United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2989

___________

United States of America, *

*

Appellee, *

*

 v. *

*

Ferris Lavelle Lee, *

also known as Vito, *

* 

Appellant. *

___________

Appeals from the United States

No. 10-2990 District Court for the 

___________ District of North Dakota.

United States of America, *

*

Appellee, *

*

 v. *

*

Maurice M. Forest, *

* 

Appellant. *
___________

No. 10-2992

___________

United States of America, *

*

Appellee, *

*

 v. *

*

Marcus Jermaine Royston, *

also known as BD, *

* 

Appellant. *

___________

Submitted: January 10, 2012

Filed: August 2, 2012

___________

Before RILEY, Chief Judge, SHEPHERD, Circuit Judge, and WEBBER, District 1

Judge.

___________

RILEY, Chief Judge.

A jury convicted Ferris Lavelle Lee, Maurice M. Forest, and Marcus Jermaine

Royston (collectively, appellants) of various drug-related offenses. The district court

sentenced Lee to 540 months imprisonment, Forest to a statutorymandatoryminimum

120 months imprisonment, and Royston to a statutory mandatory minimum life

sentence. On appeal, the appellants raise numerous challenges to their convictions,

The Honorable E. Richard Webber, United States District Judge for the

1

Eastern District of Missouri, sitting by designation.

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and Forest and Royston challenge their sentences. We affirm in part and reverse in

part, vacating Forest’s and Royston’s sentences and remanding for resentencing.

I. BACKGROUND

A. Facts2

Lee, along with Jake Northern, oversaw a conspiracy to distribute cocaine and

cocaine base in North Dakota and South Dakota. Lee and Northern repeatedly 3

purchased cocaine from two Minnesota sources, one being Royston, and directed the

sale of the drugs in Sioux Falls, South Dakota, and Bismarck and Fargo, North

Dakota. Royston eventually moved to Fargo, where he sold cocaine for the

organization. Forest operated in Bismarck, where he provided security, collected

money, and sold cocaine for the organization. 

 

In December 2008, Tara Bauer, who helped the organization sell cocaine in

Bismarck, informed local authorities about the organization. Bauer acted further as

a confidential informant and participated in controlled buys on behalf of the

authorities. Other confidential informants made numerous controlled buys from the

organization in both Bismarck and Fargo. Each appellant was present and involved

in at least one controlled buy.

B. Procedural History

In December 2009, a grand jury indicted the appellants and five other alleged

co-conspirators in a fourteen-count indictment. Count One charged appellants with

conspiring to possess with intent to distribute and distributing more than fifty grams

We present the facts in the light most favorable to the jury verdict. See United

2

States v. Meeks, 639 F.3d 522, 525 (8th Cir. 2011). 

The government produced evidence the organization sold both cocaine and

3

cocaine base. Except where the legal distinction is relevant, we generally refer to the

drugs sold as cocaine.

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of cocaine base, and more than 500 grams of a mixture and substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 18

U.S.C. § 2. Counts Two through Twelve charged Lee with distributing, or aiding and

abetting the distribution of a controlled substance—either cocaine base or a mixture

or substance containing cocaine—in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2. The indictment charged Forest (Count Eleven) and Royston (Count Twelve) with

one count each of distributing and aiding and abetting the distribution of a controlled

substance. Count Thirteen charged Lee with employing or using a minor in a drug

4

operation, in violation of 21 U.S.C. § 861(a)(1), (c), and (d), and 18 U.S.C. § 2. Count

Fourteen charged Lee with engaging in a continuing criminal enterprise in violation

of 21 U.S.C. § 848(a) and (c). 

In May 2010, the district court presided over a thirteen-day trial. The

government presented testimony from law enforcement officers, drug analysts, coconspirators, confidential informants and individuals who either sold drugs for or

bought drugs from the organization.

The jury returned a verdict finding all of the appellants guilty of the conspiracy5

and distribution charges. As to the conspiracy, the jury found (1) Lee’s participation 6

involved more than fifty grams of a mixture and substance containing cocaine base

The indictment also charged Forest in Count Ten, but this charge against him

4

was dropped. 

