PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4848

RONALD COLLINS,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 03-4895

RONALD COLLINS,

Defendant-Appellee. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-03-180)

Argued: September 30, 2004

Decided: March 2, 2005

Before MICHAEL and DUNCAN, Circuit Judges, and

Roger W. TITUS, United States District Judge for the

District of Maryland, sitting by designation.

Affirmed in part and vacated and remanded in part by published opinion. Judge Titus wrote the opinion, in which Judge Michael and Judge

Duncan joined. 

Rehearing granted, June 1, 2005
COUNSEL

ARGUED: Matthew Alan Wartel, Alexandria, Virginia, for

Appellant/Cross-appellee. Michael James Elston, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee/Cross-appellant. ON BRIEF: Paul

J. McNulty, United States Attorney, LeDora Knight, Assistant United

States Attorney, Alexandria, Virginia, for Appellee/Cross- appellant.

OPINION

TITUS, District Judge:

Ronald Collins appeals his conviction for unlawfully distributing

fifty (50) or more grams of a mixture containing a detectable amount

of cocaine in violation of 21 U.S.C. § 841(a)(1) and maintaining and

controlling a room or enclosure for the purpose of unlawfully storing,

distributing, and using a controlled substance in violation of 21

U.S.C. § 856(a)(2). Collins also appeals his sentence for the above

convictions. In addition, the Government cross-appeals, arguing that

the district court erroneously sentenced Collins. 

Collins was indicted for his role in a larger drug conspiracy. Some

of the members of that conspiracy testified against Collins at trial,

including his nephew, Lionel Kearse. The thrust of the case for the

defense was an attempt to discredit the various witnesses and informants who testified for the government. The jury, presumably finding

at least some of the informants credible, found Collins guilty on both

counts. 

In his appeal, Collins raises five issues. First, he argues that the

government attorney engaged in prosecutorial misconduct by making

an improper "vouching" statement during her rebuttal closing argument. Second, he argues that the Government made a late disclosure

of Brady material. Third, he argues that 21 U.S.C. § 841 is unconstitutional. Fourth, he argues that the district court gave improper jury

instructions. Fifth, he argues that, under Apprendi and Blakely, his

sentence is unconstitutional, as the facts used to sentence him were

2 UNITED STATES v. COLLINS
not determined by a jury beyond a reasonable doubt. Each of his

issues on appeal will be considered and disposed of seriatim. 

Improper Argument

Collins’ first argument on appeal is that the prosecuting attorney

made an improper statement during her rebuttal closing argument,

unconstitutionally tainting the outcome of the case. As this issue

raises a question of law, the appropriate standard of review is de novo.

United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996). The allegedly improper statement made by the prosecutor is as follows: 

That [plea] agreement is a contract between them [the cooperators] and the United States, which means that they have

certain functions, and we have certain functions. Their function is to tell the truth. Each witness who got up there said

that his job or responsibility was to tell the truth. 

The government is always seeking to determine whether

they are telling the truth, and we do not take lightly the fact

that we have an agreement with the defendant - with each

one of those witnesses where they are supposed to tell the

truth.

J.A. 505-06. As conceded at oral argument, it is not this entire soliloquy which is arguably inappropriate. The allegedly improper statement is the first sentence of the second paragraph, where the

prosecutor stated that the "government is always seeking to determine

whether [a cooperator is] telling the truth[.]" 

The question then presented is first, whether this statement constitutes improper vouching for the credibility of a witness and, if so,

whether those "remarks or conduct prejudicially affected [the Defendant’s] substantial rights so as to deprive him of a fair trial." United

States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). 

Collins argues, and the Government agrees, that "[i]t is impermissible for a prosecutor to indicate her personal belief in the credibility

of Government witnesses or to elicit one witness’ opinion that another

UNITED STATES v. COLLINS 3
witness has told the truth." United States v. Hayes, 322 F.3d 792, 800

(4th Cir. 2003) (citing United States v. Lewis, 10 F.3d 1086, 1089 (4th

Cir. 1993)); see also Berger v. United States, 295 U.S. 78, 88 (1935).

