UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5028

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONALD TAYLOR,

Defendant - Appellant.

No. 08-5039

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CEDRIC TAYLOR,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior 

District Judge. (5:07-cr-00102-F-1; 5:07-cr-00102-F-2)

Argued: January 29, 2010 Decided: March 22, 2010

Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
2

Affirmed in part, vacated in part, modified in part, and 

remanded by unpublished opinion. Judge Davis wrote the opinion, 

in which Judge Motz and Judge Gregory joined. 

ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina; Marilyn G. 

Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for 

Appellants. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:

George E. B. Holding, United States Attorney, Anne M. Hayes, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DAVIS, Circuit Judge:

Appellants Donald and Cedric Taylor were convicted on drug 

trafficking and witness tampering charges and were sentenced 

accordingly in the United States District Court for the Eastern 

District of North Carolina. They now appeal their convictions

and sentences. Together, they assert that the district court 

erred in (1) denying their motions for judgment of acquittal on 

the witness tampering charge; (2) sentencing them to 240 months

on the witness tampering charge; and (3) failing to provide an 

adequate explanation for their sentences. In addition, Cedric 

Taylor alleges error in the district court’s admission of 

laboratory reports without the testimony of the lab technician, 

and Donald Taylor alleges error in the district court’s refusal 

to apply a sentencing guidelines adjustment for acceptance of 

responsibility pursuant to U.S.S.G. § 3E1.1(a). We conclude that 

the district court provided an inadequate explanation of the 

sentence imposed on Cedric Taylor. Accordingly, we vacate the 

sentence and remand for further proceedings as to him. 

Furthermore, we find, as the government concedes, that the lower 

court erred when it imposed 240-month sentences on the witness 

tampering charge. In all other respects, for the reasons 

explained within, we affirm.
4

I.

The Appellants were charged in a six-count superseding 

indictment for conspiracy to distribute and possess with intent 

to distribute more than 50 grams of crack cocaine, in violation 

of 21 U.S.C. § 846 (Count One); distribution of more than 50 

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

(Counts Two and Three) (Donald Taylor only); tampering with a 

witness through threats of physical force, in violation of 18 

U.S.C. § 1512(a)(2)(C) (Count Four); attempting to kill a 

witness, in violation of 18 U.S.C. § 1512(a)(1)(C) (Count Five); 

and attempting to kill a witness in retaliation, in violation of 

18 U.S.C. § 1513(a)(1)(B) (Count Six). Donald Taylor pleaded 

guilty to the drug counts (Counts One through Three) and not 

guilty to the tampering counts (Counts Four through Six); Cedric 

Taylor pleaded not guilty to all counts. The jury convicted

Donald Taylor on Count Four (witness tampering through threats) 

and found Cedric Taylor guilty of Counts One (drug conspiracy) 

and Four. The jury found both Appellants not guilty of Counts 

Five and Six.

The district court sentenced Donald Taylor to 360-months of 

imprisonment on the drug counts and 240-months imprisonment on 

witness tampering, the sentences to run concurrently. The 

district court sentenced Cedric Taylor to concurrent 240-month 

terms of imprisonment on the drug and tampering counts. The 
5

defendants filed timely notices of appeal and we have 

consolidated the appeals. We have jurisdiction pursuant to 28 

U.S.C. §§ 1291 and 3742.

II.

In 2006, the Cumberland County Bureau of Narcotics and the 

United States Drug Enforcement Administration launched a drug 

distribution investigation in Fayetteville, North Carolina. The 

investigation revealed that, along with others, Donald Taylor 

ran a drug distribution ring in Cumberland County.

A.

The Appellants do not challenge the sufficiency of the 

evidence as to their narcotics convictions; accordingly, we 

briefly summarize that portion of the government’s proof. The 

government’s principal trial witness was Bobby Bunnells, a drug 

dealer and police informant.1

 1 Several other drug dealers and drug users testified at 

trial. According to Thomas Hanson, between October 2003 and 

March 2004, he sold cocaine or crack to Donald Taylor between 13 

to 16 times and he always saw drug traffic at the Taylors’s 

residence. Torrey Robinson testified that, between 2002 and 

2005, he sold Donald Taylor cocaine and crack more than 20 

times. He sold Donald Taylor drugs in front of Cedric Taylor’s 

residence while Cedric was present. He also witnessed Cedric 

Taylor sell drugs. Ronnie Bowman testified that he bought crack 

from Donald Taylor several times, and sold Cedric Taylor 

marijuana. Bowman also witnessed Cedric Taylor selling drugs. 