The jury found the appellants guilty both of conspiring to distribute controlled 5

substances and aiding and abetting the conspiracy. 

On Counts Two, Three, Four, Six and Seven, the jury convicted Lee only for

6

aiding and abetting the distribution of a controlled substance. On Counts Five, Eight,

Nine, Ten, Eleven and Twelve, the jury convicted Lee for both distribution of a

controlled substance and aiding and abetting the distribution of a controlled

substance. The convictions of Forest and Royston were both for distribution and

aiding and abetting the distribution of controlled substances. 

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and more than 500 grams of a mixture and substance containing cocaine; (2)

Royston’s participation in the conspiracy involved more than fifty grams of a mixture

and substance containing cocaine base; and (3) Forest aided and abetted a conspiracy

to distribute more than fifty grams of a mixture and substance containing cocaine base. 

The jury also found Lee guilty of engaging in a continuing criminal enterprise, but not

guilty of employing or using a minor to distribute a controlled substance. 

On August 3, 2010, the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124

Stat. 2372 (FSA), became effective. As relevant here, the FSA amended 21 U.S.C.

§ 841(b)(1)(A)(iii) to increase from fifty to 280 grams the quantity of mixture

containing cocaine base necessary to trigger statutory minimum and maximum

sentences. 

After denying the appellants’ post-conviction motions, see Fed. R. Crim. P. 29

and 33, the district court entered judgment on August 31, 2010. Determining the FSA

was not retroactive and thus inapplicable, the district court sentenced (1) Lee to 540

months imprisonment for his continuing criminal enterprise conviction, to run

concurrently with lesser sentences for his distribution convictions; (2) Forest to a

7

statutory mandatory minimum sentence of 120 months for conspiracy, to run

concurrently with a lesser sentence for distribution; and (3) Royston to a mandatory

minimum sentence of life imprisonment for conspiracy, because he was a career

offender who had previously been convicted of two felony charges, and the jury

determined the quantity of cocaine base involved in this conviction was more than

fifty grams. The appellants filed timely notices of appeal. 

The district court vacated Lee’s conspiracy conviction after determining the 7

conviction was a lesser-included-offense of his continuing criminal enterprise

conviction, and only one punishment was allowed for these two counts of conviction.

See Rutledge v. United States, 517 U.S. 292, 307 (1996).

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II. DISCUSSION

All of the appellants challenge the sufficiency of the evidence supporting their

convictions. Royston also protests certain evidentiary rulings, the district court’s

denial of Royston’s motion for a new trial, and the district court’s imposition of a

mandatory life sentence. Forest objects to the imposition of a mandatory minimum

120 month sentence. Lee expressly does not challenge his sentence. 

A. Sufficiency of the Evidence

We review de novo sufficiency of the evidence challenges, “viewing the

evidence most favorably to the jury verdict, resolving conflicts in favor of the verdict,

and giving it the benefit of all reasonable inferences.” United States v. Spencer, 592

F.3d 866, 876 (8th Cir. 2010). “The jury’s verdict must be upheld if there is an

interpretation of the evidence that would allow a reasonable jury to find [the

appellants] guilty beyond a reasonable doubt.” Id. (quoting United States v. Moore,

108 F.3d 878, 881 (8th Cir. 1997)) (internal quotation marks omitted). “In making

such an evaluation, ‘it is axiomatic that we do not review questions involving the

credibility of witnesses, but leave credibility questions to the jury.’” United States v.

Ragland, 555 F.3d 706, 715 (8th Cir. 2009) (quoting United States v. Dabney, 367

F.3d 1040, 1043 (8th Cir. 2004)) (internal marks omitted).

1. Continuing Criminal Enterprise

First, we consider Lee’s conviction for engaging in a continuing criminal

enterprise in violation of 21 U.S.C. § 848(c) (Count Thirteen). To uphold the

8

conviction, there must be sufficient evidence Lee committed

We construe Lee’s appeal of his conspiracy conviction, which the district court

8

already vacated, as a challenge to the evidence supporting his continuing criminal

enterprise conviction, of which the conspiracy charge was determined to be a lesser

included offense. See Rutledge, 517 U.S. at 307. 