The disagreement between Collins and the Government arises from

each party’s interpretation of the aforementioned excerpt from the

prosecutor’s rebuttal closing argument. Collins contends that the

statement suggests to the jury that "the Government official was

checking to see whether the witnesses were telling the truth in accordance with their plea agreements." Appellant’s Brief at 19. The Government disputes this interpretation, arguing that the prosecutor was

merely focusing the jury’s attention on the terms of the plea agreement. Appellee’s Brief at 23-24. The district court, during the trial,

agreed with the Government’s interpretation, explaining to the parties

that "[i]t’s fair game for both sides to address [the credibility of the

witnesses]. What [the prosecutor] was doing, I think, was focusing to

raise attention on the plea agreement. . . . And that’s perfectly appropriate." J.A. 508. 

As could be expected considering the ubiquitous nature of cooperating witnesses in criminal trials, the issue of a prosecutor referring

to plea agreements at trial has been considered by most circuits. A

Tenth Circuit opinion very effectively delineated what comments are

appropriate and what comments are improper, explaining that

[p]resenting evidence on a witness’ obligation to testify

truthfully pursuant to an agreement with the government and

arguing that this gives the witness a strong motivation to tell

the truth is not, by itself, improper vouching. . . . Use of the

‘truthfulness’ portions of [a plea agreement] becomes

impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness’ testimony.

United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990) (citations omitted). Other circuits are in agreement with the Tenth. For

example, the Ninth Circuit cautioned that "[t]he prosecution may not

portray itself as a guarantor of truthfulness." United States v. Roberts,

618 F.2d 530, 537 (9th Cir. 1980). Nor may the Government "give

jurors the impression that the prosecutor is carefully monitoring the

testimony of the cooperating witness to make sure that the latter is not

4 UNITED STATES v. COLLINS
stretching the facts[.]" Id. at 536 (quoting United States v. ArroyoAngulo, 580 F.2d 1137, 1150 (2d Cir. 1978) (Friendly, J. concurring)). 

The relevant case from this Circuit is United States v. Henderson,

717 F.2d 135 (4th Cir. 1983) cert. denied 465 U.S. 1009 (1984). After

canvassing the views of other circuits, this Court adhered to the views

of the Seventh Circuit, expressed in United States v. Hedman, 630

F.2d 1184, 1198-99 (7th Cir. 1980) and United States v. Craig, 573

513, 519 (7th Cir. 1978) cert. denied 439 U.S. 820 (1978), and found

no improprieties in "permitting the government to introduce the terms

of [the cooperator’s] plea bargain during the government’s case in

chief." Henderson, 717 F.2d at 138. Henderson, however, is not

directly on point because the statement made in the current controversy was part of the prosecutor’s rebuttal closing argument, rather

than during the Government’s case in chief. The Government argues,

in effect, that there is no distinction between the two methods of

referring to the plea agreements. See Appellee’s Brief at 24. We disagree. 

By its own language, Henderson differentiates the current situation

from the introduction of the terms of a plea agreement on direct or redirect examination. In explaining why the Government did not

improperly draw attention to the plea agreement, this Court found relevant the fact that "Henderson ma[de] no claim that the prosecutor

made improper use of the plea bargain promise of truthfulness in closing argument." Henderson, 717 F.2d at 138. Thus, potentially prejudicial statements made during closing arguments required closer

scrutiny than the eliciting of information about the plea agreement

during the prosecutor’s case in chief. 

This distinction is an important one because the potential for

impermissible vouching is greater during an attorney’s soliloquy to

the jury than during an attorney’s interaction with a witness. In the

former posture the attorney has greater leeway to develop her own

thoughts and convey those concepts to the jury. Therefore, we do not

find Henderson to be directly on point. Rather, applying the rationale

of Bowie, Roberts and Arroyo-Angulo, we find the prosecutor’s argument in this case, at a stage when there is a heightened concern about

UNITED STATES v. COLLINS 5
impermissible vouching, either crossed the line, or, at best, was a

close call. 