Camilo Garza purchased crack from Donald and Cedric Taylor in 

2005. Garza testified that lots of drug users stayed at the 

Taylors’s residence and used drugs there. 

He testified that in 2000, he began 
6

to sell 300 to 500 pounds of marijuana per month. In 2001, he 

met Donald Taylor, who had purchased a trailer home from 

Bunnells’s father. That same year, Donald Taylor began to 

purchase marijuana, and eventually (in 2003), cocaine and crack 

cocaine from Bunnells. Bunnells supplied Donald Taylor with 

crack cocaine on a weekly basis until the middle of 2004. During 

drug deals at Donald Taylor’s trailer, Bunnells observed

significant traffic going to the Taylor residence to purchase 

drugs. He saw buyers knock on the trailer door and request 

crack, and he saw Donald Taylor’s girlfriend sell them crack.

Bunnells also witnessed Cedric Taylor assisting Donald Taylor in 

his drug enterprise. He saw Cedric Taylor work the door at the 

trailer, weigh the crack, and hand the crack to customers.

Bunnells stopped selling drugs to Donald Taylor in mid-2004 

after he repeatedly saw police in the vicinity. When law 

enforcement officers arrested Bunnells in 2006, Bunnells began 

to cooperate in drug investigations as a confidential informant. 

In this capacity, he sought to buy drugs from Donald Taylor.

Having been out of the drug trade for some time, Bunnells 

employed his niece, Crystal Powell, to reconnect him with Donald 

Taylor. Powell was an admitted crack addict; she spent time at 

the Taylor residence in 2006 and early 2007, sometimes staying 

with them and sometimes prostituting herself to them for drugs. 

Powell facilitated contact between Donald Taylor and her uncle, 
7

and Donald Taylor agreed to meet Bunnells and sell him crack. 

Bunnells and Donald Taylor met on September 14, 2006, whereupon 

Donald Taylor (who had no drugs readily available) took Bunnells 

to another drug dealer’s residence, purchased two and a quarter 

ounces of crack with $1400.00 supplied to Bunnells by 

investigators, and gave the crack to Bunnells when they arrived 

back at Taylor’s residence. On October 23, 2006, Bunnells made a 

second purchase, this time of four and a half ounces of crack (a 

so-called “Big 8”) from Donald Taylor for $4000.00 in government 

funds. Cedric Taylor was present during the second transaction.2

B.

The witness tampering and attempted murder charges arose 

from events occurring several months after the above-described 

drug purchases by Bunnells from Donald Taylor. Based on the 

following evidence, the government theorized that the Appellants 

learned that Bunnells was cooperating with investigators and 

undertook to kill him. 

 2 During the investigation, agents executed at least two 

search warrants at properties controlled by the Appellants. On 

August 4, 2006, they executed a search warrant at a trailer used 

as a dope house, seizing an armored vest, a loaded gun, digital 

scales, and fliers advertising the sale and distribution of 

crack by Donald Taylor. On January 23, 2007, they executed a 

search warrant at Donald Taylor’s residence. Both Donald and 

Cedric were present when the warrant was executed. Agents found 

the residence littered with drug paraphernalia. They also seized 

firearms and ammunition.
8

Crystal Powell, Bunnells’s niece, spent significant time 

with Donald and Cedric Taylor, staying overnight at their 

trailer on many occasions, sharing meals with them, and doing 

drugs with them. Of relevance to the witness tampering charges 

against the Appellants, her testimony focused on one particular 

night when she accompanied Cedric Taylor to meet a drug dealer 

named Bobby Faircloth. She testified that during the meeting, 

Faircloth repeatedly winked at Cedric Taylor and stated that the 

trailer park was “hotter than a firecracker,” but that “as long 

as you’re selling to the police, they can’t fuck with you.” J.A. 

309.3

 3 Powell testified as follows:

We pulled up there and Buddy Faircloth was 

sitting there in a van and looked at Cedric and he 

winked his eye and he said three times in a row, he 

said Velton’s Trailer Park is hotter than a 

firecracker, he said, then he goes, but as long as 

you’re selling to the police they can’t fuck with you, 

and he winked his eye, and he said it three times in a 

row, as long as you’re selling with the police they 

can’t fuck with you and winked his eye. He done that 

three times.

And then we left and got back to the trailer and 

I think they started putting two and two equals four, 

you know what I’m saying? [Donald Taylor] started 

showing me some text messages from my uncle and I 

think he realized what my uncle was doing. 

