UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4851

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALAN SYLVESTER,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:04-

cr-00156-JFM)

Submitted: May 30, 2007 Decided: July 9, 2007

Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and HAMILTON,

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Fred Warren Bennett, Gary E. Bair, BENNETT & BAIR, LLP, Greenbelt,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Richard C. Kay, Assistant United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Alan Sylvester appeals his conviction and sentence for

conspiracy to possess with intent to distribute fifty grams or more

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

(2000). As a result of his conviction and prior criminal history,

Sylvester received a mandatory sentence of life in prison pursuant

to 21 U.S.C. § 841(b)(1)(A) (2000). On appeal, Sylvester contends

that: (1) the district court erred in refusing to strike a juror

for cause; (2) the district court erred by admitting testimony

regarding events outside of the period charged in the indictment;

(3) the district court plainly erred by incorrectly instructing the

jury as to the charged dates of the conspiracy; (4) his life

sentence constitutes cruel and unusual punishment under the Eighth

Amendment; and (5) the district court erred by increasing his

sentence based on prior convictions that had not been proven to the

jury beyond a reasonable doubt. Finding no error, we affirm.

I

Sylvester contends that the district court should have

dismissed juror 163 for cause after that juror disclosed that his

stepdaughter was on probation for possession of crack cocaine. A

trial judge’s decision on whether to remove a juror for cause will

not be overruled except for a “manifest abuse of discretion.”

Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir. 1989). A district

court’s determination to excuse a juror for cause is entitled to
- 3 -

“special deference.” Patton v. Yount, 467 U.S. 1025, 1038 (1984).

The critical issue in deciding a challenge for cause is whether the

juror “could be fair and impartial and decide the case on the facts

and law presented.” United States v. Capers, 61 F.3d 1100, 1105

(4th Cir. 1995). A challenge to a juror for cause is usually

limited to demonstrations of actual bias, with the doctrine of

implied bias applying only to “extreme situations” where the

circumstances make it highly unlikely that the average person could

remain impartial. United States v. Turner, 389 F.3d 111, 117 (4th

Cir. 2004).

Sylvester first argues that this court should adopt a per

se rule of disqualification when a juror or close family member has

been convicted of the same crime as the one at issue in the trial.

However, this court has noted its resistance to “manage jury

selection from the court of appeals through promulgating rules of

automatic disqualification.” Turner, 389 F.3d at 115. Sylvester

has failed to present a persuasive argument that a per se rule of

disqualification should now be crafted by this court.

Even without a per se rule, Sylvester contends it was

clear that the juror could not be impartial, as the juror was at

first unsure as to his own impartiality and there was a “very

strong likelihood of implied bias” under the circumstances.

However, this assertion is not supported by the record, as the

juror simply answered “I don’t think [so]” when the district court
- 4 -

inquired as to whether his impartiality would be affected. When

the juror was subsequently asked if he had any question as to

whether he could be fair and impartial, he unequivocally answered

“no.” In light of the juror’s answers, the district court did not

abuse its discretion in seating the juror.

II

Sylvester next asserts that the district court erred by

admitting testimony regarding criminal acts that occurred outside

of the period charged in the indictment. A district court’s

determination of the admissibility of evidence under Fed. R. Evid.

404(b) is reviewed for abuse of discretion. See United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997). Evidence of other crimes

is not admissible to prove bad character or criminal propensity.

Fed. R. Evid. 404(b). Such evidence is admissible, however, to

prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Id. Rule 404(b) is

inclusive, allowing evidence of other crimes or acts except that

which tends to prove only criminal disposition. Queen, 132 F.3d at

994-95; United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.

1988). Evidence of prior acts is admissible under Rules 404(b) and

403 if the evidence is: (1) relevant to an issue other than the

general character of the defendant, (2) necessary, (3) reliable,

and (4) if the probative value of the evidence is not substantially

outweighed by its prejudicial effect. Queen, 132 F.3d at 997.
- 5 -

At trial, Sylvester objected to testimony provided by

Kevin Miller, who stated that he had taught Sylvester how to

manufacture crack cocaine, and that he personally saw Sylvester

cook crack cocaine at some point in 2000 or 2001. The district

court allowed the testimony to be admitted into evidence,

concluding that the statements related to Sylvester’s “knowledge.”

Sylvester contends that Miller’s statements constituted evidence of

prior bad acts under Fed. R. Evid. 404(b) that were not relevant to

an element of the offense. Sylvester notes that the indictment

charged him with being involved in a drug conspiracy that occurred

between June 2002 and June 2003, but that Miller’s testimony

regarded events that occurred, at the latest, in 2001. Sylvester

contends that Miller’s testimony was not relevant or necessary to

demonstrate knowledge, and that, in fact, knowledge was not in

dispute.