However, regardless of the side of the line on which this statement

falls, we conclude that it did not "so infect[ ] the trial with unfairness

as to make the resulting conviction a denial of due process." Scheetz,

293 F.3d at 185 (citing United States v. Morsley, 64 F.3d 907, 913

(4th Cir. 1995)). Even if we were to find that the prosecutor’s statement implied that the government could insure the credibility of the

witness, "[s]uch impermissible vouching is not necessarily reversible

error." United States v. Hayes, 322 F.3d 792, 800 (4th Cir. 2003).

Rather, a court makes a reversible error determination on the basis of

four factors: "(1) the degree to which the comments could have misled the jury; (2) whether the comments were isolated or extensive; (3)

the strength of proof of guilt absent the inappropriate comments; and

(4) whether the comments were deliberately made to divert the jury’s

attention." United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.

1997) (citing United States v. Mitchell, 1 F.3d 235, 241 (4th Cir.

1993); United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)). 

First, it is unlikely, considering the overall context in which the

statement was made, that the prosecutor’s statement misled the jury.

As this Court found relevant in Henderson, "[t]he trial judge

instructed the jury on the caution necessary in evaluating testimony

given pursuant to a plea bargain." Henderson, 717 F.2d at 138. A

curative instruction, as indicated in Henderson, prevents the misleading of the jury. An instruction similar to the one given in Henderson

was given to the jury in this case after the allegedly improper statement, thus effectively sanitizing any potential vouching concern. See

Transcript of Closing Argument at 434-39 (The relevant instructions

given to the jury were as follows: "You are the sole judges of the

credibility of each of the witnesses called to testify. . . . [T]here has

been testimony from several government witnesses who plead guilty

after entering into an agreement with the government to testify. . . .

You in turn may accept the testimony of such a witness . . . however,

you should bear in mind that a witness who has entered into such an

agreement has an interest in this case different than any ordinary witness. . . . [T]he testimony of a witness who has been promised that

the witness will not be prosecuted should be examined by you with

greater care than the testimony of an ordinary witness. You should

6 UNITED STATES v. COLLINS
scrutinize such testimony closely to determine whether or not it is colored in such a way as to place guilt upon the defendant in order to

further the witness’s own interests[.]"). These instructions, coming

immediately following the allegedly improper vouching by the prosecutor, clearly eliminated any prejudice to Collins. Thus, the first Sanchez factor must be resolved in favor of the Government. 

The second Sanchez factor strongly militates against a finding of

reversible error. As distilled at oral argument, the problematic statement was actually only one clause of a sentence in the middle of the

rebuttal closing argument. As noted above, not only was the statement

sufficiently sanitized by the district court’s subsequent jury instruction, it was also an isolated, rather than pervasive or extensive, comment. 

With regard to the third Sanchez factor, Collins asserts that the

Government’s case was centered around the cooperating witnesses

who signed plea agreements. Appellant’s Brief at 21; see also J.A. 81,

347 (listing the witnesses, eight of whom signed plea agreements with

the Government or were promised immunity). Therefore, Collins

argues, this factor weighs in favor of a finding of prosecutorial misconduct because the jury’s verdict was primarily based on a credibility determination of those witnesses, allegedly buttressed by the

improper statement in the Government’s rebuttal closing argument.

Collins is correct that much of the evidence presented was the testimony of cooperating witnesses. See Appellant’s Brief at 4 ("[T]he

Government relied entirely upon historical information from cooperating witnesses[.]"). The Court also agrees with Collins that if vouching did occur, then it improperly buttressed the credibility of all

cooperating witnesses. Considering the Government’s reliance on testimony from numerous cooperating witnesses, it is clear that if those

witnesses were not deemed credible by the jury, then the Government’s case would have been weaker. Accordingly, this factor, as

Collins contends, does weigh towards a finding of reversible error. 

Finally, the fourth Sanchez factor militates against a finding of

reversible error. Nothing in the record suggests that the comments

were "deliberately made to divert the jury’s attention," and the Defendant does not so contend. 

UNITED STATES v. COLLINS 7
Considering all the factors enunciated in Sanchez, even accepting

Collins’ argument that the third factor weighs towards a finding of

prosecutorial misconduct, we conclude that it is outweighed by the

other three factors, leading to the conclusion that there was no reversible error. 

