UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5082

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TONY ORLANDO HUGHES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Newport News. Robert C. Doumar, Senior

District Judge. (CR-04-16)

Submitted: September 16, 2005 Decided: October 20, 2005

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

L. Dickerson Bragg, ST. CLAIR LAW FIRM, Norfolk, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Michael J.

Elston, Scott W. Putney, Assistant United States Attorneys, Newport

News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Following a jury trial, Tony Orlando Hughes was convicted

of thirty-six counts of a sixty-seven count indictment: one count

of conspiracy to possess with intent to distribute and distribute

cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2000);

sixteen counts of the distribution of cocaine base, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(A) (2000); four counts of the

distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B) (2000); two counts of the distribution of cocaine

base, in violation of § 841(a)(1) and (b)(1)(C) (2000); two counts

of the distribution of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C) (2000); three counts of possession with

the intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B) (2000); and eight counts of possession of

a firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1) (2000). Hughes appeals his

convictions and 2616-month sentence. We affirm.

Hughes first challenges the sufficiency of the evidence

resulting in his convictions. A defendant challenging the

sufficiency of the evidence “bears a heavy burden.” United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation omitted).

To determine if there was sufficient evidence to support a

conviction, this court considers whether, taking the evidence in

the light most favorable to the Government, substantial evidence
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supports the jury’s verdict. Glasser v. United States, 315 U.S.

60, 80 (1942) (citation omitted); United States v. Wills, 346 F.3d

476, 495 (4th Cir. 2003) (citation omitted). The court reviews

both direct and circumstantial evidence and permits “the

[G]overnment the benefit of all reasonable inferences from the

facts proven to those sought to be established.” United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citations omitted).

Witness credibility is within the sole province of the jury, and

the court will not reassess the credibility of testimony. United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (citations

omitted). Further, the uncorroborated testimony of a single

witness may be sufficient, even if the witness is an accomplice, a

co-defendant, or an informant. See United States v. Wilson, 115

F.3d 1185, 1189-90 (4th Cir. 1997). 

Fifteen Government witnesses testified against Hughes.

Each witness disclosed to the jury that he was testifying pursuant

to a plea agreement, each witness was subject to cross-examination,

and each witness testified in detail as to drug transactions

completed with Hughes. It was for the jurors to determine what

weight to give each witness’s testimony. Drawing all inferences in

favor of the Government, a reasonable jury could conclude that the

evidence was sufficient to convict Hughes beyond a reasonable

doubt.
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Hughes next contends that his sentence violates the Sixth

Amendment because it was based on drug quantities that were not

found by the jury and because it was based upon prior convictions

that were used to enhance his statutory penalties and to calculate

his criminal history. Because Hughes preserved these issues by

objecting to the presentence report and at his sentencing hearing

based upon Blakely v. Washington, 542 U.S. 296 (2004), this court’s

review is de novo. See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003) (“If a defendant has made a timely and sufficient

Apprendi sentencing objection in the trial court, and so preserved

his objection, we review de novo.”) (citation omitted). When a

defendant preserves a Sixth Amendment error, this court “must

reverse unless [it] find[s] this constitutional error harmless

beyond a reasonable doubt, with the Government bearing the burden

of proving harmlessness.” Id. (citations omitted); see United

States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing

difference in burden of proving that error affected substantial

rights under harmless error standard in Fed. R. App. P. 52(a) and

plain error standard in Fed. R. App. P. 52(b)).

Even if the disputed quantity of drugs was removed from

the sentencing calculation, Hughes’ sentence would not have been

different. By its verdict, the jury found the Government proved

beyond a reasonable doubt that the conspiracy involved at least one

and-a-half kilograms of cocaine base (“crack”) and at least five
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kilograms of cocaine. This finding alone placed Hughes in the

highest base offense level, thirty-eight. See U.S. Sentencing

Guidelines Manual (“USSG”) § 2D1.1(c)(1) (2003). Thus, because the

actual sentence imposed did not exceed the maximum of the

unenhanced guideline range, there was no Sixth Amendment violation.

See United States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005)

(holding that if sentence does not exceed maximum authorized by

facts admitted by defendant or found by jury, there is no Sixth

Amendment violation). Moreover, the district court was required to

impose a statutorily-mandated sentence for the firearm convictions.

See United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005)

(“[Even after United States v. Booker, 125 S. Ct. 738 (2005)], a

district court has no discretion to impose a sentence outside of

the statutory range established by Congress for the offense of

conviction.”). Finally, Hughes’ challenge to the use of prior

convictions is foreclosed. See United States v. Cheek, 415 F.3d

349, 350 (4th Cir. 2005) (holding that Sixth Amendment not violated

when sentence enhanced based on prior convictions that were not

charged in indictment or admitted by defendant). 

Hughes finally maintains that the district court erred in

imposing the “subsequent conviction” enhancement of 18 U.S.C.

§ 924(c)(1)(C)(i) (2000), arguing that the chain of events

surrounding his conviction should be considered one continuing

offense for sentencing purposes, or alternatively, that prior to
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his convictions at trial, he had no convictions under § 924(c)(1);

therefore, he should have received five years for each count and

not the twenty-five year enhancement provided for “second or

subsequent convictions” under § 924(c)(1)(C)(i). 

In United States v. Camps, 32 F.3d 102, 106 (4th Cir.

1994), this court concluded that “multiple, consecutive sentences

under section 924(c)(1) are appropriate whenever there have been

multiple, separate acts of firearm use or carriage, even when all

of those acts related to a single, predicate offense.” Further, in

Deal v. United States, 508 U.S. 129, 132 (1993), the Supreme Court

held that, in the context of § 924(c)(1), the term “conviction”

“refers to the finding of guilt by a judge or a jury that

necessarily precedes the entry of a final judgment of conviction”

and not to the final judgment of conviction itself. The Supreme

Court further concluded that “the language of § 924(c)(1) only

requires a ‘conviction after the first conviction.’” Deal, 508

U.S. at 135. Under this reasoning, a defendant convicted of

multiple § 924(c)(1) violations in one trial could properly receive

enhanced sentences for second and subsequent offenses, as at the

time of sentencing, he or she will have “prior convictions.” Thus,

under either theory, Hughes’ argument fails.

Accordingly, we affirm Hughes’ convictions and sentence.

We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED