United States Court of Appeals

For the Eighth Circuit

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No. 15-1236

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Andre Taylor

lllllllllllllllllllll Defendant - Appellant

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No. 15-2269

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Victor Vickers

lllllllllllllllllllll Defendant - Appellant

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Appeals from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: January 13, 2016

 Filed: February 24, 2016

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Before MURPHY, SMITH, and BENTON, Circuit Judges.

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MURPHY, Circuit Judge.

A jury convicted Andre Taylor of two counts charging distribution of cocaine

and marijuana and two counts based on a murder for hire conspiracy. The jury also

convicted Victor Vickers of conspiracy to distribute marijuana. Taylor and Vickers

each appeal. We affirm their convictions but remand Vickers' case for resentencing.

I.

Of the twenty defendants charged in the indictment,fifteen entered guilty pleas,

two are fugitives, and three, including Taylor and Vickers, proceeded to trial. Taylor

and Vickers were each charged with one count of conspiracy to distribute 1,000

kilograms or more of marijuana or 5 kilograms or more of cocaine. See 21 U.S.C.

§§ 841(a)–(b), 846. Taylor was also charged with one count of aiding and abetting the

distribution of cocaine, one count of conspiracy to commit murder for hire, and one

count of possession of a machine gun in furtherance of a crime of violence. See id.

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§ 841(a)–(b); 18 U.S.C. §§ 958, 924(c)(1)(B)(ii). The evidence at trial established the

following record relating to these counts.

Taylor was also indicted on an additional count of aiding and abetting the

1

distribution of cocaine which was dismissed on the government's motion.

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A.

Robert Taylor pled guilty to the drug distribution conspiracy and then testified.

He explained that he had introduced Andre Taylor toCharlie "Mike" Williams, a drug

dealer in Mexico who later became Andre Taylor's supplier. Williams had agreed

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to supply large quantities of marijuana and cocaine to Taylor who planned to sell

them in Kansas City and then forward payment to Williams. Taylor hired a team of

driversto transport the drugs to Kansas City in trailersfilled with inoperative "dummy"

equipment which concealed large loads of drugs hidden beneath the floorboards.

Witnessestestified that up to 27 kilograms of cocaine and 800 pounds ofmarijuana were

sent in each shipment. Driver Ruben Machiche testified that he had personally

transported thousands of pounds of marijuana for Taylor. Allen Sanchez, who had

supervised the drivers, testified that he had overseen the delivery of over 100 kilograms

of cocaine and between 8,000 and 9,000 pounds ofmarijuana toKansasCity. According

to Sanchez, he sent over $9 million to Mexico on Taylor's behalf.

Taylor ran his Kansas City operations out of three houses on Hardesty Avenue.

There, he stored large quantities of drugs and various "tools of the trade" such as

firearms, ammunition, digital scales, plastic bags, and surveillance cameras. Police

executed a searchwarrant on the houses, and at trialmultiple coconspiratorstestified that

they had purchased marijuana and cocaine from Taylor and had seen large quantities of

drugsin the houses. The government also submitted recordings obtained from wiretaps

on Taylor's cell phones. Itsought to authenticate several ofthose recordingsthrough the

testimony of FBI Task Force Officer (TFO) MarkCorbin, who identified Taylor's voice.

The district court admitted the wiretap evidence over Taylor's objection that the FBI

witness could not identify the voices of persons he had never met such as his.

Vickers' alleged role in the drug conspiracy was more limited than Taylor's.

Robert Taylor testified that Vickers had asked if he could get involved with his Mexican

Williams is one of the two defendants in this case who are fugitives. 2

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drug business, but Vickers was turned down. Testimony at trial showed, however, that

Vickers had purchased several pounds of marijuana from multiple coconspirators,

including Rahmon Allen and Darryl Taylor. The latter was Andre Taylor's nephew and

one of his main customers, and he testified that all of the marijuana he sold to Vickers

had come from Andre Taylor. Other witnesses also testified that Vickers had sold

smaller amounts of marijuana to his own customers, and the government submitted a

wiretap recording in which Vickers could be heard negotiating a marijuana price with

an unidentified third party. There was, however, no evidence that Vickers ever bought

or sold cocaine.

B.

