UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4863

LEVI JOHNSON, a/k/a Vi,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4007

STOVER STOCKTON, a/k/a Big Ox,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CR-99-352-MJG)

Argued: June 3, 2003

Decided: July 30, 2003

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Melissa Maynard Moore, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Baltimore, Maryland; Gary Ticknor, Elkridge,
Maryland, for Appellants. James G. Warwick, Assistant United States

Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James

Wyda, Federal Public Defender, Gary Christopher, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellants. Thomas M. DiBiagio, United States Attorney, Steven H. Levin,

Assistant United States Attorney, Andrea L. Smith, 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Unpublished opinions are not binding precedent in this circuit.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: 

Stover Stockton and Levi Johnson were tried together and convicted by a jury of conspiracy to sell and distribute heroin. They

appeal their convictions and sentences, raising several issues. Because

we find no reversible error, we affirm. 

I.

Stover Stockton and Levi Johnson were indicted for conspiracy to

sell and distribute heroin in Baltimore, Maryland, between 1994 and

April 2000. They were also indicted for conspiracy to murder a U.S.

District Judge and a U.S. Attorney. Their two co-defendants pled

guilty before trial to the drug conspiracy count. During a month-long

jury trial in the District of Maryland, the government introduced evidence about local drug dealers’ use of vials with different colored

caps as a branding device of sorts. Stockton primarily sold heroin

known as "red and white." Johnson sold "yellow and white." However, there is evidence, discussed below, that Stockton and Johnson

worked together at times. Both Stockton and Johnson were convicted

of the drug conspiracy, but the jury was unable to reach a verdict on

the two murder conspiracy charges. 

2 UNITED STATES v. JOHNSON
At sentencing the district court concluded that Stockton was subject to a two-level increase in his offense level for firearm possession,

U.S.S.G. § 2D1.1(b)(1), a two-level increase for causing significant

physical injury, § 5K2.2, and a two-level increase for his role in the

conspiracy, § 3B1.1(c). Given Stockton’s base offense level of 36, see

§ 2D1.1(a)(3); § 2D1.1(c)(2), his overall offense level was 42. At this

offense level the sentencing range is 360 months to life regardless of

the defendant’s criminal history category; as a result, the district court

declined to resolve a dispute over Stockton’s criminal history. The

court sentenced Stockton to 390 months. 

Johnson began with the same base offense level, 36. § 2D1.1(c)(2).

He also received a two-level increase for firearm possession.

§ 2D1.1(b)(1). Based on evidence that Johnson committed a murder

as part of the conspiracy, the court raised his offense level to 43, pursuant to § 2D1.1(d)(1)’s cross reference to § 2A1.1 for drug crimes

involving murder. Finally, the court added a four-level increase

because of Johnson’s leadership role in the conspiracy. § 3B1.1(a).

His overall offense level, therefore, was 47. Because the minimum

sentence for this offense level is life, regardless of the defendant’s

criminal history category, the court also declined to make a specific

finding about Johnson’s criminal history. As required by the guidelines, the court sentenced Johnson to life in prison. 

II.

Stockton raises several challenges to both his conviction and sentence. We will address each in turn. 

A.

Stockton first argues that although he was a member of a drug conspiracy, he was not a member of the one charged in the indictment

and found to exist by the jury. He says he was part of a conspiracy

to sell drugs under the "red and white" brand, while Johnson was selling drugs under the "yellow and white" brand. For this reason, he

claims that the government’s evidence was insufficient to connect

him to the primary yellow and white conspiracy. 

UNITED STATES v. JOHNSON 3
The government must prove that each defendant was connected to

the conspiracy beyond a reasonable doubt, but the connection does

not need to be extensive. See United States v. Strickland, 245 F.3d

368, 385 (4th Cir. 2001); United States v. Wilson, 135 F.3d 291, 306

(4th Cir. 1998); United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc). The record shows that Stockton and Johnson were

seen together in a house with drug paraphernalia, that they were seen

together on a street corner where members of the yellow and white

conspiracy were selling drugs, that they sold drugs on the same corner, that they pooled their money to buy drugs in New York, and that

they worked together to mete out discipline. This is sufficient evidence from which a reasonable jury could find that Stockton was in

a drug conspiracy with Levi Johnson. See, e.g., United States v.