Late Disclosure of Brady Evidence

Collins’ next argument for a reversal of the conviction is an alleged

violation of the Brady doctrine. Brady held that "the suppression by

the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court

later "held that the duty to disclose such evidence is applicable even

though there has been no request by the accused[.]" Strickler v.

Greene, 527 U.S. 263, 280 (1999)(citing United States v. Agurs, 427

U.S. 97, 107 (1976)). Collins moved to dismiss the charges against

him, arguing that the Government had disclosed the identities of nontestifying confidential informants only a few days prior to commencement of the trial, even though he requested this information a month

before the trial. As a result, Collins could locate only two of the six

confidential sources, and he contends that this "falls within the ambit

of Brady." Appellant’s Brief at 23. For two reasons, we cannot agree.

First, "evidence is ‘material’ under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a

‘reasonable probability’ that had the evidence been disclosed the

result at trial would have been different." Wood v. Bartholomew, 516

U.S. 1, 5 (1995) (citing Kyles v. Whitley, 514 U.S. 419, 433-34

(1995)). Considering the record, no such reasonable probability exists

in this case. There is nothing to support Collins’ assertion that these

informants would have produced exculpatory information. Indeed,

from a reading of the record, his counsel’s assertions could be interpreted to suggest that these informants would not produce evidence

favorable to him. See J.A. at 72-74 (defense counsel proffering that

"these witnesses do not mention Mr. Collins. . . . [T]hese are witnesses that came forward and provided information to the police that

never mentioned my client. They described who was involved in the

conspiracy."). In short, we agree with the district court that "[t]here

8 UNITED STATES v. COLLINS
are probably hundreds of people who could" testify that they purchased drugs from an individual other than Collins. Id. Second, we

agree with the district court that "a motion to dismiss is not the proper

vehicle [for a late Brady disclosure]. At best, a motion to get more

time to talk to these people." Id. at 71. No such motion was made.

Collins’ motion sought dismissal of the charges, and, when his motion

was denied, he did not seek a continuance.

Unconstitutionality of 21 U.S.C. § 841

Collins argues that, pursuant to Apprendi v. New Jersey, 530 U.S.

466 (2000), the penalty provisions of 21 U.S.C. § 8411 are unconstitutional and, because they cannot be severed from the remainder of the

statute, the entire state is facially invalid. This argument is foreclosed

by United States v. McAllister, 272 F.3d 228 (4th Cir. 2001), where

this Court unambiguously concluded that "Apprendi does not render

§ 841 facially unconstitutional[.]" Id. at 234. "A decision of a panel

of this court becomes the law of the circuit and is binding on other

panels unless it is overruled by a subsequent en banc opinion of this

court or a superseding contrary decision of the Supreme Court."

Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993).

Therefore, Collins cannot succeed on his claim that 21 U.S.C. § 841

is unconstitutional.

Jury Charge Regarding Drug Quantity

During the jury deliberations, the district court instructed the jury

that "[t]he amount of drugs applies to the entire group of conspirators.

In other words, it’s a conspiracy to distribute 50 grams or more of

crack cocaine. That’s what the charge is. So the amount applies to the

conspiracy, to the group." J.A. 533. Collins argues that because the

district court did not require the jury to find that the drug activity of

the conspiracy was reasonably foreseeable to him, the instruction was

1

21 U.S.C. § 841(b) prescribes the penalties for manufacturing, distributing, or dispensing controlled substances; or possessing controlled substances with the intent to engage in the above activities. This subsection

determines the length of incarceration for a violation by considering both

the type of controlled substance and the weight of the substance. 

UNITED STATES v. COLLINS 9
in violation of Pinkerton. See Pinkerton v. United States, 328 U.S.

640 (1946). 

According to Fourth Circuit case law, "we review the district

court’s decision to omit the ‘reasonably foreseeable’ language from

its Pinkerton instruction for an abuse of discretion." United States v.

