UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4907

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DERRICK ANTHONY TIMMONS, a/k/a Red,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonie M. Brinkema, District

Judge. (CR-05-19)

Argued: March 16, 2007 Decided: May 1, 2007

Before WILLIAMS, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the opinion,

in which Judge Williams and Judge King concurred.

ARGUED: Alan Hideto Yamamoto, Alexandria, Virginia, for Appellant.

Owen Matthew Kendler, Special Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, G.

David Hackney, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

The facts are presented in the light most favorable to the

government. See United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997) (recounting the standard governing appellate review of

a challenge to the sufficiency of the evidence to support a

conviction).

2

DUNCAN, Circuit Judge:

Appellant Derrick Anthony Timmons (“Timmons”) was charged

together with Preston Cornelius Everett (“Everett”) in a two-count

superseding indictment for conspiracy to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 846, and for possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). Just prior to the beginning of Timmons’s and Everett’s

joint trial, Timmons’s counsel was dismissed because of a conflict

of interest. The trials were severed to allow Timmons an

opportunity to obtain court-appointed trial counsel. A jury

convicted Timmons of both counts, and the district court sentenced

him to 300 months’ imprisonment, 10 years’ supervised release, and

a $200 special assessment. Timmons now appeals his convictions and

his sentence. For the reasons discussed below, we affirm.

I.

According to the evidence adduced at trial,1

 the charged

conspiracy began in 2003 when Timmons and Everett began purchasing

cocaine from Adrian Adkins (“Adkins”). Adkins testified that he

had supervised eight drug deliveries from “Chico,” a supplier in
3

Texas, to Timmons and Everett in Virginia. Early in the

conspiracy, the three would hide the cocaine in Everett’s house

while Timmons and Everett arranged for its resale. Following an

altercation between Everett and his girlfriend involving the use of

firearms, Chico directed the three to begin storing the cocaine in

Timmons’s house. Adkins also testified that he witnessed Timmons

cutting the cocaine into smaller units for resale. Finally, Adkins

and another supervisor known as “Primo” would allow Timmons and

Everett to distribute the cocaine piecemeal on credit, paying for

each portion before receiving the next to sell.

The Drug Enforcement Administration (the “DEA”) infiltrated

Chico’s drug ring when a Confidential Informant (the “CI”) was

hired to transport cocaine from Chico to Adkins. In mid-October,

2004, a man calling himself “Mario” called the CI and asked him to

drive an automobile containing a shipment of cocaine from Dallas,

Texas to Virginia. The CI met Primo in a parking lot in Dallas,

where he received cash, a telephone, and an automobile. The

numbers of Mario, Primo, and Chico were stored in the telephone’s

contacts list. Before driving the vehicle to Virginia, the CI met

with DEA officials, who searched the vehicle and found eleven

kilograms of cocaine hidden inside. During the CI’s drive to

Virginia, Mario called and directed him to rent a hotel room at a

particular Best Western location in Virginia. Around that time,

Chico directed Adkins to meet the CI at the Best Western to pick up
2Timmons owed either $5,000 or $15,000 for the past shipment,

but Adkins could not recall which number Chico specified during the

telephone conversation.

4

the vehicle. Chico asked Adkins to deliver the cocaine to Timmons

and Everett, to collect payment they owed on a past cocaine

shipment,2

 and to send the car back with the money via the CI.

Adkins was arrested by DEA agents at the Best Western after he

completed the transaction with the CI. After meeting with the

agents, Adkins agreed to cooperate. At the agents’ behest, Adkins

called both Everett and Timmons, arranging to meet the former at

the Best Western and the latter at an Econo Lodge. During the

call, Adkins and Timmons discussed Timmons’s drug debt to Chico,

with Timmons promising, “We can count it up and everything,” J.A.

182. Timmons also inquired about the arrival of the new shipment

of cocaine, “Um, everything good?”, J.A. 181. These calls were

recorded by the agents. Adkins offered to the agents physical

descriptions of Everett and Timmons and descriptions of the make,

model, and color of the automobile each would be driving. Adkins

explained that Everett and Timmons would be carrying large sums of

cash and that Everett would be armed as usual, especially because

he had recently been shot in the leg.

Timmons arrived in the described vehicle at the Econo Lodge

that evening, and was arrested by county drug task force members

upon exiting the car. The officers found approximately $1,000 on

Timmons’s person. Shortly thereafter, a county detective drove
3

These are replicas of certain jerseys worn by NFL players

that display outdated designs and color schemes.