TFOCorbin testified thattwo government confidentialinformants(CIs) hadmade

nine controlled purchases of cocaine fromTaylor, one of which formed the basisfor the

aiding and abetting charge against him. Coconspirator Daniel Howard testified that he

had unwittingly served as a middleman for that controlled buy after an unidentified CI

had solicited drugs from him. Howard had called Taylor and asked him to deliver the

drugs to an address where the CI and he were waiting. When Taylor arrived, Howard

took money fromtheCI,met Taylor in his car, exchanged themoney for drugs, and gave

the drugs to the CI.

Corbin,whohadsupervisedthat controlled buy,testified that hissurveillance team

had seen Howard come out of the house where the CI was waiting, get into a car, and

then go back inside. He also testified that after the CI contacted him, he field tested the

purchase and the results were presumptively positive for cocaine. The amount of money

he gave the CI was also consistent with the size of the purchase. Because Corbin's

testimony about what the surveillance team had seen exceeded the scope of his personal

knowledge, however, Taylor moved for a mistrial. The court denied that motion but

struck Corbin's testimony about the CI's actions.

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C.

Witnessestestified that Andre Taylor's apartment was burglarized on New Years

Eve 2011 and that large amounts of cash and drugs were stolen. Robert Taylor testified

that Andre Taylor believed that coconspirator Billy Brown was responsible for the

burglary and offered $10,000 to anyonewho would "knockBilly off." RobertClark, one

ofTaylor's customers,similarly testified thatTaylor had asked his brother AntwanClark

to lure Brown to a fake drug deal so that Taylor could "fuck him up" and get his money

back. The government also introduced evidence of a phone call between Taylor and

codefendantEric Union, who had also been chargedwith themurder for hire conspiracy.

During that phone call, Taylor told Union that it was "necessary to kill [Brown]."

Robert Taylor further testified that Andre Taylor had at one point tried to shoot

Brown in south Kansas City, but he had escaped. The government then called Kansas

City police officer Kenneth Woodward, who testified thatBrown had come to the police

station and told him that someone had shot at him while he was driving. Woodward

testified that he had examined Brown's vehicle and that it appeared the back windows

had been shot out. Taylor objected, arguing that Woodward's testimony about what

Brown had said violated hisrightto confront adversewitnesses. The courtoverruled that

objection and admitted Woodward's testimony.

The government later called Kenneth Vaughn Cooper, who had pled guilty to the

murder for hire conspiracy. Cooper testified that Eric Union had put him in touch with

Taylor, who had a job for him. Cooper testified that Taylor had asked himto killBrown,

but he had agreed only to burglarizeBrown's house in exchange for a portion ofthe cash

or drugs inside. The government also introduced evidence of a phone call between

Cooper and Taylor during which Cooper agreed to retrieve a "hammer" (apparently a

gun) from one of Taylor's houses on Hardesty. After intercepting that call, the police

followed Cooper from his home in Kansas to Taylor's house and arrested him as he

departed, recovering a machine gun fromhis vehicle. While Cooper acknowledged that

he had retrieved a gun from Taylor's house, he maintained that he had only intended to

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use it to burglarize Brown. The government then called Kevin Blum, who testified that

Cooper had told him in jail that he had been arrested for possessing a firearm which he

had intended to use to kill someone.

D.

The jury convicted Taylor on all counts and Vickers on a lesser included offense

of conspiracy to distribute less than 100 kilograms of marijuana. Vickers' presentence

investigation report indicated that he, his cousin Garron Briggs, and a third unidentified

man were suspected of murdering a man named Edward Ewing while attempting to

recover stolen cocaine and cash. At sentencing the government introduced a video

interview of Ewing's girlfriend, who claimed she had witnessed this murder, and she

identified Vickers as one of the men who had attacked Ewing. One of the investigating

officers then testified that a large sum of money had been stolen from Briggs and that

Ewing may have been accused as a "scapegoat" for the theft.

Based on this record, the district court found that the Ewing murder was "drugrelated activity" and applied themurder crossreference in the drug trafficking guideline.

That cross reference provides that if a victim is murdered, the court should apply the

guideline for first or second degree murder if doing so results in a greater offense level.

U.S.S.G. § 2D1.1(d)(1). The district court applied guideline § 2A1.1 for first degree

murder in sentencing Vickers, increasing his base offense level from 12 to 43, and it

sentenced him to 60 months in prison, the maximum sentence available. See 21 U.S.C.