Banks, 10 F.3d 1044, 1055-56 (4th Cir. 1993). 

B.

Stockton next argues that the district court erred by refusing to give

his requested jury instruction on multiple conspiracies. We review

jury instructions to determine whether any errors in instruction are

prejudicial based on the record as a whole. United States v. Ellis, 121

F.3d 908, 923 (4th Cir. 1997). The judgment is not subject to reversal

if, given the full context of the trial, "the charge was not misleading

and contained an adequate statement of the law to guide the jury’s

determination." United States v. United Med. & Surgical Supply

Corp., 989 F.2d 1390, 1406-07 (4th Cir. 1993) (quoting United States

v. Park, 421 U.S. 658, 675 (1975)). A trial court’s refusal to give a

defendant’s requested instruction is reversible error if the instruction:

(1) was correct; (2) was not substantially addressed by the court’s

instructions; and (3) dealt with an issue "so important[ ] that failure

to give the requested instruction seriously impaired the defendant’s

ability to conduct his defense." United States v. Lewis, 53 F.3d 29, 32

(4th Cir. 1995) (internal quotation marks omitted). 

Stockton requested a specific instruction on multiple conspiracies.

The district court instructed the jury on multiple conspiracies, but

used language different than that requested by Stockton. As part of its

instruction the court said that the jury could find Stockton guilty of

conspiracy if the evidence established beyond a reasonable doubt that

"at some time, even if just one time, [he] knowingly and intentionally

4 UNITED STATES v. JOHNSON
joined with others to accomplish the objective of selling yellow and

white brand heroin." As noted above, the circumstances linking

Stockton to the conspiracy need not have been extensive. See, e.g.,

Strickland, 245 F.3d at 385. Moreover, the evidence in this case demonstrated that Stockton cooperated with Johnson on many occasions.

The court’s conspiracy instructions, therefore, were not prejudicial in

light of the record as a whole. See Ellis, 121 F.3d at 923. 

C.

Stockton also claims that the district court erred in admitting evidence of a shooting that was arguably outside the time frame of the

conspiracy. The court allowed testimony by another prominent member of the conspiracy, Hayes, that he shot someone named Jamal on

January 1, 1994. This shooting was within the time frame of the conspiracy since the conspiracy was alleged to have begun in 1994.

Hayes went on to testify, however, that the reason he shot Jamal was

that Jamal was going to testify against Stockton about a shooting that

happened well before the 1994 start of the conspiracy. Stockton says

the testimony about the reason for the shooting was evidence of a

prior bad act that should have been excluded because it was substantially more prejudicial than probative. 

We review the district court’s evidentiary ruling for abuse of discretion. United States v. Hernandez, 975 F.2d 1035, 1038 (4th Cir.

1992). Moreover, any error is subject to a harmless error analysis; we

must consider whether "it is probable that the error could have

affected the verdict reached by the particular jury in the particular circumstances of the trial." Id. at 1041 (internal quotation marks omitted). The admissible evidence introduced about Stockton’s drug

activities and his acts of violence, including his involvement in the

planning of a murder, was extensive. As a result, even if the district

court erred in admitting evidence connecting Stockton to a shooting

that occurred before the start of the conspiracy, we conclude that it

is improbable that this item of evidence affected the jury’s verdict. 

D.

Stockton also argues that the district court erred in allowing the

prosecution to refresh a witness’s recollection on two occasions. In

UNITED STATES v. JOHNSON 5
neither instance, Stockton argues, had the witness forgotten the

answer to the question. Both instances involved the prosecution’s

questioning of Azure Johnson. 

