged that beginning in or about

January 2007 and continuing until on or about June 26, 2008,

Edmonds conspired with other unnamed persons "to distribute

and to possess with intent to distribute more than 50 grams of

cocaine base (crack)," in violation of 21 U.S.C. §§ 846 and

841(a)(1). Edmonds contends that the evidence before the

jury was insufficient to convict him of this count. He argues

first that the controlled drug transactions between him and

Atkinson could not establish a conspiracy because Atkinson,

as a government agent, lacked a genuine conspiratorial intent.

And as to the evidence of prior, noncontrolled transactions

with Atkinson, i.e., before Atkinson acted as a government

agent, he argues that the evidence supported only casual

buyer-seller transactions, not a conspiracy. Finally, he contends that the government was not entitled to rely on his confession because it was uncorroborated and therefore could

not, under Wong Sun v. United States, 371 U.S. 471 (1963),

and United States v. Stephens, 482 F.3d 669 (4th Cir. 2007),

be used to satisfy the government’s burden of proof.

The government argues that the evidence of the relationship

between Edmonds and Atkinson before Atkinson became a

government agent supported the conspiracy conviction. It also

relies on Edmonds’ confession, focusing mostly on the portions of his confession regarding his prior drug dealings with

Atkinson before Atkinson functioned as a cooperating government agent.

Of course, in evaluating the sufficiency of the evidence, we

take the evidence in the light most favorable to the government and determine whether any rational trier of fact could

conclude that it supported a finding of guilt beyond a reasonable doubt, in this case Edmonds’ guilt of conspiracy. See

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

banc).

6 UNITED STATES v. EDMONDS
"Conspiracy is an inchoate offense, the essence of which is

an agreement to commit an unlawful act." United States v.

Shabani, 513 U.S. 10, 16 (1994) (quoting Ianelli v. United

States, 420 U.S. 770, 777 (1975)). Thus, the crime of conspiracy "may exist and be punished whether or not the substantive

crime ensues." United States v. Jimenez Recio, 537 U.S. 270,

274 (2003) (quoting Salinas v. United States, 522 U.S. 52, 65

(1997)). Section 846 of Title 21, the crime of which Edmonds

was convicted, provides that any person who "conspires to

commit any offense defined in this subchapter [21 U.S.C.

§§ 801-904 (addressing controlled substances)] shall be subject to the same penalties as those prescribed for the offense"

that was the object of the conspiracy. As a crime distinct from

the object of the offense, conspiracy is proved by demonstrating an agreement or understanding by two or more persons to

commit the object offense.

Thus, if the object of the offense is the distribution through

a sale of cocaine, as prohibited in 21 U.S.C. § 841(a), a conspiracy to commit the distribution offense must involve an

agreement separate from the immediate distribution conduct

that is the object of the conspiracy. See, e.g., Jimenez Recio,

537 U.S. at 274 (noting that conspiracy and the object of a

conspiracy are "distinct evil[s]" (internal quotation marks

omitted)); United States v. Hackley, 662 F.3d 671, 679 (4th

Cir. 2011) (holding that proof of a simple buyer-seller relationship is insufficient to prove a drug distribution conspiracy). In this way, "distribution" under § 841 and "conspiracy"

under § 846 are distinct crimes. Therefore, when a person

sells cocaine to another, he "distributes" the cocaine, in violation of § 841(a). If, however, the transaction includes, in addition to the bare agreement inherent in the sale, an agreement

that the buyer will resell the cocaine in the marketplace, the

two participants to the distribution transaction have also "conspired" to the redistribution of the cocaine, a separate offense,

and therefore can be found guilty not only of the distribution

offense, in violation of § 841(a), but also of a conspiracy

offense, in violation of § 846.