§ 841(b).

Taylor and Vickers appeal, each challenging the sufficiency of the evidence

supporting his conviction. Taylor also appeals the district court's denial of his motion

for a mistrial and the court's evidentiary rulings, specifically focusing on the 24 wiretap

recordings as well as Officer Woodward's testimony. Taylor further argues that

cumulative errors deprived him of his right to a fair trial. Vickers also appeals his

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sentence, arguing that the sentencing court committed procedural error in applying the

murder cross reference.

II.

A.

We review a challenge to the sufficiency of the evidence de novo, viewing the

evidence in the light most favorable to the verdict, accepting all reasonable inferences

supporting it, and affirming "ifthere is any interpretation ofthe evidence that could lead

a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt."

United States v. Scofield, 433 F.3d 580, 585 (8th Cir. 2006). We conclude that the

evidence was sufficient to support the convictions of Taylor and Vickers for the

following reasons.

The government presented sufficient evidence to support Taylor's conviction of

conspiracy to distribute over 1,000 kilograms of marijuana or over 5 kilograms of

cocaine. "To establish that a defendant conspired to distribute drugs under 21 U.S.C.

§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to

distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the

defendant intentionally joined the conspiracy." United States v. Conway, 754 F.3d 580,

587 (8th Cir. 2014). Here, multiple coconspirators testified that Taylor had agreed to

buy large quantities of marijuana and cocaine fromCharlieWilliams, to ship those drugs

to Kansas City using a team of drivers, and to distribute the drugs in Kansas City and

send money back to Williams. The government also introduced wiretap recordings of

phone calls in which Taylor discussed his drug related activities, including his business

with Williams, as well as photographs of drugs and "tools of the trade" found by police

while searching his houses. This evidence would allow a jury to find that there was a

conspiracy between Taylor and othersto import and distribute marijuana and cocaine in

Kansas City in the amounts charged, that Taylor knew about that conspiracy, and that

Taylor intentionally joined it.

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Taylor suggests that the coconspirators' testimony is not credible because those

witnesses had a "motive to testify and something to gain." We will defer to the jury's

assessment of witness credibility, however, and a conspiracy conviction may be based

solely on coconspirator testimony. See United States v. Whirlwind Soldier, 499 F.3d

862, 870 (8th Cir. 2007). Taylor also assertsthat the district court erred in admitting 24

wiretap recordings and argues that without those recordings there would have been

insufficient evidence to sustain his conviction. As discussed below, the district court did

not err in admitting the wiretap recordings, and there was extensive coconspirator

testimony supporting Taylor's conviction for conspiracy to distribute marijuana or

cocaine. See id.

The government also presented sufficient evidence to supportVickers' conviction

for conspiracy to distribute less than 100 kilograms of marijuana. The evidence at trial

showed that Vickers had askedRobert Taylor if he could participate in hisMexican drug

connection, demonstrating that he knew about that operation. The evidence also showed

that Vickers had on multiple occasions purchased resale quantities of marijuana from

coconspiratorsRahmonAllen andDarylTaylor, atleastsome ofwhich came fromAndre

Taylor. Testimony and wiretap evidence further showed that Vickers had sold smaller

amounts of marijuana to his own customers. On this record, a reasonable juror could

find that Vickers had intentionally joined the conspiracy in which his suppliers were

participating. See Conway, 754 F.3d at 588–89.

Vickers argues that Darryl Taylor's testimony is entitled to little weight because

it was lacking in detail and was uncorroborated by other evidence. Credibility

determinations are "virtually unreviewable on appeal," however, and "in reviewing a

defendant's challenge to the sufficiency ofthe evidence, witnesstestimony does not need

to be corroborated." United States v. Keys, 721 F.3d 512, 519–20 (8th Cir. 2013)

(internal quotationmarks and alterations omitted). Vickers also arguesthat the evidence

showed at most that he had participated in isolated drug transactions, not that he had

joined a conspiracy. Evidence that he engaged in multiple purchases ofresale quantities

of marijuana was, however, "sufficient in and of itself to make a submissible case of a

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conspiracy to distribute." Conway, 754 F.3d at 588. We conclude that sufficient

evidence supported Vickers' conviction.