Despite Sylvester’s claim that knowledge was not disputed

in this case, there is no evidence in the record to support such an

assertion. Knowledge and intent are “clearly elements which the

prosecution must establish to prove a conspiracy to violate 21

U.S.C. § 841(a)(1),” and Sylvester placed these elements at issue

by entering a plea of not guilty. United States v. Mark, 943 F.2d

444, 448 (4th Cir. 1991). Additionally, the extrinsic act evidence

was relevant to the charged offense. Miller’s testimony

corroborated the accounts provided by other witnesses and was
*Sylvester also claims that he was unfairly prejudiced by the

admission of this testimony, as there was no limiting instruction

and the district court incorrectly stated during jury instructions

that the conspiracy was charged as having begun in June 2000.

While the district court does not appear to have given a limiting

instruction, the court did tell the jury in its closing

instructions that Sylvester was “not on trial for any act or

conduct not alleged in the indictment.” Additionally, as explained

infra, the district court’s misstatement as to the dates of the

conspiracy does not amount to plain error, and any prejudice that

did result has not been shown to outweigh the probative value of

Miller’s testimony.

- 6 -

directly relevant to Sylvester’s knowledge regarding the

manufacturing of crack cocaine for sale, which was an integral

element of the conspiracy charge in this case. See Mark, 943 F.2d

at 448; see also United States v. Hodge, 354 F.3d 305, 312 (4th

Cir. 2004). We conclude that the evidence was both relevant and

necessary, and the district court did not err in admitting the

testimony under Rule 404(b).*

III

On appeal, Sylvester challenges for the first time the

district court’s instructions to the jury at the close of his case

regarding the length of the conspiracy. The court erroneously

stated that the charged conspiracy was alleged “to have lasted at

least from [o]n or about June 2000 and continuously thereafter up

to and including June 2003.” When no objection is made to a jury

instruction, this court reviews the claim for plain error. Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993). Four conditions must be met before this court will notice
- 7 -

plain error: (1) there must be error; (2) it must be plain under

current law; (3) it must affect substantial rights, typically

meaning the defendant is prejudiced by the error in that it

affected the outcome of the proceedings; and (4) the error

seriously affected the fairness, integrity, or public reputation of

judicial proceedings. Id. at 733-37.

Both Sylvester and the Government agree that while no

objection was lodged at the time of the instructions, there was an

error by the trial court. However, Sylvester has failed to carry

his burden in demonstrating that this error affected the outcome of

the proceedings. Olano, 507 U.S. at 734. The court provided the

jury with a copy of the indictment that provided the correct dates,

and the jury was given accurate information as to the temporal

scope of the conspiracy at other points during the trial.

Therefore, Sylvester has failed to demonstrate that the district

court plainly erred by its isolated misstatement regarding the

relevant dates of the conspiracy.

IV

Sylvester argues that his sentence of life imprisonment

without the possibility of parole under 21 U.S.C. § 841(b)(1)(A)

violated his Eighth Amendment right against cruel and unusual

punishment. In determining whether a sentence is proportional to

the offense, three factors are considered: (1) the gravity of the

offense and the harshness of the penalty, (2) the sentences imposed
- 8 -

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) (quoting

Solem v. Helm, 463 U.S. 277, 292 (1983)).

Despite Sylvester’s arguments to the contrary, we find

that his sentence is not constitutionally disproportionate.

Sylvester was not simply a drug user, but rather was part of an

interstate drug distribution network that brought cocaine in from

New York in order to produce crack cocaine for sale in Maryland.

Additionally, Sylvester received a mandatory life sentence not only

because of the large drug quantity involved, but also because he

was a repeat offender, with two prior felony drug convictions on

his record. Based on these factors, Sylvester was subject to a

mandatory life sentence; however, “the mere fact that the life

sentence was mandatorily imposed does not render it ‘cruel and

unusual.’” Kratsas, 45 F.3d at 69. As to the second and third

prongs of the Solem test, this court has previously held that a

life sentence for a major drug violation is not disproportionate in

comparison with other sentences under the Guidelines or sentences

imposed by states within this Circuit. See id. at 68; see also

United States v. D’Anjou, 16 F.3d 604, 613 (4th Cir. 1994).

Therefore, we find that Sylvester’s sentence is not

constitutionally disproportionate to his crimes.
- 9 -

V

Sylvester’s final argument is that the district court

violated his Sixth Amendment rights by basing his sentence on prior

convictions that were not determined by the jury beyond a

reasonable doubt. However, the fact of a prior conviction need not

be proven beyond a reasonable doubt. Almendarez-Torres v. United

States, 523 U.S. 224, 233-36, 243-44 (1998); United States v.

Cheek, 415 F.3d 349, 351-54 (4th Cir.) (reaffirming continuing

validity of Almendarez-Torres after United States v. Booker, 543

U.S. 220 (2005)), cert. denied, 126 S. Ct. 640 (2005).

Additionally, this court has ruled that the nature and occasion of

prior offenses are facts inherent in the convictions and that the

government is not required to allege prior convictions in the

indictment or submit proof of them to a jury. See United States v.

Thompson, 421 F.3d 278, 285-87 (4th Cir. 2005). Therefore, we hold

that the district court did not err in using Sylvester’s prior

convictions in calculating his sentence.

Accordingly, we affirm Sylvester’s conviction and

sentence. 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