5

Timmons’s vehicle to the Best Western, a seve– to ten-minute drive.

The county detective transferred control of the vehicle to a DEA

agent, who then searched it. The DEA officer found about $20,000

in cash wrapped in rubber bands. He also found a digital scale in

the center console with a white powdery substance on it.

A few hours later, Everett arrived at the Best Western in a

vehicle with two other persons. Everett was in the back seat, and

a .45-caliber pistol was in the seat pocket in front of him.

Everett was arrested and his cell phone, $600 in cash, and an ounce

of cocaine were confiscated from his person. The phone had stored

Adkins's and Timmons's numbers in the recent-calls list. A search

of the vehicle revealed the firearm and $14,000 in cash.

Timmons and his girlfriend Tamara Yvette Simmons (“Simmons”)

testified at trial as to an alternative explanation for the

physical evidence and the events surrounding his arrest. Timmons

claimed that he was starting a courier business with Simmons, and

that he was carrying such large amounts of cash upon arrest because

he and Simmons were planning on buying two vehicles for the new

business from a car lot across the street from the Econo Lodge. He

also admitted to being in business with Adkins, but insisted the

business was one to sell National Football League (“NFL”)

“throwback” jerseys.3 Timmons explained that, during his telephone
6

conversations with Adkins that day, Timmons did not arrange for a

meeting with Adkins but simply informed him as to his whereabouts

for the evening. Timmons also explained that he was referring to

throwback jerseys when he said, “We can count it up and

everything.” Timmons testified that $15,000 of his cash came from

an uncle in New York who had just received a severance check of

about $19,000. Timmons claimed that he used the digital scale to

aid in his personal consumption of cocaine. Finally, Timmons

testified that he did not know that Everett would be carrying a gun

on the night of his arrest.

To rebut Timmons’s account, the government introduced the

testimony of Wendell Tyrone Ford (“Ford”), a member of a previous

and uncharged drug-trafficking conspiracy with Timmons and Everett.

Ford testified that he sold powder and crack cocaine to Timmons and

Everett for resale over a period of several months in 2000 and

2001. Ford testified that Timmons was a “frequent and reliable

customer,” J.A. 581, who would resell the drugs in Timmons’s

apartment complex. Ford also testified that he noticed Everett in

possession of a .45-caliber firearm during one drug transaction.

While the trial was proceeding, one juror wrote a letter to

the district court judge asking her to forward to Timmons a letter

dealing “strictly [with] personal matters outside of this case”

along with a Bible. J.A. 780. The letter to Timmons contained

quotations from the Bible and a summary of the central tenets of
7

Christianity, including the sinfulness of all persons, J.A. 782

(“All of us are guilty before God”), the attendant unworthiness of

man, id. (“The sin needs to be punished”), and the atoning

interposition of Jesus, id. (“[God] bridged the gap that our sin

created by sending . . . Jesus”). The letter indicated that its

“sole purpose” was “to tell [Timmons] that God loves [him],” and

that its author wrote it “with an open mind of the outcome” of the

case. J.A. 781.

After the close of evidence but before the jury’s

deliberations, Timmons moved to reopen his case to introduce a

faxed copy of his uncle’s cancelled severance check for $19,000

that was the alleged source of $15,000 of the cash in Timmons’s

possession upon his arrest. The district court declined to reopen

the case because there was insufficient justification for the delay

in procuring the evidence.

The jury returned a guilty verdict on both counts.

Immediately after the verdict was read, the district court

conducted a voir dire of the juror who had written the letter to

determine whether her religious views improperly biased her or any

other juror. The juror stated that she had asked her fellow church

members to pray for Timmons, though not by name, and that her

religious beliefs did not influence her decisions in the case. She

insisted that the “sin [that] needs to be punished” mentioned in

her letter was original sin, not a characterization of Timmons’s
4

This argument was abandoned on appeal.

8

particular actions revealed during the trial. She also stated that

she showed the letter to another juror on the last day of trial.

The district court then conducted a separate voir dire of the juror

who had read the letter, who told the court that neither the letter

nor the conversation influenced her decisions. The district court

finally conducted a voir dire with the entire jury, questioning the

Foreperson and the jury en masse as to whether any juror’s

religious views were discussed during deliberations and whether any

other juror was made aware of the letter. Because the Foreperson

answered in the negative, and because the district court found no

bias or prejudice, the court entered the verdicts and denied

Timmons’s later motion for a new trial based on juror misconduct.