The government also presented sufficient evidence to supportTaylor's conviction

for aiding and abetting the distribution of cocaine. That offense has three elements:

"(1) the defendant associated [himself] with the unlawful venture; (2) the defendant

participated in it as something [he] wished to bring about; and (3) the defendant sought

by [his] actions to make it succeed." United States v. Ellefson, 419 F.3d 859, 863 (8th

Cir. 2005). Here, coconspirator DanielHoward testified that he had brokered a drug deal

between Taylor and an unidentified government CI in which Taylor had supplied him

with drugs, intending that he then sell them to the CI. TFO Corbin testified that a field

test of the CI's purchase was presumptively positive for cocaine and that the amount of

money he had given the CI was consistent with the amount of cocaine purchased. This

evidence could allow a reasonable jury to find that Taylor had aided and abetted the sale

of cocaine to the CI.

Taylor contends that Howard's testimony was insufficient to support his aiding

and abetting conviction because it was not corroborated by other evidence. As

previously discussed, however, corroborating evidence is not necessary in a review of

the sufficiency of the evidence. Keys, 721 F.3d at 519. Taylor also assertsthat Corbin's

testimony did not prove that the substance exchanged was cocaine becauseCorbin "may

or may not be the person who sent the item [the CI purchased] to the lab." To the extent

that Taylor is arguing that the government was required to submit a chemical test to

prove that the item purchased was cocaine, we disagree since "[i]t is well established in

this circuit that the identity of a controlled substance can be proven beyond a reasonable

doubt by circumstantial evidence and opinion testimony." United States v. Cole, 537

F.3d 923, 927 (8th Cir. 2008). We conclude thatsufficient evidence supported Taylor's

aiding and abetting conviction.

Finally, the government presented sufficient evidence to support Taylor's

convictions of conspiracy to commit murder for hire and possession of a machine gun

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in furtherance of a crime of violence. To convict for conspiracy to commit murder for

hire under 18U.S.C. § 1958, the governmentmust prove that the defendant "(1) travelled

or caused another to travel in interstate commerce, (2) with the intent that a murder be

committed, (3) for hire." United States v. Delpit, 94 F.3d 1134, 1149 (8th Cir. 1996).

Here, Taylor caused Cooper to cross the state line between Kansas and Missouri by

directing himto retrieve a firearmfromhis house on Hardesty. In addition,Taylor asked

multiple people to help him kill Brown, demonstrating that Taylor intended that Brown

be murdered. Finally, Taylor offered to pay $10,000 to whoever agreed to commit that

murder, and he promisedCooper cash and drugsin exchange for his assistance in killing

Brown. On this record, a jury could reasonably find that Taylor had conspired with

Cooper to commit murder for hire.

Taylor argues that the government failed to prove that Cooper had agreed to kill

Brown, emphasizing that he testified that he intended only to burglarize Brown's house.

We will defer to the jury's assessment of Cooper's credibility, however, and there was

sufficient circumstantial evidence to allow the jury to infer that Cooper had agreed to

commit murder. See, e.g., Conway, 754 F.3d at 587. The evidence showed that Taylor

wanted Brown killed, that he asked Cooper to kill Brown, and that Cooper obtained a

machine gun to take with him to Brown's house. On this record, the jury could

reasonably infer that Cooper intended to use that gun to murder Brown, particularly in

light of Kevin Blum's testimony confirming that intent. See United States v. Wells, 646

F.3d 1097, 1104 (8th Cir. 2011). We therefore conclude that sufficient evidence

supported Taylor's conviction for conspiracy to commit murder for hire. We also

conclude that sufficient evidence supported Taylor's conviction for possession of a

machine gun in furtherance of a crime of violence, because the record showsthat Taylor

possessed the machine gun retrieved byCooper in furtherance ofthe conspiracy. See 18

U.S.C. § 924(c)(1).

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B.

We next address Taylor's arguments that the district court erred in denying his

motion for a mistrial and in admitting 24 wiretap recordings and Officer Woodward's

testimony, as well as his cumulative error argument. None provides a basisfor reversal.

We review a district court's ruling on a motion for mistrial for an abuse of

discretion. See, e.g., United States v. Espinosa, 585 F.3d 418, 428 (8th Cir. 2009).