Aramony, 88 F.3d 1369, 1380 (4th Cir. 1996). This Circuit, in Aramony and in United States v. Chorman, 910 F.2d 102 (4th Cir. 1990),

found that "a Pinkerton instruction that omitted the ‘reasonably foreseeable’ language [was] correct[.]" Aramony, 88 F.3d at 1381. In this

case, however, the district court omitted both the "reasonably foreseeable" language and instructions directing the jury that they may only

find Collins responsible for the acts of co-conspirators if those acts

occurred during, and in furtherance of, the conspiracy. Therefore, reliance on Chorman and Aramony is misplaced. Nevertheless, this omission was harmless because a jury could have reasonably concluded

that the evidence adduced at trial was sufficient to hold Collins personally liable for the distribution of more than 50 grams of crack

cocaine. See J.A. at 160 (direct testimony of Mr. Kearse explaining

Collins’s sales of crack cocaine purchased from New York).

Constitutionality of Sentencing Guidelines

Collins makes another argument based on Apprendi and, in his supplemental brief, contends that Blakely v. Washington, 124 S. Ct. 2531

(2004) offers further support for his position. Defendant argues that

any factor that increases the Sentencing Guidelines range must be

submitted to a jury and proved beyond a reasonable doubt. 

Subsequent to the oral argument in this case, the Supreme Court

issued a decision in United States v. Booker, No. 04-104, 2005 WL

50108 (U.S. Jan. 12, 2005) which directly implicates Collins’ argument. In Booker, a majority of the Court determined that the mandatory Sentencing Guidelines regime, which allowed a judge to make

findings of fact that could increase a sentence beyond the maximum

amount based on the facts found by a jury at trial, violates the Sixth

Amendment. Booker, No. 04-104, Justice Stevens’ Opinion of the

Court. 

After arriving at this conclusion, the Supreme Court then determined the appropriate remedy. Rather than engrafting onto the exist10 UNITED STATES v. COLLINS
ing system the requirement that all facts that increase an individual’s

sentence be submitted to a jury and proved beyond a reasonable

doubt, the Court held that Congress’ intention would be furthered by

making the Guidelines system advisory. Id. Justice Breyer’s Opinion

for the Court at 3, 5-6.B Because Collins specifically sought to preserve his right to argue the unconstitutionality of his sentence, anticipating the Supreme Court’s decision in Booker, we will now consider

the validity of the district court’s sentence in light of this new precedent. 

This Court has already had occasion to consider a direct appeal

raising Booker issues and has now articulated the manner in which

this Circuit will handle the interplay between Justice Stevens’ Opinion on the merits and Justice Breyer’s Opinion on the proper remedy.

In United States v. Hughes, No. 03-4172 (4th Cir. January 24, 2005)

this Court dealt with the issue, now facing all courts of appeal, of the

validity of a sentence issued by a district court under the old sentencing regime (mandatory use of the Guidelines). As succinctly stated in

Hughes, Justice Breyer’s Opinion for the Court determined that "Congress would have preferred a solution that rendered the guidelines

advisory and restored discretion to courts to impose sentences within

the range prescribed by the statutes of conviction, as long as those

sentences are reasonable." Hughes, slip op. at 6 (citations omitted).

Therefore, "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when

sentencing . . . [and] [t]he courts of appeals review [those] sentencing

decisions for unreasonableness." Booker, Justice Breyer’s Opinion for

the Court at 21-22. 

This mandate from the Supreme Court presents the courts of appeal

with two options: decide whether a district court’s sentence, under the

old regime, was reasonable, or remand the case and direct the district

court to resentence the Defendant in accordance with Booker. In

Hughes, this Court emphatically chose the second option, holding that

"to leave standing [the] sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy ‘the fairness,

integrity or public reputation of judicial proceedings.’" Hughes, slip

op. at 10 (citing United States v. Hastings, 134 F.3d 235, 239 (4th Cir.

1998)). Hughes further elaborated on the need to remand cases

UNITED STATES v. COLLINS 11
involving sentences issued pursuant to the mandatory Guidelines,

explaining that 

a sentence has yet to be imposed under a regime in which

the guidelines are treated as advisory. To leave standing this

sentence simply because it may happen to fall within the

range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings.