Finally, prior to sentencing, the government filed an

information pursuant to 21 U.S.C. § 851(a) indicating that Timmons

previously had been convicted of a narcotics offense. Timmons

filed a written response to the information, contending that it

would be constitutional error to enhance his mandatory minimum

sentence based on the prior conviction because there was

insufficient proof that Timmons had counsel during the prior

proceedings.4

 The district court rejected Timmons’s argument and

imposed the mandatory minimum sentence of 300 months’ imprisonment

for the two counts.
9

Timmons timely appealed, raising several arguments. We

discuss each in turn.

II.

Timmons first argues that there was insufficient evidence to

support his conviction on either count. A jury verdict must be

sustained against such a challenge if “there is substantial

evidence, taking the view most favorable to the Government, to

support it.” Beidler, 110 F.3d at 1067 (internal quotations

omitted). We first discuss the evidence supporting the conspiracy

count, then that supporting the firearm possession count.

A.

To prove conspiracy to possess cocaine with intent to

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

government “must establish that: (1) an agreement to possess

cocaine with intent to distribute existed between two or more

persons; (2) the defendant knew of the conspiracy; and (3) the

defendant knowingly and voluntarily became a part of this

conspiracy.” United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996).

Timmons contends that the evidence showed only that he and

Adkins shared a buyer-seller relationship, not “an agreement to

possess cocaine with intent to distribute,” id. Viewing the

evidence in the light most favorable to the government, we find
10

substantial evidence to support a finding that Timmons’s

involvement went beyond that of a buyer. Adkins specifically

testified as to his and Timmons’s involvement with Chico, including

Chico’s orchestrating the details of the distribution of the

cocaine in Virginia and choosing the house in which the drugs

should be stored pending resale. Adkins’s testimony that Timmons

was slated to purchase and resell several kilograms of cocaine, as

he had done several times before, is also inconsistent with

personal use. See United States v. Brown, 332 F.3d 363, 373 (6th

Cir. 2003) (“[E]vidence of repeat purchases provides evidence of

more than a mere buyer-seller relationship.”); United States v.

Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986) (“A large volume of

narcotics creates an inference of a conspiracy.”).

Timmons also argues that even if an agreement to distribute

cocaine existed, no legal conspiracy arose because Adkins was

acting as a government agent on the night of Timmons’s arrest.

This argument misunderstands the nature of the charged conspiracy.

The conspiracy was not, as Timmons suggests, a one-time agreement

to distribute the eleven kilograms of cocaine in the instant

shipment. It was, rather, a long-term association among Adkins,

Chico, Everett and Timmons to distribute cocaine, in furtherance of

which this shipment was the eighth such delivery. The conspiracy,

then, clearly predated Adkins’s capture by law enforcement.

Furthermore, even if Adkins was a government agent during the
5

Timmons also attacks on appeal the credibility of Adkins and

Ford. However, “[t]he jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence presented.” United States v. Murphy, 35 F.3d 143, 148

(4th Cir. 1994). We find no reason to disturb the jury’s

credibility determinations here.

11

conspiracy, Chico and Everett were not. Thus, the agreement

“existed between two or more persons,” Burgos, 94 F.3d at 857, and

is an adequate predicate for a conspiracy charge.5

B.

Timmons also challenges the sufficiency of the evidence to

support his firearm conviction under 18 U.S.C. § 924(c). Indeed,

no evidence was presented to show that Timmons personally possessed

a firearm in furtherance of the conspiracy. The government

nevertheless argues that Timmons bears responsibility for Everett’s

possession of a firearm on the night of the arrests under the rule

articulated in Pinkerton v. United States, 328 U.S. 640, 645

(1946).

A conspirator “may be convicted of substantive offenses

committed by co-conspirators in the course of and in furtherance of

the conspiracy.” United States v. Chorman, 910 F.2d 102, 111 (4th

Cir. 1990) (describing so-called Pinkerton liability). In

particular, “[a] defendant may be convicted of a § 924(c) charge on

the basis of a coconspirator’s use of a gun if the use was in

furtherance of the conspiracy and was reasonably foreseeable to the

defendant.” United States v. Wilson, 135 F.3d 291, 305 (4th Cir.
12

1998). Timmons contends that Pinkerton liability may not attach

here because Everett’s use of the firearm was not in furtherance of

the conspiracy and was not foreseeable to Timmons.