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1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of three or more related felony violations

of federal narcotics laws;

3) in concert with five or more other persons;

4) for whom [Lee] is an organizer, manager or supervisor; [and]

5) from which [Lee] derives substantial income or resources.

United States v. Jackson, 345 F.3d 638, 645 (8th Cir. 2003) (quoting United States v.

Jelinek, 57 F.3d 655, 657 (8th Cir. 1995)) (internal marks omitted).

Lee maintains “[n]o rational trier offact can find beyond a reasonable doubt that

[he] committed the series of related violations of narcotics laws as alleged . . . , that

he was an organizer, manager or supervisor of [five] or more persons in an

organization, or that he obtained substantial income from the enterprise.” We

disagree.

The jury convicted Lee of ten counts of distributing cocaine, sufficiently

satisfying the first two elements, which require “a continuing series of three or more

related felony violations of federal narcotics laws.” Id. Lee’s attempt to characterize

the offenses merely as “a number of street level cocaine base dealers acting

individually for their own benefit” falls flat. Northern described in detail his and

Lee’s efforts to purchase and distribute cocaine in three cities, using various

individuals—often friends from their hometown of Chicago—as dealers. 

Numerous witnesses corroborated Northern’s core testimony, including

confidential informants who distributed and purchased cocaine Lee supplied. It was

the jury’s prerogative to believe those witnesses, even if they were, as Lee complains,

“admitted liars, drug users, drug dealers, and thieves” “who had struck deals with the

Government.” See United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009)

(“To reach a verdict, a jury is often required to weigh the credibility of criminal

witnesses.”); United States v. Bradley, 643 F.3d 1121, 1125-26 (8th Cir. 2011)

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(affirming a conviction and explaining our past rejection of claims that witnesses

“were incredible because of their incentive for reduced sentences”).

Sufficient evidence also supports the jury’s finding that Lee organized,

supervised, or managed more than five people—the jury identified eleven persons Lee

managed—in furtherance of the continuing criminal enterprise, meeting the third and

fourth elements. “[The management] element of the [continuing criminal enterprise]

statute is satisfied if ‘[Lee] exerted some type of influence over another individual as

exemplified by that individual’s compliance with [Lee’s] directions, instructions, or

terms.’” Jackson, 345 F.3d at 646 (quoting United States v. Possick, 849 F.2d 332,

336 (8th Cir. 1988)) (internal quotation marks omitted). “The government need not

establish that [Lee] managed five people at once, that the five acted in concert with

each other, that [Lee] exercised the same kind of control over each of the five, or even

that [Lee] had personal contact with each of the five.” Possick, 849 F.2d at 335-36. 

The jury heard evidence that at least five people sold cocaine at the direction of

Lee and Northern. See id. at 336 (explaining “defendants who arrange the acquisition

of the drug, its delivery, and set the price and credit terms have been found . . . to

satisfy the requirements ofthe management element”); United States v. Mathison, 518

F.3d 935, 940 (8th Cir. 2008) (reasoning the element is met if there is evidence

showing the “defendant . . . provided substantial amounts of drugs in an ongoing

relationship with lower-level drug dealers”). Lee also arranged for some of these

dealers to live and deal drugs out of two homes, paying the homeowners cash and

drugs to do so. This evidence supported the jury’s finding that Lee directed the two

owners of these homes. See id. (recognizing “a defendant manages someone who

stores drugs for him”); United States v. Lueth, 807 F.2d 719, 732 (8th Cir. 1986)

(similar).