Taylor argues that the district court abused its discretion by denying his motion for

mistrial after TFO Corbin testified about details of a controlled buy he personally knew

nothing about. Even though the trial court has "broad discretion to grant or deny a

motion for mistrial," the admission of a "prejudicial statement is normally cured by

striking the testimony and instructing the jury to disregard the remark." Id. Here, the

district court did strike the improper testimony, and Taylor does not explain why this

failed to cure any prejudice. We conclude that the district court did not abuse its

discretion in denying Taylor's motion for a mistrial.

We also review a district court's evidentiary rulings for an abuse of discretion,

disregarding errorsthat do not affect a party'ssubstantial rights. See, e.g., United States

v. Beckman, 787 F.3d 466, 477 (8th Cir. 2015). Taylor argues that the district court

abused its discretion by permitting TFO Corbin to identify his voice on 24 wiretap

recordings becauseCorbin had never spoken with Taylor in person. Awitnessmay offer

"[a]n opinion identifying a person's voice . . . based on hearing the voice at any time

under circumstancesthat connect it with the alleged speaker." Fed. R. Evid. 901. Here,

the record showed thatseveral of the recorded phone calls were on a phone number that

had been linked to Taylor, and Taylor identified himself during at least one ofthese calls

which indicatesthat he participated in it. See United States v. Pruitt, 702 F.2d 152, 155

(8th Cir. 1983). Further, a "telephone conversation may be shown to have emanated

from a particular person by virtue of its disclosing knowledge of facts known peculiarly

to him." United States v. Garrison, 168 F.3d 1089, 1093 (8th Cir. 1999). Here, many

of the recordings included details of Taylor's drug activities and those of other

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coconspirators. On this record, we conclude that there was a sufficient basis on which

Corbin could identifyTaylor's voice and that the district court did not abuse its discretion

by admitting these recordings.

Taylor also asserts that the district court violated his right to confront adverse

witnesses by admitting Officer Woodward'stestimony thatBillyBrown reported that he

had been shot at. We review Confrontation Clause challenges de novo. Young, 753

F.3d at 772. TheConfrontationClause bars admission of a witness'stestimonial hearsay

statements unless the witness is unavailable and the defendant has had a prior

opportunity to cross examine him. See United States v. Wright, 739 F.3d 1160, 1170

(8th Cir. 2014). We need not decide whether the admission of Woodward's testimony

violated Taylor's right to confrontation, however, because any error in admitting that

testimony would have been harmless beyond a reasonable doubt. See United States v.

Holmes, 620 F.3d 836, 844 (8th Cir. 2010).

"Evidence erroneously admitted in violation of the Confrontation Clause is

harmless beyond a reasonable doubt as long as the remaining evidence is

overwhelming." Id. Here, the challenged testimony wasrelevant only to Taylor'sintent

to have Brown murdered, and the government provided overwhelming independent

evidence of that intent. That additional evidence included testimony from multiple

witnesses showing that Taylor sought assistance in killing Brown, as well as a wiretap

recording in which Taylor stated that it was "necessary to kill [Brown]." Further, the

governmentsubmitted evidence indicating that Cooper had agreed to murder Brown for

hire, including phone calls in which Taylor asked him to kill Brown and testimony

showing that Cooper had later obtained a machine gun from Taylor's house. On this

record,we conclude that overwhelming evidence independent ofWoodward'stestimony

established thatTaylor had conspiredwithCooper to haveBrownmurdered for hire. See

id. at 845. Any error in admitting that testimony was therefore harmless beyond a

reasonable doubt.

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Taylor finally arguesthat cumulative errors deprived himof hisrightto a fair trial.

"We may reverse where the case as a whole presents an image of unfairness that has

resulted in the deprivation of a defendant's constitutionalrights, even though none ofthe

claimed errorsisitselfsufficient to require reversal." United States v. Samples, 456 F.3d

875, 887 (8th Cir. 2006). On this record, any error that the district court may have

committed was harmless. We affirm Taylor's convictions.

III.