Timmons argues that Everett carried his firearm on the night

of the arrests for personal protection, not to further the

conspiracy. To support his contention, Timmons points to the fact

that Everett had been shot shortly before the arrests. There was

evidence before the jury, however, that Everett was carrying over

$14,000 in cash and intended to leave the Best Western with large

quantities of cocaine for resale. The jury reasonably could have

inferred that Everett carried the firearm to protect the cash and

cocaine. “[I]f the evidence supports different, reasonable

interpretations, the jury decides which interpretation to believe.”

Murphy, 35 F.3d at 148. We decline to intrude upon the province of

the jury and conclude that the jury reasonably found that Everett

carried the firearm in furtherance of the conspiracy.

Timmons also argues that he could not reasonably have foreseen

that Everett would carry a firearm in furtherance of the

conspiracy. Adkins and Ford, however, both testified that they

knew that Everett had carried a firearm during past drug

transactions. Adkins and Timmons also testified that they knew

that Everett had recently been shot. Finally, Adkins and a DEA

agent both testified to the prevalence of firearm-use in the drug

trade. We find this aggregated evidence to be more than sufficient
13

to support the jury’s finding that Timmons could reasonably have

foreseen that Everett would use a firearm in furtherance of the

conspiracy.

In sum, because “[r]eversal for insufficient evidence is

reserved for the rare case where the prosecution’s failure is

clear,” Beidler, 110 F.3d at 1067 (internal quotations omitted),

and the government presented “substantial evidence . . . to

support” the jury verdict here, id., we reject Timmons’s challenge

to the sufficiency of the evidence to support his convictions.

III.

Timmons next argues that the search of his automobile after

his arrest violated his Fourth Amendment right to be free from

unreasonable searches and seizures, and that the district court

therefore erred in denying his motion to suppress the evidence

obtained from the search. “In considering a ruling on a motion to

suppress, we review conclusions of law de novo and underlying

factual findings for clear error.” United States v. Buckner, 473

F.3d 551, 553 (4th Cir. 2007) (emphasis omitted).

“The Fourth Amendment generally requires police to secure a

warrant before conducting a search.” Maryland v. Dyson, 527 U.S.

465, 466 (1999). Any evidence obtained in violation of the Fourth

Amendment may be suppressed under the exclusionary rule. United

States v. Perez, 393 F.3d 457, 460 (4th Cir. 2004). A warrantless
14

search is nevertheless valid, and the evidence obtained from the

search admissible, if the search “‘falls within one of the narrow

and well-delineated exceptions’ to the Fourth Amendment’s warrant

requirement.” United States v. Currence, 446 F.3d 554, 556 (4th

Cir. 2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13

(1999)).

One such exception is that allowing a warrantless automobile

search incident to arrest. See New York v. Belton, 453 U.S. 454,

460 (1981). Timmons argues at length that the circumstances of the

instant search do not fit the confines of the Belton exception. We

need not consider the applicability of Belton to these facts,

however, because we find that a separate exception--allowing a

warrantless search of an automobile with probable cause--remedies

the absence of a warrant.

Under the so-called “automobile exception” to the warrant

requirement, a finding of probable cause that a vehicle contains

contraband alone allows a warrantless search of the vehicle.

Dyson, 527 U.S. at 467. This court recently applied this exception

to facts not meaningfully distinguishable from those surrounding

Timmons’s arrest. See United States v. Dickey-Bey, 393 F.3d 449,

456-57 (4th Cir. 2004).

In Dickey-Bey, the defendant was arrested as he picked up a

package containing cocaine from a local Mailboxes, Etc. store. Id.

at 450. The arresting officer confirmed that the defendant’s
15

physical description matched that of the person who regularly

picked up packages from the mailbox in question. Id. at 452.

Because the package was known to contain drugs, the defendant had

acted suspiciously in the parking lot before picking up the

package, and the defendant had been seen picking up similar

packages in the past, the court held that the arresting officers

had probable cause to believe that the automobile “was an

instrumentality of the crime.” Id. at 456-57. As such, the

warrantless search was held to be permissible under the automobile

exception. Id. at 457. The court noted that it “need not . . .

decide whether the search of [the] automobile was properly incident

to his arrest” because it instead found that the automobile

exception applied. Id. at 456.

