UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4673

TOMMY RICE,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 02-4751

TOMMY RICE,

Defendant-Appellee. 

Appeals from the United States District Court

for the District of South Carolina, at Spartanburg.

Margaret B. Seymour, District Judge.

(CR-01-887)

Argued: September 26, 2003

Decided: October 20, 2003

Before WILKINS, Chief Judge, TRAXLER, Circuit Judge,

and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded with instructions by

unpublished per curiam opinion. 
COUNSEL

ARGUED: Rodney Wade Richey, RICHEY & RICHEY, P.A.,

Greenville, South Carolina, for Appellant. Elizabeth Jean Howard,

Assistant United States Attorney, Greenville, South Carolina, for

Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

A jury convicted Tommy Rice (Rice) of aiding and abetting the

possession with the intent to distribute and the distribution of fifty

grams or more of cocaine base (crack) in violation of 18 U.S.C. § 2

and 21 U.S.C. § 841(a)(1). He was sentenced by the district court to

293 months’ imprisonment. On appeal, Rice challenges both his conviction and sentence. The government cross-appeals, contending that

Rice should have received a mandatory life sentence under 21 U.S.C.

§ 841(b)(1)(A). We agree with the government that Rice’s conviction

should be affirmed and that his case should be remanded with instructions to the district court to impose a sentence of life imprisonment.

I

A

This case arose from an investigation conducted by a Drug

Enforcement Administration (DEA) Mobile Enforcement Team

(MET) into the drug distribution organization of one of Rice’s codefendants, Tony Patterson (Patterson).1

 Patterson’s organization distributed cocaine and crack in Spartanburg, South Carolina. 

1DEA Agent Mario Lijoi testified that METs assist local law enforcement with investigating violent drug offenders who have been in business for extended periods of time. 

2 UNITED STATES v. RICE
In the winter of 2000, Rice began working for Patterson as a car

washer at Patterson’s business, Big Tee’s Tires and Rims (Big Tee’s).

On August 9, 2001, Rice was present at Big Tee’s when Gary Brown

(Brown) sold two ounces of crack to William Skinner (Skinner), a

DEA confidential informant. On that date, Rice rode with Brown to

pick up the crack from LeSean Scurry. When they returned, Rice

handed Patterson the two ounces of crack. Thereafter, Patterson

returned the two ounces of crack to Brown who sold the crack to

Skinner for $1700. 

On August 14, 2001, Rice served as a lookout during another transaction involving Brown and Skinner. Skinner went to Big Tee’s with

$3,400 to purchase crack. When he arrived at Big Tee’s, Skinner was

met at the door by Rice who let Skinner inside the building and then

locked the door behind him. Skinner, Brown, and Scott Broadus

(Broadus) were all present during the transaction and testified that

Rice acted as a lookout for police during this transaction. After the

transaction, Skinner met with DEA agents and turned over the crack

that was purchased for $3,400. Ivette Vallego, a DEA forensic chemist, testified that the substance seized on August 14, 2001 contained

105 grams of crack. 

For his assistance to the Patterson drug distribution organization,

it does not appear that Rice received any monetary compensation.

Rather, for his assistance, Rice, who was a crack addict at the time,

was purportedly provided crack and/or allowed to fuel his addiction

by testing the crack prepared by Patterson. 

B

On November 27, 2001, Rice was named in counts one and three

of a five-count superseding indictment filed in the United States District Court for the District of South Carolina. Count one charged Rice

with conspiracy to possess with the intent to distribute fifty grams or

more of crack and more than five kilograms of cocaine in violation

of 21 U.S.C. §§ 841(a)(1) and 846. Count three charged that, on or

about August 14, 2001, Rice possessed with the intent to distribute

and distributed fifty grams or more of crack, and did aid and abet

Brown and Broadus in the commission of the offense, in violation of

18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). 

UNITED STATES v. RICE 3
On April 3, 2002, the government filed an information pursuant to

21 U.S.C. § 851 which notified Rice that he was subject to the

enhanced penalties provided by 21 U.S.C. § 841(b)(1)(A) based on

his prior felony drug convictions. Based on these convictions, Rice,

upon conviction of either count one or three of the superseding indictment, was subject to a mandatory life sentence. Id.

The case proceeded to trial before the district court on April 23 and

24, 2002. The jury was unable to reach a verdict as to count one and

a mistrial was declared on that count. As to count three, by special

verdict, the jury convicted Rice of aiding and abetting the possession

with the intent to distribute and the distribution of fifty grams or more

of crack. 

On July 30, 2002, after the district court concluded that the mandatory life sentence in this case was not disproportionate to the offense

of conviction, Rice was sentenced to life imprisonment. On July 31,

2002, the district court filed an order staying entry of judgment in

Rice’s case in order to provide him an allocution opportunity. In its

order, the district court also stated that it would hear arguments concerning any effect Apprendi v. New Jersey, 530 U.S. 466 (2000),

might have on Rice’s sentencing. 

At the second sentencing hearing on August 6, 2002, the district

court heard argument from the parties and Rice’s allocution and found

that a life sentence was unconstitutionally disproportionate to the

offense of conviction because Rice was not a major dealer, made no

money from his participation in Patterson’s organization, and was not

convicted on the conspiracy count, but rather was only convicted of

aiding and abetting Brown and Broadus in the commission of the

offense charged in count three. As a result, the district court ignored

the mandatory sentence of life imprisonment and sentenced Rice

based on a finding that he was accountable for 283.3 grams of crack

and five kilograms of cocaine. This finding resulted in an offense

level of thirty-four. Rice’s criminal history category was five, producing a Guideline range of 235-293 months’ imprisonment. Rice was

sentenced to 293 months’ imprisonment. Following the entry of judgment, Rice filed a timely notice of appeal and the government filed

a timely notice of cross-appeal. 

4 UNITED STATES v. RICE
II

Rice contends that there is insufficient evidence in the record to

support his conviction for aiding and abetting the possession with the

intent to distribute and the distribution of fifty grams or more of crack

on August 14, 2001, 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). This

contention is without merit. 

When reviewing "the sufficiency of the evidence following a conviction, this court views the evidence and the reasonable inferences

to be drawn therefrom in the light most favorable to the Government."

United States v. Lomax, 293 F.3d 701, 705 (4th Cir.) (citation and

internal quotation marks omitted), cert. denied, 537 U.S. 1031 (2002).

We must sustain the jury’s verdict so long as there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).

As applied to this case, the elements of possession with intent to

distribute fifty grams or more of crack are as follows: (1) the possession of fifty grams or more of crack; (2) the knowledge of the possession; and (3) the intent to distribute the crack. United States v.

Crockett, 813 F.2d 1310, 1316 (4th Cir. 1987) (possession with intent

to distribute PCP). The elements of distribution of fifty grams or more

of crack are as follows: (1) the distribution of fifty grams or more of

crack; (2) the knowledge of the distribution; and (3) the intent to distribute the crack. United States v. Tran Trong Cuong, M.D., 18 F.3d

1132, 1137 (4th Cir. 1994) (distribution of prescription controlled

substances). 

In this case, the evidence is more than sufficient to support Rice’s

conviction for aiding and abetting the possession with the intent to

distribute and the distribution of fifty grams or more of crack. On the

August 14, 2001 transaction at issue, Brown sold 105 grams of crack

to Skinner. Skinner, Brown, and Broadus were all present during the

transaction and testified that Rice acted as a lookout for police during

the transaction. Obviously, Rice’s role as a lookout aided and abetted

Brown and Broadus in the possession with the intent to distribute and

the distribution of fifty grams or more of crack. United States v.

Arrington, 719 F.2d 701, 705 (4th Cir. 1983) ("To be convicted of

aiding and abetting, participation in every stage of an illegal venture

is not required, only participation at some stage accompanied by

UNITED STATES v. RICE 5
knowledge of the result and intent to bring about that result.") (citation and internal quotation marks omitted). 

The gist of Rice’s argument is that the testimony of Skinner,

Brown, and Broadus should not be credited. For example, Rice suggests that Skinner’s testimony should not be credited because he was

cooperating with the government to avoid the implications of a

December 2000 traffic stop in which he was found to have possessed

two ounces of cocaine and a firearm. Rice further posits that Broadus

and Brown’s testimony should not be credited because they testified

in hopes of obtaining a reduced sentence. We must reject Rice’s

attacks on the testimony of Skinner, Brown, and Broadus because we

are not at liberty to question the jury’s assessment of witness credibility. United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en

banc) (noting that the jury weighs the credibility of the evidence and

credibility determinations are not susceptible to judicial review). In

summary, there is sufficient evidence in the record to support Rice’s

conviction for aiding and abetting the possession with the intent to

distribute and the distribution of fifty grams or more of crack. 

III

We now turn to the parties’ arguments concerning the sentence

imposed in this case. The government contends that Rice should have

received the mandatory sentence of life imprisonment under 21

U.S.C. § 841(b)(1)(A). Rice contends that the district court was correct when it held that subjecting him to the mandatory sentence of life

imprisonment would result in a constitutionally disproportionate sentence, but further contends that, once the district court correctly made

this ruling, its selection of a 293-month sentence violated the dictates

of Apprendi. 

A

At Rice’s initial sentencing hearing on July 30, 2002, Rice moved

for a downward departure, arguing that a life sentence violated the

Eighth Amendment’s Cruel and Unusual Punishment’s Clause. The

district court rejected that argument and imposed a sentence of life

imprisonment, based on the following: 

6 UNITED STATES v. RICE
Mr. Rice has made a motion that the sentence of life without

parole is disproportionate to the crime committed, and he

argues that a life sentence constitutes cruel and unusual punishment. 

The Supreme Court in these circumstances requires a proportionality analysis in cases involving life sentences without parole. And the Supreme Court has established a series

of factors to be considered in determining whether a sentence is proportional to the crime committed. 

And the first inquiry is to the gravity of the offense and the

harshness of the penalty. And second, the court can look to

the punishments that have been meted out for other crimes

within the jurisdiction to determine whether the instant conduct is treated similarly to other crimes of similar gravity.

And finally a court may find it useful to compare the sentence imposed in other jurisdictions for the same crime. 

There’s no question that the gravity of Mr. Rice’s offense is

great. As the Fourth Circuit has stated in the case of United

States versus D’Anjou, drug use has become a pervasive and

destructive force in American society. As stated in Mr.

Rice’s presentence report, Mr. Rice was present when drugs

were sold. He converted powder to crack cocaine, and the

jury found him guilty of the charge of aiding and abetting

in possession with the intent to distribute fifty grams or

more of crack cocaine. 

While Mr. Rice may not have been the mastermind of this

operation, he was tasked with significant responsibility.

Therefore, given the substantial quantity of drugs involved

here and Mr. Rice’s position in the drug operation and the

fact that he faces this enhanced penalty because of his extensive history of felony drug offenses, the court concludes that

life without parole is not disproportionate to the crime

involved. 

(J.A. 329-30). On July 31, 2002, the district court stated in an order

that it had not afforded Rice the opportunity to allocute and scheduled

a second sentencing hearing for August 6, 2002. 

UNITED STATES v. RICE 7
At the August 6, 2002 sentencing hearing, Rice told the district

court that: 

I never made any deals. I never received any money. I don’t

know transactions that never went as far as the law enforcement that they was making deals. As a matter of fact, every

last one of them was caught making deals with drug

enforcement agents. I was never caught being filmed selling

any drugs to any drug enforcement agents. And the guys

that did make transactions ended up with little amount of no

time. 

And I just wanted to say that as far as receiving any money,

I never received any large amount of money from no transactions. . . . Only money that I received is from my job

washing cars. And that’s the only money I received at any

time. 

And . . . my bills was behind. And . . . if I was making that

kind of money, my bills wouldn’t be behind. I was behind

on my probation fee. I was behind on my rent. I mean I

wasn’t making any money. If I be having two felonies, it

was hard for me to get a job basically, and I just had to take

whatever I could get. And he offered me a job to wash cars,

and that’s what I did. 

(J.A. 340-41). After hearing from Rice, the district court concluded:

[A]fter considering the defendant’s statements with regard

to his role in this case and the facts that came out in trial

with regard to his role in this case, the fact that he — I think

it was clear from the trial that he was not a major . . . dealer.

He was not the ringleader in this case. 

I think it’s clear that the defendant’s statements and statements of others that have testified that he did not receive

any reward or any money personally as a result of any activity he engaged in, and the fact that the jury found that he

aided and abetted, but did not find him guilty of conspiracy

8 UNITED STATES v. RICE
charges, I find that his level of participation in this case . . .

does not rise to a level that would justify a life sentence. 

(J.A. 343-44). The district court then sentenced Rice to 293 months’

imprisonment, which was within the Guideline range (as calculated

by the district court following its findings concerning the amount of

drugs attributable to Rice and Rice’s criminal history) had the mandatory sentence of life imprisonment not been applicable. 

B

The record in this case leaves no doubt that Rice should have been

sentenced to life imprisonment. Count three of the superceding indictment charged that, on or about August 14, 2001, Rice possessed with

the intent to distribute and distributed fifty grams or more of crack,

and did aid and abet Brown and Broadus in the commission of the

offense, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). On

April 3, 2002, the government filed an information pursuant to 21

U.S.C. § 851 which notified Rice that he was subject to the enhanced

penalties provided by 21 U.S.C. § 841(b)(1)(A) based on his prior felony drug convictions.2

 Based on these convictions, Rice, upon conviction of either count one or three of the superseding indictment, was

subject to a mandatory life sentence. Id. Rice was ultimately convicted under count three of aiding and abetting the possession with

the intent to distribute and the distribution of fifty grams or more of

crack, 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), and this conviction

subjected him to a mandatory life sentence because, as an aider and

abettor, Rice was subject to punishment as a principal. 18 U.S.C.

§ 2(a) ("Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its commission,

is punishable as a principal."). Because the statutory minimum

sentence—life—was greater than the maximum Guideline sentence—

293 months—Rice should have been sentenced to a term of life

imprisonment. United States Sentencing Commission, Guidelines

Manual (USSG) § 5G1.1(b) ("Where a statutorily required minimum

sentence is greater than the maximum of the applicable guideline

2There appears to be no dispute that Rice has at least two prior felony

convictions as required by 21 U.S.C. § 841(b)(1)(A). 

UNITED STATES v. RICE 9
range, the statutorily required minimum sentence shall be the guideline sentence."). 

To be sure, while a district court may depart below the sentencing

range established by the Sentencing Guidelines, such a departure generally may not result in a sentence below the minimum term specified

in the offense of conviction. 18 U.S.C. § 3553(e) (limiting authority

of district court to depart below statutory minimum to cases in which

the government has moved for such a departure on the basis of substantial assistance); United States v. Patterson, 38 F.3d 139, 146 n.8

(4th Cir. 1994) (observing that "[t]he district court could have sentenced below the statutory minimum only if this departure was based

on the Government’s motion for downward departure due to Defendant’s substantial assistance"); cf. 18 U.S.C. § 3553(f) (safety valve

provision) (limiting applicability of statutory minimum penalties for

certain drug offenses when specified criteria are met); USSG § 5C1.2

(same). In this case, there was simply no basis for the district court

to ignore the mandatory life sentence. The government did not make

a substantial assistance motion and the safety valve provision obviously did not apply (Rice had too many criminal history points). 

Finally, it should be noted that Rice’s sentence is not disproportionate in a constitutional sense. In Solem v. Helm, 463 U.S. 277

(1983), the Supreme Court held that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted."

Id. at 290. To determine whether a sentence is proportionate to the

crime committed under Solem, we must consider: "(1) the gravity of

the offense and the harshness of the penalty, (2) the sentences

imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions." United States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995).3

3

In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme Court

rejected a claim that a mandatory life sentence without parole constituted

cruel and unusual punishment for a defendant convicted of possessing

more than 650 grams of cocaine. Id. at 996 (plurality opinion). As we

noted in Kratsas, the Supreme Court’s decision in Harmelin makes it

somewhat unclear as to whether Solem’s three-part proportionality test

should still be applied in noncapital cases. Kratsas, 45 F.3d at 67. Nonetheless, we have continued to use the Solem factors in cases involving a

sentence of life without the possibility of parole. Id.

10 UNITED STATES v. RICE
With regard to the Solem factors, aiding and abetting drug trafficking is an extremely grave offense with far-reaching effects. As we

noted in United States v. D’Anjou, crack use has become a "pervasive,

destructive force in American society." 16 F.3d 604, 613 (4th Cir.

1994). Moreover, Rice’s offense was graver because he is a repeat

drug offender. Kratsas, 45 F.3d at 68. Thus, the gravity of Rice’s

offense supports a severe sentence. Applying the second prong of

Solem, it is clear that a life sentence for a drug violation by a repeat

drug offender is not disproportionate with other sentences mandated

by the Sentencing Guidelines. Cf. D’Anjou, 16 F.3d at 613 ("[A] life

sentence for a major drug violation is not disproportionate in comparison with other sentences under the Guidelines."). Finally, applying

the third prong of Solem, a survey of drug statutes in states within this

circuit reveals the existence of harsh sentences for drug violations of

the magnitude involved here. See, e.g., S.C. Code Ann. § 44-53-

370(e)(2)(c), (d) (twenty-five year mandatory minimum sentence for

drug offense involving 100 or more, but less than 400, grams of

cocaine); Va. Code Ann. § 18.2-248(C) (providing for sentence of up

to life imprisonment for third drug offense). Therefore, after considering the Solem factors, one must conclude that a life sentence in this

case is not constitutionally disproportionate. Cf. Lockyer v. Andrade,

123 S. Ct. 1166, 1172-75 (2003) (holding that the state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft

was not contrary to or an unreasonable application of federal law);

Harmelin, 501 U.S. at 996 (plurality opinion) (sentence of life imprisonment without parole for first time drug offender convicted of simple possession of 650 grams of cocaine is not constitutionally

disproportionate); Kratsas, 45 F.3d at 65 (noting that "the law is well

settled that mandatory life sentences are constitutional when applied

to prior drug felony offenders"); United States v. Hill, 30 F.3d 48, 50

(6th Cir. 1994) (holding that a mandatory life sentence without the

possibility of parole for a third-time offender who committed a

§ 841(a)(1) offense involving 177.8 grams of crack "was not so

grossly disproportionate . . . as to violate the Eighth Amendment").4

4We note that Rice’s life sentence does not violate the dictates of

Apprendi. In Apprendi, the Supreme Court held that, other than the fact

of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be charged in the indictUNITED STATES v. RICE 11
IV

We understand what the district court was trying to accomplish

here. Rice was a relatively minor participant in the August 14, 2001

drug transaction and participated in this transaction not to make

money but rather only to obtain some crack to fuel his unfortunate

addiction to the drug. The district court understandably was compassionate, trying to give a break to an individual whom it deemed

unworthy of a mandatory life sentence. The mandatory life sentence

in this case may well reflect some of the inequities involved in the

imposition of mandatory minimum sentences and any argument here

is with the mandatory life sentence mandated and not with the compassionate rationale of the district judge. Indeed, mandatory minimum

sentences are designed to ensnarl the most culpable, but all too often

they capture many who are considerably less culpable. Moreover,

mandatory minimums often do not take into account the defendant’s

role in the offense, which more accurately reflects the dangerousness

and the culpability of the defendant. However, even though we may

feel that the district court ultimately imposed a just sentence of 293

months’ imprisonment, we are not at liberty to disturb a mandatory

sentence of life imprisonment that is consistent with the Sentencing

Guidelines, the will of Congress, and the proportionality principles

laid down by the Supreme Court and this court. Consequently, we are

constrained to vacate Rice’s sentence and remand the case to the district court with instructions to sentence Rice to a term of life imprisonment for his conviction for aiding and abetting the possession with

ment, submitted to a jury, and proved beyond a reasonable doubt. 530

U.S. at 490. Apprendi specifically excluded enhancements which are

based on prior convictions from its holding. Id. Because the mandatory

life sentence in this case was based on Rice’s prior convictions, Apprendi

is not applicable. Id. In any event, Apprendi does not apply to facts

which increase the mandatory minimum so long as the sentence is not

extended beyond the statutory maximum. United States v. Kinter, 235

F.3d 192, 199-202 (4th Cir. 2000) (holding that Apprendi does not apply

to district court’s exercise of discretion within statutory range, as long as

sentence imposed does not exceed statutory maximum), cert. denied, 532

U.S. 937 (2001). 

12 UNITED STATES v. RICE
the intent to distribute and the distribution of fifty grams or more of

crack.5

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED WITH INSTRUCTIONS

5We grant the government’s unopposed motion to file a supplemental

appendix. 

UNITED STATES v. RICE 13