And I’m not going to sit here and say, it looked 

like I was doing it with my uncle because there was 

times – there was money being borrowed and the whole 

while my uncle was not allowed out of his yard at 

eight o’clock, and even I didn’t even know that, but I 

was being the middle person. They were coming back to 
9

After speaking with Faircloth, Cedric Taylor returned with 

Powell to the Taylors’s trailer. Soon after their arrival, 

Donald Taylor showed Powell text messages from Bunnells —

messages that caused her to believe that he knew that Bunnells 

was working with investigators. One text message concerned 

Bunnells asking Donald Taylor to do another drug sale.

At approximately the same time that the Taylors showed 

Powell the text messages, the Taylor brothers, their cousin “Big 

G,” and a man named Harold Clark, each of whom was also at the 

trailer, were saying things like, “all you have to do is pull 

the trigger, pull the trigger.” J.A. 310. Powell also testified 

that Donald Taylor indicated that he was willing to do “whatever 

it took” to avoid jail, and that Harold Clark was walking around 

the trailer with a gun, plastic handcuffs, and duct tape.

In due course, Donald Taylor instructed one of the men 

present to take Crystal Powell from the trailer, noting that he 

did not care what the man did with Powell, and requiring only 

that he be informed of where he took her. The man dropped Powell 

off near a friend’s residence, at her direction, and she called 

Bunnells immediately and told him that his cooperation had been 

exposed.

 

me, I was going to meet, and then bringing the money 

back to them.

J.A. 309 (brackets added). 
10

Bunnells testified that on the very next day, January 20, 

2007, after a chance encounter near a car wash, Cedric Taylor 

and another man engaged in a vehicle chase with Bunnells, firing

shots at Bunnells’s truck. Bunnells escaped by driving his truck 

into a field, abandoning his vehicle, and fleeing into a wooded 

area. Thereafter, Bunnells contacted the case agent and told him 

about the incident, but did not identify Cedric Taylor as the 

shooter until, a day or so later, he had sent his mother and 

father out of town.

Bunnells took Powell to meet with investigators two days 

later, and Powell advised them of what had transpired on the 

night that she went with Cedric Taylor to visit Bobby Faircloth.4

C.

The claim of trial error raised by Cedric Taylor relates to 

evidence elicited from Agent Gary Owens of the Cumberland County 

Bureau of Narcotics. Owens testified about Bunnells’s

cooperation and, specifically, his purchase of crack cocaine

from Donald Taylor in September and October 2006. During Owens’s

 4 The defense argued at trial that Bunnells had concocted 

the story of the shooting. In support of that contention, Donald 

Taylor presented the testimony of Christopher Crocker, a drug 

dealer who had been incarcerated with Bunnells. Crocker 

testified that Bunnells told him that he had lied to the 

authorities about who shot-up his truck. According to Crocker, 

Bunnells stated that he had told the authorities that Donald 

Taylor was responsible, but in fact, Bunnells admitted to 

Crocker, he had shot-up the truck himself. On cross-examination, 

the government sought to impeach Crocker through evidence of his 

own aborted plea agreement and his prior silence about Bunnells.
11

testimony, the prosecutor offered into evidence the laboratory 

reports generated as a result of the tests performed on those 

drugs. Neither counsel objected, and the district court admitted 

the reports.

III.

As mentioned, prior to trial, Donald Taylor pled guilty to 

the drug conspiracy and drug distribution counts and not guilty 

to the three witness tampering, retaliation, and attempted 

murder counts. At trial, the jury convicted him on the charge of 

witness tampering by threat of force, but it found him not 

guilty on the retaliation and attempted murder counts. The jury 

found Cedric Taylor guilty of drug conspiracy and witness 

tampering by threat of force and not guilty on the retaliation 

and attempted murder counts. 

The Appellants timely filed and renewed motions for 

judgments of acquittal as to the witness tampering charge. The 

district court denied the motions, finding specifically that the

evidence presented at trial was sufficient to support the jury’s 

verdict that the Appellants’ intent in threatening and 

intimidating Powell was to intimidate and deter Bunnells from 

communicating with the authorities about the Appellants’ drug 

trafficking activities.
12

IV.

We first address the Appellants’ assertions of error in 

connection with the denial of the motion for judgment of 

acquittal as to the witness tampering charge and the admission 

of the lab reports. We then address the sentencing issues they 

raise.

A.