As in Dickey-Bey, the searching officer here had probable

cause to believe that Timmons’s automobile “was an instrumentality

of the crime” of conspiracy to possess cocaine with intent to

distribute. See id. at 457. Adkins had offered a physical

description of Timmons and of the automobile he would be driving on

the night of his arrest. He had also indicated that Timmons would

be carrying a large sum of cash to repay his debt to Chico for a

prior shipment. Finally, Adkins explained that Timmons planned to

leave the hotel with a quantity of cocaine for resale. This

information, known to the arresting and searching officers,

constituted probable cause to believe that Timmons’s automobile was
16

“an instrumentality of the crime” of conspiracy. Therefore, we

find that the warrantless search of Timmons’s automobile was valid

under the automobile exception to the warrant requirement.

IV.

Next, Timmons contends that the district court abused its

discretion in two respects: first, in allowing the jury verdict to

stand even though a juror expressed strongly held religious beliefs

about sin and punishment, and second, in declining to allow him to

reopen his case to introduce further evidence. We discuss each

argument in turn.

A.

Timmons argues that the district court erred by not granting

his motion for a mistrial based on the conduct of the authoring

juror. We review for abuse of discretion the denial of a motion

for a mistrial based on allegations of juror misconduct. United

States v. O’Neal, 180 F.3d 115, 118 (4th Cir. 1999).

Timmons’s counsel conceded at oral argument that the district

court did not err in its response to receiving the letter from the

juror--that is, in separately conducting a voir dire of her, the

juror to whom the letter was shown, and then the entire jury.

Instead, Timmons insists that the proffered letter revealed on its

face that the authoring juror was impermissibly biased against
17

Timmons and that no amount of process could be sufficient to rebut

the clear implication of the letter’s text.

Timmons does not cite any authority for his suggested rule

that would find per se bias in the juror’s conduct. On the

contrary, the letter itself contains statements that tend to

disprove any bias. See, e.g., J.A. 781 (indicating that the “sole

purpose” of the letter was “to tell [Timmons] that God loves

[him],” and that its author wrote it “with an open mind of the

outcome” of the case); id. (stating that “God loves you.

Regardless if you are found innocent or guilty in this courtroom”).

Even if the letter could be read to reflect a possible bias against

Timmons, the existence or nonexistence of bias was appropriately

probed by the procedures employed by the district court--procedures

Timmons himself conceded were proper. We therefore cannot say that

the district court abused its discretion in denying Timmons’s

motion for a mistrial based on juror misconduct.

B.

Timmons also contends that the district court erred by

declining to allow Timmons to reopen his case to introduce into

evidence a faxed copy of his uncle’s cancelled severance check. We

review for abuse of discretion a district court’s refusal to reopen

a case to allow new evidence. United States v. Abbas, 74 F.3d 506,

510-11 (4th Cir. 1996). In conducting such a review,

we examine (1) whether the party moving to reopen

provided a reasonable explanation for failing to present
6

We also question whether Timmons could satisfy the second

Abbas factor, considering the number of inferential steps required

18

the evidence in its case-in-chief; (2) whether the

evidence was relevant, admissible, or helpful to the

jury; and (3) whether reopening the case would have

infused the evidence with distorted importance,

prejudiced the opposing party's case, or precluded the

opposing party from meeting the evidence.

Id. at 511. The party that sought to introduce new evidence must

establish all three factors to prevail on appeal. Id.

Focusing on the first factor, Timmons’s counsel explained to

the district court that he had been appointed only a month before

the trial after Timmons’s first attorney was removed because of the

discovery of a conflict of interest. Due to the late change in

representation, Timmons argued, he did not have sufficient time to

recover a copy of the cancelled check. The district court rejected

this explanation, finding that there should have been “no

surprises” about the primary issues in the trial, especially

considering that the check’s pertinence “came from [Timmons’s] side

of the podium, not the government’s.” See J.A. 634, 36. Indeed,

the copy of the check was relevant, if at all, in connection with

Timmons’s primary defense--that he borrowed the large sums of cash

(as opposed to receiving them from drug deals) and was planning on

purchasing automobiles (as opposed to more drugs for resale). See

J.A. 634. The court concluded that “there’s really no reason why

there would not have been documentation that could have been timely

provided.” J.A. 635.6
to connect a copy of the uncle’s cancelled check from New York to

wads of twenty-dollar bills in the back of Timmons’s vehicle in

Virginia.