Indeed, the determination of reasonableness depends not

only on an evaluation of the actual sentence imposed but

also the method employed in determining it. 

Hughes, slip op. at 10 n.8. Thus, because we "simply d[id] not know

how the district court would have sentenced [the defendant] had it

been operating under the regime established by Booker[,]" id. at 15

n.8, the sentence was vacated and remanded for resentencing. Id. at

17. 

In this case, the Superseding Indictment charged Collins with

knowingly, intentionally, and unlawfully distributing fifty (50) grams

or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). J.A.

15. The jury entered a verdict of guilty on that charge. J.A. 519, 534-

35. The sentencing provision of § 841 provides that an individual who

is found to be in violation of § 841(a) involving fifty (50) grams or

more of crack cocaine shall be sentenced to a minimum of ten (10)

years and a maximum of life, assuming that no death or serious bodily

injury results from the defendant’s involvement with the controlled

substance. 21 U.S.C. § 841(b). The relevant Sentencing Guideline, for

a violation of 21 U.S.C. § 841(a)(1) involving fifty (50) grams of

crack cocaine, sets forth an Offense Level of 32. United States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(4) (2004).2

Based on an Offense Level of 32, and a Criminal History Category

of I, the Guideline range would be 121-151 months. 

The district court did not, however, apply a Guideline range of

121-151 months. Instead, the district court agreed with the presen2The sentencing in this case occurred on October 24, 2003. The 2003

Sentencing Guidelines also set forth an offense level of 32 for a violation

of § 841(a)(1) involving fifty (50) grams of crack cocaine. 

12 UNITED STATES v. COLLINS
tence report which calculated the Offense Level as 34. J.A. 573-75.

The presentence report, prepared by an officer in the United States

Probation Office, explained that Collins was being held responsible

for the distribution of 349.9 grams of crack cocaine. J.A. 599. This

finding led Probation to recommend an Offense Level of 34 (a Guideline range of 151-188 months), which is what the Guidelines require

for violations of § 841(a) where the Defendant is deemed responsible

for 150 to 500 grams of crack cocaine. The district court, although not

explicitly stated in the record, adopted the presentence report and sentenced Collins to 151 months. J.A. 578-79. Thus, it was the district

court, not the jury, that found Collins to be responsible for 349.9

grams of crack cocaine. Pursuant to Apprendi, Blakely, and now

Booker, Collins argues that this sentence should be set aside because

the district court made a finding of fact that resulted in a longer sentence than the maximum authorized by the facts found by the jury

alone. See Booker, Opinion of Justice Stevens at 20.3

Following the precedent set in Hughes, Collins is correct. Collins’

sentence, because it was determined by a district court under the preBooker sentencing regime, must be vacated and remanded for sentencing consistent with this opinion.4

3

In fact, this case is factually analogous to the situation in Booker. In

both cases, the Defendant was charged with a violation of § 841(a)(1)

and found guilty on this count. Due to findings by the district court, however, both Booker and Collins received Offense Levels which are

reserved for involvement with at least 500 grams of crack cocaine and

150 grams of crack cocaine respectively. Booker, Opinion of Justice Stevens at 2-3, 10-11 (explaining that the district judge found Booker to

possess an additional 566 grams of crack cocaine, garnering an Offense

Level of 36 and, with a Criminal History Category of VI, changing the

guideline range from 210-262 months to 360 months to life). 

4

In addition to the various issues appealed by Collins, the Government

cross-appealed the district court’s determination of Collins’ criminal history category. While the criminal history determination of the district

court is open to question in light of the presumption of regularity, Parke

v. Raley, 506 U.S. 20, 30-31 (1992), and its application in United States

v. Gray, 177 F.3d 86, 90-91 (1st Cir. 1999), we need not reach the issue

because, following Booker and Hughes, the sentence in its entirety is

vacated and remanded. 

UNITED STATES v. COLLINS 13
AFFIRMED IN PART AND VACATED

AND REMANDED IN PART

14 UNITED STATES v. COLLINS