Finally, there was sufficient evidence for the jury to conclude Lee derived

substantial income from the enterprise. “The [continuing criminal enterprise] statute

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does not prescribe the minimum amount of money required to constitute ‘substantial’

income. Judicial decisions construing this phrase have given the prosecution great

latitude on this point.” United States v. Jones, 801 F.2d 304, 310 (8th Cir. 1986). We

reject Lee’s contention the evidence shows he failed to obtain substantial income

because the “[d]eliveries of crack cocaine involving [him] . . . produced relatively

small amounts of money, . . . . the wire transfers . . . were not substantial,” and Bauer

said “Lee was always broke.” Lee’s selective and self-serving account of the facts

mischaracterizes the record evidence, which showed Lee and Northern oversaw the

distribution of large quantities of cocaine, resulting in significant amounts of money

changing hands. At least two witnesses testified to spending substantial sums of

money on Lee’s drugs, including one drug user who claimed he spent at least $20,000

on cocaine from Lee. A reasonable jury could conclude Lee obtained substantial

income as a result of the large-scale criminal enterprise. See id. (recognizing three

non-exclusive factors to consider are “1) evidence of the defendant’s position in the

drug network; 2) the quantity of narcotics involved; and 3) the amount of money that

changed hands”); see also United States v. Roman, 870 F.2d 65, 75 (2d Cir. 1989)

(“Moneys received by the defendant’s underlings may be considered constructively

received by the defendant, and the jury is entitled to consider the gross amount

received, notwithstanding the defendant’s argument that some portion of his gross

income must be paid out to others.”). 

2. Distribution

To convict the appellants for distribution, the government needed to prove the

appellants “knowingly sold or otherwise transferred” specified amounts of cocaine. 

United States v. Garcia, 646 F.3d 1061, 1066 (8th Cir. 2011). The aiding and abetting

chargesrequired the government to prove the appellants “associated [themselves] with

the unlawful [sale or transfer], participated in it as something [they] wished to bring

about, and sought by [their] actions to make it succeed.” United States v. Lewis, 593

F.3d 765, 769 (8th Cir. 2010). “[N]either possession nor an actual sale by a defendant

need be proved by the government on a charge of distributing or aiding and abetting

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the distribution of drugs.” United States v. Hernandez, 986 F.2d 234, 238 (8th Cir.

1993).

As for Lee, five of his ten challenged counts of conviction were for distributing

cocaine and aiding and abetting the same, while five were solely for aiding and

abetting. Each of the counts Lee challengesinvolved controlled buys of cocaine. The 9

five distribution counts are, at a minimum, supported by the buyers’ testimony that Lee

was physically present and participated in the sale. While Lee was not present during

the five controlled buys forming the basis of his aiding and abetting counts, there was

ample testimony from the buyers and other witnesses that Lee, along with Northern,

supplied the cocaine and helped facilitate the transactions in various ways. Once

again Lee attacks the credibility of these witnesses, but fails to convince us their

testimony was so incredible as to justify invading the jury’s purview. See, e.g.,

Bradley, 643 F.3d at 1125-26. We affirm Lee’s convictions.

For similar reasons, we affirmForest’s and Royston’s distribution convictions. 

In both instances, there was evidence allowing the jury to believe Forest and Royston

participated in separate controlled buys of cocaine. The two confidential informants

who made the controlled buys at issue testified Forest and Royston actively

participated during the respective transactions. This is enough to uphold the

convictions. See, e.g., United States v. Williams, 340 F.3d 563, 570-71 (8th Cir.

2003). 

3. Conspiracy 

To uphold Forest’s and Royston’s conspiracy convictions, there must be

evidence from which a reasonable jury could conclude (1) “a conspiracy, i.e., an

agreement to distribute” cocaine, existed; (2) Forest and Royston “knew of the

Lee does not challenge his distribution conviction under Count Five. It is not

9

entirely clear whether Lee challenges his conviction under Count Ten. 

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conspiracy”; and (3) they “intentionally joined the conspiracy.” United States v.