19

As the district court aptly noted, “This case could go on

forever. The same way overnight, the government could come in with

[further supporting evidence]. . . . [T]here’s a point of finality

here.” J.A. 634. Because Timmons did not proffer a satisfactory

explanation for the delay in producing the evidence, we find that

the district court did not abuse its discretion in declining to

allow Timmons to reopen his case.

V.

Finally, Timmons argues that by failing to afford him a socalled § 851(b) colloquy, the district court erred and his sentence

must be vacated. Timmons failed to raise this issue before the

district court, and we therefore review for plain error. United

States v. Ellis, 326 F.3d 593, 598 (4th Cir. 2003).

Whenever the government seeks to enhance a defendant’s

sentence by virtue of a prior conviction, it is required to “file[]

an information with the court . . . stating in writing the previous

convictions to be relied upon.” 21 U.S.C. § 851(a)(1). Section

§ 851(b) operates in tandem with § 851(a), providing that once a

§ 851(a) information has been filed,

the court shall after conviction but before pronouncement

of sentence inquire of the person with respect to whom

the information was filed whether he affirms or denies
20

that he has been previously convicted as alleged in the

information, and shall inform him that any challenge to

a prior conviction which is not made before sentence is

imposed may not thereafter be raised to attack the

sentence.

§ 851(b). In addition, if the defendant “denies any allegation of

the information . . . , or claims that any conviction alleged is

invalid, he shall file a written response to the information.”

§ 851(c)(1).

Here, the government filed a § 851(a) information forecasting

that it would seek an enhanced sentence based on Timmons’s prior

felony conviction for possession of cocaine with intent to

distribute. The government concedes, however, that the district

court neither “inquire[d] of [Timmons] whether he affirm[ed] or

denie[d]” the prior conviction nor “inform[ed] him that any

challenge to [the] prior conviction which [wa]s not made before

sentence [wa]s imposed may not thereafter be raised to attack the

sentence.” See § 851(b). Nevertheless, the government argues that

“the substantive protections underlying that subsection were

provided to [Timmons] in this case,” United States v. Campbell, 980

F.2d 245, 252 (4th Cir. 1992).

In Campbell, as here, the government filed a § 851(a)

information, but the district court never conducted a § 851(b)

“colloquy in which [it] specifically addressed each of the issues”

listed. 980 F.2d at 252. The court identified the purpose of

§ 851(b) as “provid[ing] the defendant with a full and fair
7In his pro se brief, Timmons also contends that he was denied

effective assistance of counsel in violation of the Sixth

Amendment. He argues that his trial counsel was constitutionally

deficient in failing to insist that the questions of the amount and

type of drugs possessed be submitted to the jury. See United

States v. Milam, 443 F.3d 382, 387 (4th Cir. 2006). Both questions

were in fact, however, submitted to the jury and answered on the

21

opportunity to establish that he is not the previously convicted

individual or that the conviction is an inappropriate basis for

enhancement under section 841.” Id. Because the defendant filed

a § 851(c) motion “argu[ing] that the conviction did not qualify

for sentencing enhancement purposes,” he must have “appreciated his

right to challenge the state conviction.” Id. The district

court’s subsequent “lengthy hearing on th[e] issue” raised by the

defendant, the Campbell court held, effectively afforded him the

procedural protections of § 851(b). Id.

Similarly, here, Timmons filed a § 851(c) motion in which he

“argued that the conviction did not qualify for sentencing

enhancement purposes,” id., because there was insufficient evidence

that he was represented by counsel at the time of the conviction.

As in Campbell, the district court here held a “lengthy hearing on

this issue,” id., ultimately ruling against Timmons’s challenge.

Because Timmons’s argument is thus similar in all relevant respects

to that rejected in Campbell, we likewise find that Timmons

“appreciated his right to challenge the state conviction” and

“conclude that the substantive protections underlying that

subsection were provided to [Timmons] in this case,” Id.7
verdict form. Timmons also argues that his sentence should not

have been enhanced for obstruction of justice when such a charge

was neither included in his indictment nor submitted to the jury.

Such judicial fact-finding cannot be error, however, because the

district court imposed the statutory minimum sentence for each

conviction. See United States v. Burgess, 478 F.3d 658, 661 n.2

(4th Cir. 2007).

22

VI.

For the foregoing reasons, Timmons’s convictions and sentence

are

AFFIRMED.