ON PETITION FOR REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4657

STEVEN FOWLER,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4697

ANTHONY SAMUELS,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4706

TIMOTHY TABOR,

Defendant-Appellant. 

Appeals from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., District Judge.

(CR-99-10)

Submitted: July 9, 2003

Decided: September 4, 2003
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Bryan Emery Gates, Jr., Winston-Salem, North Carolina; Thomas

Franklin Loflin, III, LOFLIN & LOFLIN, Durham, North Carolina;

Paul K. Sun, Jr., SMITH, HELMS, MULLISS & MOORE, L.L.P.,

Raleigh, North Carolina, for Appellants. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Steven Fowler, Anthony Samuels, and Timothy Tabor were

indicted on one count of conspiracy to distribute in excess of fifty

grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846

(2000). The conspiracy lasted from approximately June 1996 until

January 1999. Based on a preponderance of the evidence, the district

court found each defendant responsible for at least 1.5 kilograms of

crack. Fowler received a life sentence; Samuels and Tabor each

received a 360-month sentence. They now appeal their convictions

and sentences. We affirm. 

I

At trial, Clifton Lewis Belcher testified that by October 1996, he

and Fowler were traveling at least weekly from Durham, North Caro2 UNITED STATES v. FOWLER
lina to New York City to purchase crack cocaine. Belcher stated that

they never returned to Durham with less than one-half kilogram of

crack. By April 1997, Samuels was giving Fowler and Belcher money

to purchase at least 125 grams of crack for him on the New York

trips. In mid-1997, Fowler and Belcher began returning to Durham

with powder cocaine, which they then cooked into crack and distributed. Samuels and Tabor showed them how to convert powder

cocaine into crack. Additionally, Tabor sold crack for the organization. Fowler supplied Tabor at least weekly with 125 grams of crack.

A jury convicted the three defendants. At sentencing, the district

court found that each defendant was responsible for at least 1.5 kilograms of crack. The court sentenced Fowler to life in prison. Tabor

and Samuels each received a 360-month sentence. 

II

Fowler’s sole argument in his formal brief is that the court improperly admitted a taped telephone conversation among Belcher, Fowler’s girlfriend, and Fowler. Contrary to Fowler’s claim that the

conversation constituted inadmissible hearsay, we find that Fowler’s

statements on the tape were an admission by a party-opponent. They

were offered against Fowler and were his own statements. See Fed.

R. Evid. 801(d)(2)(A); United States v. Price, 13 F.3d 711, 720 (3rd

Cir. 1994); United States v. Hernandez, 829 F.2d 988, 994 (10th Cir.

1987). Admission of the tape was not an abuse of discretion. 

III

Samuels’ offense level was enhanced for firearm possession. See

U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998). There was

evidence that Belcher carried, used, and possessed a firearm in furtherance of the conspiracy. Indeed, Belcher freely admitted that he

was "the right hand man" for Fowler and Samuels, and that customers

knew he would shoot them if they did not pay for the drugs they

bought. Belcher’s possession of a firearm was attributable to his

coconspirator, Samuels. See United States v. Hunter, 19 F.3d 895, 896

(4th Cir. 1994). Enhancement of Samuels’ sentence under USSG

§ 2D1.1(b)(1) was not clearly erroneous. 

UNITED STATES v. FOWLER 3
IV

Fowler, Samuels, and Tabor contend that their respective sentences

violate the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). As

a consequence, they argue that they were subject to prison terms of

no more than twenty years under 21 U.S.C. § 841(b)(1)(C) (2000). 

"Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt."

Apprendi, 530 U.S. at 490. With respect to drug trafficking crimes

whose penalties are set forth at 21 U.S.C. § 841(b), "Apprendi dictates

that in order to authorize the imposition of a sentence exceeding the

maximum allowable without a jury finding of a specific threshold

drug quantity, the specific threshold quantity must be treated as an

element of an aggravated drug trafficking offense, i.e., charged in the

indictment and proved to the jury beyond a reasonable doubt." United

States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc),

cert. denied, 535 U.S. 1098 (2002). Twenty years is the maximum

sentence for cocaine offenses governed by § 841(b). See 21 U.S.C.

§ 841(b)(1)(C); Promise, 255 F.3d at 159. 

During deliberations, the jury submitted the following question to

the court, "Must each individual person be responsible for distribution

of fifty grams of cocaine to be guilty of the charge?" The court

responded, "[I]t is not necessary that each individual be responsible

for distribution of fifty grams of cocaine to be guilty of the charge.

The weight of any drugs distributed is not an element of the offense."

Subsequently, the jury asked, "What is the point or significance of the

fifty grams listed in the indictment?" The court answered:

Remember I told you a while ago that is not an element of

the offense. The significance of that, if any, is that [if] a

defendant is convicted, the amount of drugs could bear on

the punishment for the offense for which they are convicted.

It is not an element of the offense. 

At sentencing, at least one of the defendants, Samuels, made an

objection invoking Jones v. United States, 526 U.S. 227 (1999). This

objection was sufficient to preserve the Apprendi issue for appellate

review. See United States v. Mackins, 315 F.3d 399, 407 (4th Cir.

2003). It is unclear whether Fowler and Tabor also invoked Jones at

4 UNITED STATES v. FOWLER
sentencing. It is appropriate, therefore, to apply the higher standard

of harmless-error review to all defendants. "In undertaking harmless

error review, we impose the burden on the Government to show,

beyond a reasonable doubt, that the error did not affect [the defendants’] substantial rights or, in other words, that it did not prejudice

them." Id. "Prejudice, in this context, means that the error actually

affected the outcome of the proceedings, i.e., the defendants’ sentences were longer than that to which they would otherwise be subjected." Id. (internal quotation marks and citations omitted). In the

present case, the district court’s failure to submit drug quantity to the

jury did not affect the defendants’ substantial rights because the drug

quantity was alleged in the indictment and "the trial produced ‘uncontested and overwhelming evidence’ of drug quantity sufficient to sustain the sentence." United States v. Montgomery, 262 F.3d 233, 252

(4th Cir. 2001). Section 841(b)(1)(A) sets the maximum punishment

for a violation involving 50 grams or more of crack cocaine at life

imprisonment. The evidence establishes that the defendants were

responsible for an amount far greater than 50 grams of crack. Davis’

testimony that in 1998 he and Belcher returned to Durham with a total

of eleven kilograms of powder cocaine is alone sufficient to find the

defendants responsible for over 50 grams of crack. One gram of

cocaine powder converts to approximately .89 grams of crack and the

amount of crack—well in excess of 50 grams—to which eleven kilograms of powder cocaine converts is attributable to all members of

the conspiracy. See United States v. Carrington, 301 F.3d 204, 211

(4th Cir. 2002). 

V

We grant the motions to file pro se supplemental briefs. We have

considered the issues raised in those briefs and not discussed elsewhere in this opinion and find them to be without merit. We affirm

the convictions and sentences. We deny Fowler’s motion to compel

a reply and his motion to be personally served with all information.

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

argument would not aid the decisional process.

AFFIRMED

UNITED STATES v. FOWLER 5