Slagg, 651 F.3d 832, 840 (8th Cir. 2011). “A formal agreement is not required to

create a conspiracy, and the existence of a conspiracy can be proved by direct or

circumstantial evidence.” United States v. Bowie, 618 F.3d 802, 812 (8th Cir. 2010)

(quoting United States v. Williams, 534 F.3d 980, 985 (8th Cir. 2008)) (internal

quotation marks omitted). “[A] single conspiracy may exist even if the participants

and their activities change over time, and even if many participants are unaware of, or

uninvolved in, some of the transactions.” Slagg, 651 F.3d at 840 (quoting United

States v. Longs, 613 F.3d 1174, 1176 (8th Cir. 2010)) (internal quotation marks

omitted).

Both Forest and Royston argue there was insufficient evidence for the jury to

conclude they voluntarily joined the conspiracy. Forest acknowledges there was

evidence showing he knew other participants in the conspiracy and he independently

sold drugs, but Forest asserts this is not enough to link him to the conspiracy. 

Similarly, Royston claims the “evidence did littlemore than prove [he] associated with

individuals who were involved with the conspiracy.” Forest and Royston understate

the evidence.

Northern testified he brought Forest to Bismarck to provide security after one

of the organization’s dealers was robbed. According to Northern, Forest collected

drug money for the organization and distributed cocaine. A confidential informant,

Galen Smith, testified he firstsaw Forest during a confrontation with Lee about a drug

deal, and later bought cocaine from Forest, who was selling on Lee’s behalf. Rashad

Jackson, who admitted selling cocaine for the organization, said he set up Forest with

drug customers. Other witnesses said they either bought cocaine from Forest or

observed him selling cocaine.

Northern testified Royston’s involvement began when Royston sold relatively

large quantities of cocaine to Northern and Lee on at least two occasions, with Lee and

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Northern paying approximately $5,600 each time. According to Northern, Royston

later came from Minnesota to Fargo and distributed cocaine with Lee. Royston also

helped Northern and Lee “cook up drugs . . . in Bismarck.” Other witnesses

corroborated some of Northern’s testimony, explaining theymetRoyston through Lee,

and purchased cocaine from Royston. 

From this evidence, it was reasonable for the jury to conclude both Forest and

Royston knowingly and intentionally joined the conspiracy to distribute cocaine. 

B. Admission of Past Crime

During the trial, the government presented evidence Royston was convicted in

1999 for possession of a controlled substance with intent to deliver in violation of

Illinois law. Royston argues the district court abused its discretion by admitting the

evidence because it “did nothing more than establish [his] propensity to commit a drug

offense, which is exactly what [Fed. R. Evid.] 404(b) [is] intended to prohibit.” 

Because Royston objected at trial, we review the admission for abuse of

discretion. See United States v. Gaddy, 532 F.3d 783, 789 (8th Cir. 2008). Here, the

district court determined Royston’s conviction was admissible because it was

probative of his intent to join the conspiracy and was not so remote in time so as to be

inadmissible. We detect no abuse of discretion in this decision. “We have held on

numerous occasions that a prior conviction for distributing drugs, and even the

possession of user-quantities of a controlled substance, are relevant under Rule 404(b)

to show knowledge and intent to commit a current charge of conspiracy to distribute

drugs.” United States v. Adams, 401 F.3d 886, 894 (8th Cir. 2005) (quoting United

States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002)) (internal quotation marks

omitted). “[T]he district court’s limiting instruction, which instructed the jury that it

could only consider this evidence to decide the issues of intent and knowledge,”

addressed “any unfair prejudicial effect of these prior convictions.” Gaddy, 532 F.3d

at 790.

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C. Motion for a New Trial

We next consider the district court’s denial of Royston’s motion for a new trial,

which we also review for abuse of discretion. See United States v. Sturdivant, 513

F.3d 795, 802 (8th Cir. 2008). A district court “may vacate any judgment and grant

a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). It is proper

for the court to weigh the evidence and consider witness credibility when doing so, but

such authority should be used cautiously and sparingly. See Sturdivant, 513 F.3d at

802. “The jury’s verdict must be allowed to stand unless‘the evidence weighs heavily

enough against the verdict such that a miscarriage of justice may have occurred.’” Id.