We finally address Vickers' argument that the district court erred in applying

the murder cross reference in § 2D1.1(d)(1) ofthe sentencing guidelinesfor his alleged

involvement in the murder of Edward Ewing. "We review de novo the district court's

application of the Guidelines, and we review for clear error the district court's factual

findings." United States v. Patrie, 794 F.3d 998, 1000 (8th Cir. 2015). The guideline

applicable to drug trafficking includes a cross reference providing that if a victim is

murdered, courts should apply the applicable murder guideline in sentencing the

defendant. See U.S.S.G. § 2D1.1(d)(1). Here, that cross reference will only be

applicable if the Ewing murder is relevant to Vickers' offense of conviction under

guideline § 1B1.3. See id. § 1B1.3. We conclude that the district court erred by

3

applying the murder cross reference because the Ewing murder would not be relevant

conduct under § 1B1.3.

Subsection (a)(1) of § 1B1.3 specifiesthat relevant conduct includes all acts "that

occurred during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that

offense." U.S.S.G. § 1B1.3(a)(1). In this case, there was no evidence that the Ewing

murder occurred during, in preparation for, or in the course of attempting to avoid

Although § 1B1.3 does not apply to cross references if the guidelines specify 3

otherwise, the drug trafficking guideline does not disclaim its applicability. See, e.g.,

United States v. Williams, 431 F.3d 767, 772 (11th Cir. 2005).

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detection for the marijuana conspiracy of which Vickers was convicted. Even if the

murder was "drug-related activity" as the district court found, the government alleges

that it arose from the theft of cocaine, not marijuana. In addition, there was no evidence

that either of Vickers' alleged accomplices in the Ewing murder were connected to the

marijuana conspiracy. Based on thislack of evidence, we conclude that the district court

erred to the extent that it found that the Ewing murder was relevant conduct under

subsection (a)(1). See, e.g., United States v. Ewing, 632 F.3d 412, 417 (8th Cir. 2011).

The Ewing murder still could be relevant conduct under subsection (a)(2) of

§ 1B1.3, however. Thatsubsection providesthat relevant conduct also includes all acts

that were "part of the same course of conduct or common scheme or plan as the offense

of conviction." U.S.S.G. § 1B1.3(a)(2). This definition, however, "applies only to

offenses for which [U.S.S.G.] § 3D1.2(d) would require grouping of multiple counts."

Ewing, 632 F.3d at 417 (internal quotation marks omitted). Section 3D1.2(d) of the

guidelines requires multiple counts to be grouped for sentencing purposes where the

offense level is determined by the aggregate harm caused or if "the offense behavior is

ongoing or continuous in nature." U.S.S.G. § 3D1.2(d). It further provides a list of

offenses that are expressly included in and excluded from grouping. See id. Here, the

Ewing murder is notrelevant conduct under subsection (a)(2) because even ifit was part

of the same course of conduct as the marijuana conspiracy, § 3D1.2(d) provides that

murder cannot be grouped with other crimes. Id.

The government appears to argue that only the crime of conviction, not the

relevant conduct offense, must be capable of grouping for subsection (a)(2) to apply,

citing our court's decision in United States v. Jackson, 782 F.3d 1006 (8th Cir. 2015).

Jackson did not address that issue, however, and we reject the concept. Our court has

previously recognized thatsubsection (a)(2) applies if the offense of conviction and the

relevant conduct offense would have been grouped together had the defendant also been

convicted ofthe latter offense. SeeUnited States v.Cole, 525 F.3d 656, 658–59 (8thCir.

2008). As the Cole court explained, "[a] defendant need not be charged with or

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convicted of the [relevant] conduct as long as it could form the basis for a count that

would be grouped with the offense of conviction." Id. at 659. We conclude based on

thislanguage that the proper focus under (a)(2) is whether both the offense of conviction

and the relevant conduct offense would be grouped under § 3D1.2(d). Notably, nearly

all of the circuit courts to consider this question have reached the same conclusion. See

United States v. Horton, 693 F.3d 463, 478 (4th Cir. 2012) (collecting cases). The

Ewing murder is therefore not relevant conduct under (a)(2) because it cannot be

groupedwithVickers' offense of conviction, andwe conclude thatthe district court erred

in applying the murder cross reference when sentencing him. We therefore vacate his

sentence and remand his case for resentencing.

IV.

For these reasons we affirm the convictions of Taylor and Vickers, but we

vacate Vickers' sentence and remand his case for resentencing consistent with this

opinion.

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