UNITED STATES v. EDMONDS 7
To prove conspiracy, the government need not prove an

explicit agreement. It may rely upon indirect evidence from

which the conspiracy agreement may be inferred. Thus, we

have concluded that the amount of cocaine involved in the

distribution transaction, if sufficiently great, may indicate that

the parties have engaged in the distribution transaction with

an implicit agreement of further redistribution. See United

States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008). We

have also concluded that the regularity of individual distribution transactions may indicate the existence of a conspiracy to

traffic in cocaine generally and apart from any single transaction. See United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008). Similarly, a transaction involving a consignment

arrangement or the "fronting" of drugs indicates conspiracy to

engage in drug trafficking beyond the immediate distribution

transaction, as the consignment implies a credit agreement

that looks to further transactions to secure income to complete

the original transaction. See United States v. Hicks, 368 F.3d

801, 805 (7th Cir. 2004). Indeed, any agreement made in

addition to or beyond the bare buy-sell transaction may be

taken to infer a joint enterprise between the parties beyond the

simple distribution transaction and thereby support a finding

of conspiracy. For instance, such agreements might include an

agreement that the parties will become regular participants in

such transactions; that future transactions will involve particular prices or quantities; or that the parties will assist each

other in drug distribution activities involving customers, suppliers, territories, or the preparation of drugs for distribution.

In short, the mere evidence of a simple buy-sell transaction

is sufficient to prove a distribution violation under § 841, but

not conspiracy under § 846, because the buy-sell agreement,

while illegal in itself, is not an agreement to commit an

offense; it is the offense of distribution itself. See Hackley,

662 F.3d at 679 (noting that "evidence of a buyer-seller relationship, standing alone, is insufficient to support a conspiracy conviction"). But evidence of any understanding reached

as part of the buy-sell transaction that either party will engage

8 UNITED STATES v. EDMONDS
in or assist in further distribution is sufficient to prove both

a distribution violation and a conspiracy violation. See United

States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993); United

States v. Lechuga, 994 F.2d 346, 349-50 (7th Cir. 1993) (en

banc).

The crime of conspiracy, however, requires a genuine

agreement between two or more persons to commit a crime,

and an agreement between a defendant and a government

agent, who does not agree to commit another crime but is

engaging the defendant only to establish evidence of a crime,

does not provide evidence of a genuine agreement. See United

States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995) ("[A] defendant cannot be convicted for conspiring with a government

agent"). Thus, any agreement between the defendant and a

government agent cannot form the basis of a conspiracy violation.

In this case, therefore, whatever "agreement" Edmonds and

Atkinson might have reached during the controlled purchases

does not constitute evidence of conspiracy. But this does not

mean that statements made or acts done by Edmonds during

the controlled transactions could not be used as evidence of

a conspiracy between Edmonds and Atkinson before he was

a government agent and between Edmonds and others at any

time.

In his pretrial confession, given after being arrested,

Edmonds described his dealings and relationship with Atkinson before Atkinson made controlled purchases as a government agent, which indicated a joint enterprise between the

two and which were corroborated by trial testimony.

Edmonds confessed that, beginning in late 2007, he had sold

Atkinson two ounces of crack cocaine on two occasions; one

ounce on two occasions; one-half ounce on more than five

occasions; and one-quarter ounce on more than five occasions, for a total of over ten ounces of crack (or almost 300

grams). And at trial, Atkinson corroborated these ongoing

UNITED STATES v. EDMONDS 9
transactions, testifying that he purchased half-ounce and fullounce amounts of crack cocaine from Edmonds prior to the

controlled purchases. This course of dealing indicated more

than isolated transactions. And the broader arrangement was

confirmed by Atkinson’s testimony that Edmonds facilitated

their course of dealing by teaching Atkinson how to cook

powder cocaine into crack cocaine. Edmonds’ former girlfriend, Aisha Christian, also confirmed Edmonds’ precontrolled-purchase conduct, testifying at trial that she knew

that Edmonds was "making his money from selling drugs."

Edmonds’ statements made during the controlled purchases

also indicated a prior conspiratorial relationship between him

and Atkinson. During the February 6 controlled purchase,

when Atkinson expressed concern about whether Edmonds

was giving him the 14 grams of crack he had paid for,

Edmonds reassured him, "You know me," again implying an

ongoing course of dealing. And immediately after that transaction, Edmonds called Atkinson to say, "I got another one

you can get on face," which, as Atkinson explained at trial,

referred to a consignment arrangement in which Atkinson

would receive the drugs immediately and pay for them later.