The first issue is whether the district court erred in 

denying the Appellants’ motion for judgment of acquittal under 

Fed. R. Crim. P. 29 as to the witness tampering charge. The 

Appellants argue that the government failed to present 

sufficient evidence for a jury to find beyond a reasonable doubt 

that their threatening and intimidating behavior toward Powell 

was intended to intimidate or threaten Bunnells and to deter him 

from communicating with law enforcement. The Appellants contend 

that any inference of such an intent is too attenuated and 

speculative to support their convictions. They contend that the 

only reasonable inference from the evidence is that they were 

attempting to gain information about and/or confirmation of

Bunnells’s police connections. The government responds that 

sufficient evidence supported the jury’s finding that 

Appellants’ threatening and intimidating actions directly toward 

Powell was intended to deter Bunnells and to cease his 

cooperation and communication with investigators.
13

We review this claim de novo. See United States v. RyanWebster, 353 F.3d 353, 359 (4th Cir. 2003). We must sustain a 

guilty verdict that, viewing the evidence in the light most 

favorable to the prosecution, is supported by “substantial 

evidence.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 

1996) (en banc) (quoting Glasser v. United States, 315 U.S. 60, 

80 (1942)). “Substantial evidence” is “evidence that a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant's guilt beyond 

a reasonable doubt.” Id. To that end, we “must consider 

circumstantial as well as direct evidence, and allow the 

government the benefit of all reasonable inferences from the 

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

v. Cameron, 573 F.3d 179, 183 (4th Cir. 2009) (citation 

omitted). 

The statute under which the Appellants were convicted 

prohibits, in relevant part, “us[ing or attempting to use] 

physical force or the threat of physical force against any

person . . . with intent to . . . hinder, delay, or prevent the 

communication by any person to a law enforcement officer . . . 

of information relating to the commission or possible commission 

of a Federal offense. . . .” 18 U.S.C. § 

1512(a)(2)(C)(alterations and emphases added). See generally

United States v. Harris, 498 F.3d 278, 283 (4th Cir. 2007). 
14

Here, the Appellants do not argue that they did not threaten the 

use of physical force against Powell, the “any person” referred 

to initially in the statute. Instead, they argue that the 

evidence failed as a matter of law to prove that they harbored 

the requisite intent, i.e., that the evidence failed to 

establish that they intended to “hinder, delay, or prevent” 

Bunnells, the second “any person” referred to in the statute,

from communicating with law enforcement. We reject this 

contention.

Intent is most often proved through inferences from 

circumstantial and indirect evidence. This court has explained 

that, “as a general proposition, circumstantial evidence may be 

sufficient to support a guilty verdict even though it does not 

exclude every reasonable hypothesis consistent with innocence.” 

United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008) 

(alteration and quotation marks omitted). “Indeed, ‘[t]he 

question of one’s intent is not measured by a psychic reading of 

[the defendant’s] mind but by the surrounding facts and 

circumstances; i.e., circumstantial evidence.’” United States v. 

Bolden, 325 F.3d 471, 494 (4th Cir. 2003) (quoting United States 

v. Larson, 581 F.2d 664, 667 (7th Cir. 1978)). In light of these 

well established principles, the Appellants’ argument lacks

merit. The jury finding that the Appellants intended to “hinder, 

delay, or prevent the communication by any person to a law 
15

enforcement officer . . . of information relating to the 

commission or possible commission of a Federal offense[,]” 18 

U.S.C. § 1512(a)(2)(C), is properly supported by circumstantial 

evidence and reasonable inferences drawn from that evidence.

Here, the Appellants learned (or strongly suspected) that 

Bunnells was cooperating with investigators. The evidence showed 

that up until that time, there was no indication that they had 

acted in an intimidating or threatening manner toward Powell.

She was a frequent and welcome visitor, purchased and used drugs 

in their presence, and often spent the night at their residence.

The sudden and immediate change in their behavior and attitude 

toward Powell after the somewhat cryptic eye-winking and veiled 

oral warnings by Bobby Faircloth during his meeting with Cedric 

Taylor reasonably sheds light on the Appellants’ intent. During 

the ensuing encounter back at the trailer, Donald Taylor stated 

emphatically within Powell’s hearing that he was willing to do 

“whatever it took” to avoid jail time. And, one man walked

around the trailer with a gun, handcuff ties, and duct tape, all 

the while stating, “all you have to do is pull the trigger, pull 

the trigger.” J.A. 310. 