First, the prosecutor asked Azure Johnson about the events surrounding threats Levi Johnson made against Azure’s boyfriend. The

prosecutor asked Azure whom she had seen in the car with Levi Johnson when he made the threats. Azure Johnson testified that she was

"not sure" because the car’s windows were tinted and she therefore

could only see Levi Johnson. The court allowed the prosecution to

"refresh" her memory, and she then testified that three other people,

including Stockton, were in the car with Levi Johnson when he was

discussing threats to assault her boyfriend. 

A witness’s recollection may be refreshed when she has forgotten

something, but her memory cannot be refreshed about something she

could not have known or seen. Cf. United States v. Morlang, 531 F.2d

183, 191 (4th Cir. 1975) (requiring that the witness’s recollection be

exhausted before it is refreshed). Here, Azure Johnson testified that

she could not see who was in the car, not that she did not remember

who was in the car. However, even if permitting the prosecutor to

refresh her recollection was an abuse of the district court’s discretion,

it was not prejudicial and therefore not reversible error. Cf. United

States v. Socony-Vacuum Oil Co., 310 U.S. 150, 235 (1940). As noted

above, other evidence links Johnson and Stockton together and suggests that they worked together to commit acts of violence. In light

of this other evidence, Azure Johnson’s ultimate testimony that Stockton was in the car with Levi Johnson when he threatened her boyfriend is unlikely to have affected the verdict. Hernandez, 975 F.2d

at 1041. 

Second, Stockton claims as error another line of questioning

involving Azure Johnson. She initially testified that she had never had

any interaction with Stockton. A few minutes later, however, the

prosecution asked her if she recalled any interactions with Stockton.

Without waiting for her to respond (and with the court’s permission),

the prosecution began to refresh her recollection. Stockton again

argues that her memory was not sufficiently exhausted before the

prosecutor began to refresh her recollection. The context of the first

question, however, is unclear and may have been understood by

6 UNITED STATES v. JOHNSON
Azure Johnson and the court to refer only to whether Azure had interacted with Stockton at a particular time. The district court, with a

closer view of the events at trial, had a better understanding of the

witness’s and the prosecution’s meanings and whether the witness

appeared to have exhausted her recollection of events. We cannot say,

therefore, that the district court abused its discretion by allowing the

prosecution to refresh Azure’s memory during a separate, if related,

line of questioning about Stockton. 

E.

We turn next to Stockton’s challenges to his sentence. We review

the district court’s factual findings at sentencing for clear error, and

we review its legal interpretation of the Sentencing Guidelines de

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

1.

Stockton argues that the court failed to conduct the individualized

assessment required to determine the quantity of drugs attributable to

him at sentencing. See United States v. Irvin, 2 F.3d 72, 78 (4th Cir.

1993). The sentencing guidelines provide that a defendant who is part

of joint criminal activity is responsible for "all reasonably foreseeable

acts and omissions" of the activity. U.S.S.G. § 1B1.3(a)(1)(B). The

commentary explains that the defendant is responsible for the quantity

of drugs "with which he was directly involved" and "all reasonably

foreseeable quantities of contraband that were within the scope of the

criminal activity that he jointly undertook." U.S.S.G. § 1B1.3 cmt.

n.2. This means that the district court must find the quantity of drugs

that was a foreseeable part of the conspiracy (to the defendant) and

must find that the conduct of others involving this quantity of drugs

furthered the activity the defendant agreed to undertake. Banks, 10

F.3d at 1056-57. 

The district court was quite clear on the findings it was required to

make, and it made the requisite findings for Stockton. The court

clearly found that the full quantity of drugs was foreseeable to Stockton. J.A. 1791 (noting that Stockton was "well aware of the full scope

of the enterprise which he joined and assisted"). The court also found

that the conduct of other participants was in furtherance of the joint

UNITED STATES v. JOHNSON 7
criminal activity to which Stockton consented. See id. (finding that

Stockton was "intimately involved with the operation"); see also J.A.

1788 ("Stockton affirmatively acted with, and as part of, the ‘Yellow

and White’ operation.") The district court therefore made the appropriate findings. Moreover, the court did so after fully considering

Stockton’s claim that he was a member of a separate conspiracy. The

court rejected this claim, finding that Stockton was significantly

involved in the yellow and white conspiracy. We cannot say that these

findings are clearly erroneous. See Banks, 10 F.3d at 1057. 