Indeed, Atkinson testified at trial that he had entered into similar consignment arrangements with Edmonds prior to the

controlled purchases. And during the February 4 controlled

purchase, Edmonds told Atkinson that he was "trying to get

back to 425" (the price for a half-ounce) and that "if [he] can

get to a . . . big eight [one-eighth of a kilogram], [he is] gonna

stop cooking it like that [converting cocaine powder to crack

cocaine]." During all of the controlled transactions, Edmonds

demonstrated a trust in Atkinson as a person with whom he

had dealt regularly in the past by revealing his other drug

transactions and rejecting Atkinson’s offer to be introduced to

a stranger who would pay "terrible money" for drugs.

In sum, there was ample evidence that, not only did

Edmonds know that Atkinson intended to redistribute the

drugs he purchased, but Edmonds was part of an ongoing

10 UNITED STATES v. EDMONDS
agreement under which he would regularly act as a supplier

for Atkinson’s distribution operation. In light of this evidence,

we readily conclude that a rational jury could find Edmonds

guilty of participating in a conspiracy between him and Atkinson during the period that Atkinson was not making controlled purchases for the government.

III

In challenging his sentence of 360 months’ imprisonment

on each of the three distribution counts, Edmonds contends

that the district court inadequately considered the sentencing

factors contained in 18 U.S.C. § 3553(a). The record, however, belies his claim.

After calculating the appropriate sentencing range under

the Sentencing Guidelines, the district court considered

Edmonds’ childhood background, his health problems, his

responsibility to support his two children, his extensive criminal history, his unresponsiveness to "the leniency offered by

the state court system," and his "lack of significant employment," which was "indicative of being supported by criminal

means." Weighing these considerations and recognizing that

Edmonds already faced life imprisonment on the conspiracy

count, the court opted for a sentence of 360 months’ imprisonment on each distribution count, which was "at the low end

of the [Guidelines] range," and imposed those sentences to

run concurrently. We cannot conclude that this record supports Edmonds’ claim that the court did not adequately consider the § 3553(a) factors in reaching its sentencing decision.

Edmonds also contends that his sentence was improperly

enhanced under 21 U.S.C. § 841(b)(1)(A), which provides for

a mandatory life sentence for violations of § 841(a) when the

defendant has "two or more prior convictions for a felony

drug offense," and under U.S.S.G. § 4B1.1(a), which similarly

enhances the sentencing range of a defendant who has "two

prior felony convictions of . . . a controlled substance

UNITED STATES v. EDMONDS 11
offense." With respect to both the statute and the Guidelines,

a qualifying prior felony offense must be punishable by

imprisonment for a term exceeding one year. See 28 U.S.C.

§ 802(44); U.S.S.G. § 4B1.2(b). Edmonds concedes that one

of his prior convictions, for which he received a sentence of

11-14 months, was punishable by imprisonment for more than

one year. But he contends that the North Carolina drug trafficking conviction for which he received a sentence of 9-11

months did not qualify as a predicate offense, citing our decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc). What Edmonds fails to recognize, however,

is that the qualification of a prior conviction does not depend

on the sentence he actually received but on the maximum sentence that he could have received for his conviction.

With respect to both convictions, Edmonds had, under

North Carolina law, a prior record level of IV, and the offense

class for both offenses was determined to be Class H. Under

the North Carolina sentencing scheme, this record level and

class, without any showing of an aggravating factor, subjected

Edmonds to a presumptive minimum sentencing range of 9-11

months, see N.C. Gen. Stat. § 15A-1340.17(c) (2000), and a

maximum sentencing range of 11-14 months, see id. § 15A1340.17(d). See Simmons, 649 F.3d at 240. Because 14

months is the maximum that Edmonds presumptively could

have received, we conclude that both of Edmonds’ convictions were offenses that were "punishable by imprisonment

for more than one year" and therefore qualifying felony drug

offenses under 21 U.S.C. § 841(b)(1)(A) and U.S.S.G.

§ 4B1.1(a).

For the reasons given, Edmonds’ convictions and sentence

are

AFFIRMED.

12 UNITED STATES v. EDMONDS