In sum, the circumstantial evidence reasonably supports the 

inference that the Appellants’ actions and statements during the 

encounter with Powell were intended to motivate Powell to advise 

her uncle that his continued cooperation and communication with 
16

law enforcement about the Appellants’ drug trafficking activity 

would be dealt with violently.5

B.

Contrary to the Appellants’ 

contention, the inference of their intent was not speculative or 

irrational. We hold therefore that the government presented 

sufficient evidence to prove beyond a reasonable doubt that the 

Appellants acted “with intent to . . . hinder, delay, or prevent 

the communication by [Bunnells] to a law enforcement officer . . 

. of information relating to the commission or possible 

commission of a Federal offense.” See 18 U.S.C. § 1512(a)(2)(C). 

The district court did not err in denying the motions for 

judgment of acquittal.

Cedric Taylor contends that the district court erred when 

it admitted in evidence laboratory reports describing the 

results of drug analyses without the sponsoring testimony of the 

lab technician. He argues that admission of the lab reports 

violated his rights under the Confrontation Clause as 

interpreted by the Supreme Court in Melendez-Diaz v. 

Massachusetts, 129 S. Ct. 2527 (2009). The government argues 

that this claim has been waived by the failure of Cedric 

Taylor’s counsel to lodge a contemporaneous objection to the 

admission of the reports at trial and that this court should not 

 5 The indictment charged the Appellants with aiding and 

abetting each other in the witness tampering counts.
17

notice “plain error” in the circumstances presented. We agree 

with the government.

As there was no objection to the admission of the lab 

reports, we review this claim for plain error. See Fed.R.Crim.P. 

52(b); United States v. Olano, 507 U.S. 725, 732-35 (1993). As 

we have explained:

Under plain error review, [Appellant] must show that 

(1) the district court committed an error; (2) the 

error was plain; and (3) the error affected his 

substantial rights, i.e., that the error affected the 

outcome of the district court's proceedings. United 

States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 

123 L.Ed.2d 508 (1993); United States v. Hughes, 401 

F.3d 540, 547-48 (4th Cir. 2005). Even if [Appellant] 

makes this showing, we should only notice the error if 

the error “seriously affects the fairness, integrity 

or public reputation of judicial proceedings.” Hughes, 

401 F.3d at 555 (internal quotation marks and citation 

omitted).

United States v. Perkins, 470 F.3d 150, 155 n.7 (4th Cir. 2006). 

In this case, we have no hesitation in concluding that any 

error in the district court’s admission of the lab reports did 

not affect the outcome of the proceedings below. Cedric Taylor 

has neither argued nor ever raised any issue at trial or in the 

current appeal that the substances purchased by Bunnells from 

Donald Taylor in September and October 2006 were anything other 

than crack cocaine. Of course, Cedric Taylor was not charged 

with substantive drug violations in connection with those 

transactions. He was charged with knowing membership in a drug 

trafficking conspiracy involving more than 50 grams of crack 
18

cocaine. Consequently, Cedric Taylor’s sole claim on appeal is 

that the admission of the lab reports prejudiced his right to a 

fair trial by “documenting” that the weight of the crack cocaine 

in those transactions totaled 168.8 grams (approximately six 

ounces). See Appellants’ Br. 35 (Asserting that “admission of 

the lab reports documenting 168.8 grams of cocaine base was 

extremely prejudicial, as this was the only evidence of quantity 

which appeared to be unquestionably reliable.”); id. at 36 

(“Compared to the testimony of the assorted drug users and 

dealers, the lab report must have seemed to the jurors to be 

unimpeachable.”).

But this contention borders on the specious. The evidence 

that the multi-year drug trafficking conspiracy charged in Count 

One of the indictment involved more than a mere 50 grams of 

crack cocaine was simply overwhelming. See supra note 1. 

Furthermore, Bunnells fully described for the jury his purchases 

of crack cocaine mentioned in the lab reports using government 

funds, a total of $5,400.00 paid for approximately six and three 

quarter ounces. Bunnells testified that at the second of the two 

purchases, that of the “Big 8,” Cedric Taylor was present. In 

short, the testimonial evidence shows conclusively that Cedric 

Taylor was not prejudiced by the admission of the lab reports of 

drug analyses admitted without objection during the testimony of 

Agent Owens.
19

V.

The Appellants have raised three issues related to 

sentencing. First, each argues that the district court committed 

procedural error when it failed to explain adequately the bases 

for the sentences it imposed. Second, Donald Taylor contends 

that the court erred in failing to apply the acceptance of 

responsibility adjustment at his sentencing. Finally, both 

contend that the court erred in imposing a sentence of 240 

months on the witness tampering conviction. We address these 

assertions in turn.