2.

Stockton argues that the district court erred in giving him a twolevel enhancement pursuant to U.S.S.G. § 3B1.1(c) for having a leadership role. The district court found that Stockton did not have a leadership role in the overall conspiracy, but found that he did have a

leadership role in a "subsidiary related operation." At the government’s request, the court later explained this seemingly contradictory

finding, analogizing Stockton’s group to a corporate subsidiary under

the same umbrella as the primary yellow and white group. The court

thus found that Stockton was in fact a leader, but a leader of a subset

of the overall conspiracy. These findings by the district court are not

clearly erroneous. See Banks, 10 F.3d at 1057. 

3.

Finally, Stockton argues that he should have received a downward

adjustment under § 3B1.2 for having only a minor role in the conspiracy. The district court swiftly rejected this contention, finding that

Stockton "was a significant participant" in the conspiracy. To qualify

for a minor role adjustment, Stockton was required to show that he

was "substantially less culpable than the average participant."

U.S.S.G. § 3B1.2 cmt. n.3. Stockton presented no evidence to satisfy

this requirement. The district court’s finding that Stockton was a significant participant in the conspiracy is not clearly erroneous. See

Banks, 10 F.3d at 1057. 

III.

Levi Johnson appeals his conviction and sentence on two grounds.

First, he argues that his trial should have been severed from that of

8 UNITED STATES v. JOHNSON
Stover Stockton. Second, he says that he should not have received the

cross-referenced sentence enhancement for murder. 

A.

We first address the district court’s denial of Johnson’s motion for

severance. We review the denial of a motion to sever under Rule 14

for abuse of discretion. United States v. Najjar, 300 F.3d 466, 473

(4th Cir. 2002). Joinder is favored in conspiracy cases. United States

v. Tedder, 801 F.2d 1437, 1450 (4th Cir. 1986). To demonstrate that

the district court erred in denying his motion for severance, Johnson

must show actual prejudice from having his case tried with Stockton’s. Najjar, 300 F.3d at 473. Johnson, however, points to no actual

prejudice. He provides no reason for us to believe that he would not

have been convicted of a drug conspiracy if he had been tried separately from Stockton. We conclude, therefore, that the district court

did not abuse its discretion in denying Johnson’s motion for severance. 

B.

Lastly, we consider Johnson’s argument that the cross-reference to

murder raised his sentence so much that he is being unfairly punished

for a crime of which he was not convicted. His "real complaint is that

he was, in effect, tried and sentenced for first degree murder without

the benefit of a jury." United States v. Carter, 300 F.3d 415, 427 (4th

Cir. 2002) (internal quotation marks omitted); Appellants’ Br. at 54

(quoting Carter). If Johnson is correct, this would be a violation of

due process. 

We have said, however, that cross-references in the Sentencing

Guidelines do not raise due process problems. See, e.g., Carter, 300

F.3d at 427 (noting that "this method of ‘real offense’ sentencing does

not offend the Constitution") (internal quotation marks omitted).

Moreover, the Supreme Court has allowed sentencing enhancements

based on activity that formed the basis for charges of which the defendant was actually acquitted. United States v. Watts, 519 U.S. 148,

153-54 (1997). And while the Supreme Court has noted that in some

cases the enhancement might so dramatically increase the sentence

that some additional protections might be warranted, see Watts, 519

UNITED STATES v. JOHNSON 9
U.S. at 156-57, this is not such a case. The district court determined

at sentencing that even without the murder cross-reference, Johnson’s

offense level would have been 44. That offense level also carries a

mandatory sentence of life imprisonment. We therefore find no due

process violation in Johnson’s case from the sentence enhancement

pursuant to the murder cross-reference. 

IV.

For the foregoing reasons, we affirm the convictions and sentences

of Stockton and Johnson. 

AFFIRMED

10 UNITED STATES v. JOHNSON