A.

The Appellants argue that their sentences must be vacated 

because the district court failed to explain, consonant with our 

precedents, the bases for the sentences it imposed. The 

government counters that the district court conducted an 

individual assessment of Appellants’ cases and, in context, 

adequately set forth its reasons for its sentences. 

As we recently explained:

We have addressed claims of procedural sentencing 

error in several recent cases. Relying on Supreme 

Court guidance, we have held that for every sentencewhether above, below, or within the Guidelines range-a 

sentencing court must “place on the record an 

‘individualized assessment’ based on the particular 

facts of the case before it.” United States v. Carter, 

564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 

U.S. at 50, 128 S.Ct. 586). But we have also held that 

in explaining a sentencing decision, a court need not 

“robotically tick through § 3553(a)'s every 
20

subsection,” particularly when imposing a withinGuidelines sentence. United States v. Johnson, 445 

F.3d 339, 345 (4th Cir. 2006). “[A] major departure 

[from the Guidelines] should be supported by a more 

significant justification than a minor one,” Gall, 552 

U.S. at 50, 128 S.Ct. 586, but an individualized 

explanation must accompany every sentence. See United 

States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009); 

Carter, 564 F.3d at 330.

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).

Importantly, “in determining whether there has been an adequate 

explanation, we do not evaluate a court’s sentencing statements 

in a vacuum;” rather, “[t]he context surrounding a district 

court’s explanation may imbue it with enough content for us to 

evaluate both whether the court considered the § 3553(a) factors 

and whether it did so properly.” United States v. Montes-Pineda, 

445 F.3d 375, 381 (4th Cir. 2007). 

1.

As to Donald Taylor, the district court fully heard defense 

counsel’s arguments and allocution, and then it actually imposed 

the exact sentence that defense counsel requested: a sentence at 

the very bottom of the applicable guidelines range. Here is what 

counsel stated to the court:

I’ve talked to Mr. Taylor about this, your Honor, 

and I’m sure the court’s aware that when you start out 

with a base offense level of 38, you’re automatically 

dealing with an enormous sentence. You add some of the 

offense characteristics we’re at in this case, and, of 

course, it just goes up. I don’t know that really 

anything else kind of matters. Any sentence that the 

court would give Mr. Taylor is a phenomenal amount of 

time in jail. I would submit to the court that a 
21

sentence at the bottom of that range, still being a 

phenomenal number, would be sufficient in this case to 

address the purposes of sentencing.

J.A. 974 (emphasis added). We have reviewed the record and find 

that counsel’s request was reasonable under the circumstances. 

Although the district court said little to explain its own 

reasons for agreeing with counsel’s assessment, under the 

circumstances, that is, “in context,” not much needed saying.

Lynn, 592 F.3d at 580 (“[Appellant’s] attorney's arguments 

before the district court urged that court only to impose a 

sentence within the Guidelines range, which it did. Accordingly, 

we must affirm.”). We discern no procedural error in the 

sentencing of Donald Taylor.

2.

We reach a contrary conclusion with regard to the 

sentencing of Cedric Taylor. During Cedric Taylor’s sentencing 

hearing, the district court listened to defense counsel’s 

arguments regarding Cedric Taylor’s age, education, lack of 

criminal convictions, and his relationship with his co-defendant 

brother. Defense counsel also argued that the evidence against, 

and the apparent involvement of, Cedric Taylor, was slight in 

comparison to that of his brother. Counsel urged the district 

court to impose a ten year sentence, stating:

I would submit, your honor, that an appropriate 

sentence as to Cedric Taylor would be the mandatory 

minimum of 120 months; that the sentencing guidelines 
22

is advisory, and you're not required to give him a 

guideline sentence if the court is so inclined; that 

based on the circumstances of his life, the facts that 

were going on with his brother and his involvement in 

these offenses that he's been accountable for, that 

the mandatory minimum is the appropriate sentence and 

ask that you give him 120 months.

J.A. 956-57. At the court’s invitation, the Assistant United 

States Attorney responded to the above argument in this fashion:

[We] request, your Honor, a sentence within that 

guideline range as found applicable by the court. Of 

course, to vary downward the court must be able to 

articulate reasons for such a variance. In this case, 

the circumstances of the case rather than crying out 

for a downward departure for this defendant I think 

would do the opposite. It was a vicious case. It was a 

violent case. Under the influence of his brother or 

not, an appropriate sentence in this case would be 

that found in that advisory guideline range.

J.A. 957. Then, again at the court’s invitation, counsel for 

Cedric Taylor was given the final word, as follows:

If it was so bad, Mr. Donald Taylor was indicted 

one year before his brother Cedric was. And if the 

court can look at the file, only about a month before 

Donald Taylor comes to trial is his brother indicted 

for all of these heinous offenses that everyone had 

known about. Basically the government inserted Cedric 

Taylor's name into three or four counts of the 

indictment. If they had all this knowledge--you've 

heard the testimony of these witnesses: "I've been 

debriefed half a dozen times and I never once 

mentioned the name Cedric Taylor. "When was the first 

time you mentioned his name? "A week before when we 

were getting ready for trial." The discovery has three 

places where Cedric Taylor's name is mentioned. One is 

on the porch, one he gave a user amount of cocaine, 

and one from Crystal Powell that says Cedric delivered 

some undescript [sic] amount of cocaine. That's it. 

And now he's going to get 20 years based on these 

witnesses. One hundred and twenty (120) months is 

sufficient in Cedric Taylor's case.
23

J.A. 958. The court then offered Cedric Taylor an opportunity 

to speak and thereafter, immediately imposed a twenty year 

sentence (slightly above the very bottom of the applicable 

guidelines range of 235-293 months) as follows:

The court finds the basis for the findings 

contained in the pre-sentence report credible and 

reliable and therefore the court adopts those 

findings. Based on those findings, the court has 

calculated the imprisonment range prescribed by the 

advisory sentencing guidelines and has considered that 

range, as well as other relevant factors set forth in 

the advisory guidelines, and those set forth in 18 

United States Code, section 3553(a). Pursuant to the 

Sentencing Reform Act of 1984, it is the judgment of 

the court that Cedric Taylor is hereby committed to 

the custody of the bureau of prisons to be imprisoned 

for a term of 240 months on each count to be served 

concurrently. Upon release from imprisonment, the 

defendant shall be placed on supervised release for a 

term of five years. This term consists of a term of 

five years on count one and a term of three years on 

count four, all such terms to run concurrently.

* * * *

Inasmuch as the range exceeds 24 months, the 

court has imposed a sentence near the bottom of the 

range because there are no unaccounted for aggravating 

factors and because of the defendant's lack of 

criminal convictions.

J.A. 959-62 (emphasis added). 

As the above excerpt from the Cedric Taylor sentencing 

hearing shows, while the district court commendably allowed 

counsel a full opportunity to make vigorous arguments to aid the 

court in determining an appropriate sentence, the court never 

explicated its reasons for imposing a twenty year sentence. The 
24

court’s failure is especially striking in light of the nonspurious bases identified in detail by counsel for a variance 

sentence, to which the court never adverts. Certainly, the case 

involved facts that might warrant a sentence within the 

applicable guidelines range. Nevertheless, we are wholly unable 

to assess the reasonableness of the sentence because the 

district court failed to state the reasons for the sentence it 

imposed. 

The government’s reliance on the portion of the court’s 

statement, which we have underscored, that “the court . . . 

imposed a sentence near the bottom of the range because there 

are no unaccounted for aggravating factors and because of the 

defendant's lack of criminal convictions,” is unavailing. In 

prefacing those remarks with the statement, “[i]nasmuch as the 

range exceeds 24 months,” the court makes it clear that it is 

complying with the statutory requirement that it state “the 

reason for imposing a sentence at a particular point within the 

[guidelines] range.” 18 U.S.C. § 3553(c)(1).6

 6 Section 3553(c)(1) provides as follows:

A district court’s 

(c) Statement of reasons for imposing a sentence.—The 

court, at the time of sentencing, shall state in open 

court the reasons for its imposition of the particular 

sentence, and, if the sentence--

(1) is of the kind, and within the range, described in 

subsection (a)(4) and that range exceeds 24 months, 

the reason for imposing a sentence at a particular 

point within the range . . . .
25

explanation of its selection of a sentence within a sentencing 

guidelines range, as required by 18 U.S.C. § 3553(c)(1), may 

well provide, in an appropriate case, the “‘individualized 

assessment’ based on the particular facts of the case before 

it,” as required by Gall, 552 U.S. at 50, and Carter, 564 F.3d 

at 330. The explanation provided here, however, falls 

considerably short of that standard.

Accordingly, for the reasons set forth, we vacate the 

sentence imposed on Cedric Taylor and we remand for 

resentencing.

B.

Donald Taylor contends that, because he entered guilty 

pleas to the drug conspiracy and drug distribution counts, the 

district court erred when it refused to apply the acceptance of 

responsibility adjustment pursuant to U.S.S.G § 3E1.1(a). In his 

brief on appeal, Donald Taylor argues, in part, that the 

adjustment clearly would be warranted if this court vacates his 

conviction on the witness tampering charge. As explained above, 

we affirm that conviction. But he also contends that, even if 

the witness tampering conviction is affirmed, a two-level 

reduction in the adjusted offense level is appropriate because 

he: (1) pled guilty to all drug counts brought against him; (2) 

 

18 U.S.C. § 3553(c)(1).
26

accepted responsibility for his “drug offense-related action;” 

and (3) failed to challenge the presentence investigation 

report, which included evidence of drug weights, admitted due to 

“hearsay statements by potentially unreliable and non-credible 

co-conspirators.”

The government argues that the district court did not err 

in refusing to grant defendant an acceptance of responsibility 

adjustment, in part because the drug counts and the witness 

tampering counts were grouped in Donald Taylor’s guidelines 

calculation. We agree. The grouping of the drug counts of the 

indictment with the witness tampering count in the guidelines 

computation dictates that, though Donald Taylor pled guilty to 

the former counts, his conviction on the latter count precludes 

application of U.S.S.G. §3E1.1. United States v. Hargrove, 478 

F.3d 195, 200 (4th Cir. 2007) (“[U]nder the terms of U.S.S.G. § 

3E1.1, the defendant must . . . accept responsibility for the 

grouped guidelines counts in order to be eligible for the 

reduction in offense level for that particular 

offense.”)(internal quotations omitted); United States v. 

Garrido, --- F.3d ---, 2010 WL 653439 at *5 (9th Cir. Feb. 25, 

2010) (“We join our sister circuits in holding that, where a 

defendant accepts responsibility for all counts that are grouped 

under U.S.S.G. §§ 3D1.1-3D1.5, that defendant is eligible for 

the § 3E1.1 reduction for those counts, even if the defendant 
27

has not accepted responsibility for other counts which, under § 

3D1.1(b), are excluded from grouping.”)(citing Hargrove). Thus, 

the district court did not err in declining to apply the 

acceptance of responsibility adjustment in calculating Donald 

Taylor’s guidelines.

C.

Finally, the Appellants contend that the district court 

committed plain error when it imposed twenty year sentences on 

the witness tampering convictions under 18 U.S.C. § 

1512(a)(2)(c). Although neither defense counsel objected at 

sentencing, the government agrees that at the time the 

Appellants committed that offense in January 2007, the statutory 

maximum penalty was ten years. (Congress amended the statute in 

2008 to increase the penalty to a maximum of twenty years.) It 

is clear in the record that the district court’s imposition of a 

twenty year sentence was inadvertent. Cf. Weaver v. Graham, 450 

U.S. 24, 28 (1981) (discussing ex post facto clause); Lynce v. 

Mathis, 519 U.S. 433, 441 (1997) (same). Although there was 

extensive discussion (and agreement) among the parties and the 

magistrate judge who arraigned the Appellants that the maximum 

potential sentence was ten years on the witness tampering charge 

under § 1512(a)(2)(c), the pre-sentence investigation report 

failed to flag the change for the district judge.
28

In any event, we agree with the government that, under the 

circumstances, the error is amenable to correction as to Donald 

Taylor by a simple revision to and reissuance of the judgment 

and commitment order because the district court clearly intended 

to impose the applicable statutory maximum sentence and to run 

that sentence concurrently with the sentences on the drug 

counts. Of course, as to Cedric Taylor, we have ordered a new 

sentencing hearing. The district court shall correct its error 

as to the sentence under § 1512(a)(2)(c) in connection with the 

resentencing.

VI.

In conclusion, in appeal no. 08-5039, we affirm the 

convictions and vacate the sentence imposed on Cedric Taylor and 

remand with directions that a new sentencing hearing be held in 

accordance with the views stated herein. In appeal no. 08-5028, 

we affirm the convictions and modify the sentence imposed on 

Donald Taylor as to indictment count four and remand with 

directions that a revised judgment and commitment order be 

entered in accordance with the views stated herein. In all other 

respects, the judgments are affirmed.

AFFIRMED IN PART, VACATED IN PART,

MODIFIED IN PART, AND REMANDED