(quoting United States v. Johnson, 474 F.3d 1044, 1051 (8th Cir. 2007)) (internal

marks omitted). Royston argues he is entitled to a new trial because (1) Northern’s

testimony was incredible, and (2) the jury saw two transcripts that improperly

identified him while the jury waslistening to audio recordings of two controlled buys.

1. Witness Credibility 

The district court determined the “interest of justice” did not require a new trial,

because “there wassufficient evidence to justify the convictions on both counts.” The

district court highlighted testimony fromfour witnesses, including Northern, showing

Royston participated with Lee in the conspiracy. The district court concluded “no

miscarriage of justice occurred,” explaining “Royston thoroughly cross-examined all

witnesses at trial and the . . . relevant witnesses’ testimony was sufficiently credible.”

After reviewing the evidence, we reach the same conclusion.

We reject Royston’s contention that comments the district court made about

Northern’s credibility during Royston’s sentencing hearing show Royston is entitled

to a new trial. Responding to comments Royston made challenging the evidence, the

district court stated, “I understand what you’re saying . . . and I appreciate the

argument that, look, you know, whatever Jake Northern said it’s had [sic] to believe

that anyone could have given it much weight, and [the jury] obviously didn’t give it

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much weight in some instances and they apparently gave it more weight in other

instances. And it doesn’t make sense and I appreciate that argument.” Viewed in

context, the district court’s comments appear to be merely an attempt to explain to

Royston that the district court understood Royston’s credibility argument. The district

court’s comments are entirely consistent with the rationale the district court articulated

when denying Royston’s motion for a new trial. 

 

2. Transcripts

We next consider Royston’s claim that a new trial is necessary because the

district court improperly allowed the inclusion of his name and initials on two

transcripts displayed to the jury while the government played audio recordings of two

controlled buys. Royston argues he “was entitled to have the jury consider Brown’s

testimony alone to determine if [Royston] was present.” Although it appearsfrom the

undeveloped record on this issue that the use of these transcripts was not entirely

proper, no reversible error occurred. 

Both challenged transcripts—Court Exhibits E and G —detail conversations 10

between Lee and a confidential informant (identified elsewhere as Herb Brown)

during the two controlled buys. At the top of Exhibit E, Royston’s name is listed next

to the initials “MR,” but Royston is not identified asspeaking during the conversation. 

Exhibit G does not list Royston’s name, but does indicate “MR” asked Brown, “You

don’t want to take that one with you?” Brown testified Royston was with Lee during

both controlled buys at issue, but police officer Brad Stuvland was unable to identify

Royston as being present during the controlled buys. 

The government incorrectly statesthe transcript of the second controlled buy

10

was Exhibit F, which was a recorded phone call between Lee and the confidential

informant Herb Brown.

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The government concedes it was a mistake to include Royston’s name and

initials on Exhibit E. Including Royston’s name and initials risked improperly

suggesting to the jury that Royston was present during the first controlled buy, which

the accompanying recording did not demonstrate. And the inclusion of Royston’s

initials on Exhibit G may have been improper because Officer Stuvland, who helped

prepare the transcript, did not state he was familiar with Royston’s voice nor did he

positively identify the voice on the recording as Royston, although “MR” was listed

on the transcript. 

 

Royston did not raise this issue in his motion for a new trial, nor did he object

to use of the transcripts with any specificity. “We have repeatedly held that 11

objections must be specific and that otherwise we will review evidentiary rulings only

for plain error.” United States v. Johnson, 450 F.3d 366, 371 n.2 (8th Cir. 2006)

(quoting United States v. Carter, 410 F.3d 1017, 1023 (8th Cir. 2005)) (internal

quotation marks omitted); see also Fed. R. Crim. P. 51(b); Fed. R. Evid. 103(a)(1)(B).

We conclude any error made by the district court was harmless and thus not

reversible even under our typical abuse of discretion standard. See United States v.

Before the first recording was played, Officer Stuvland said the transcript

11

(Exhibit E) was “an accurate reflection of the conversation [of] the controlled buy.

Lee’s attorneyobjected, arguing inadequate foundation because “this officer isn’t able

to identify . . . Lee as being present” during the controlled buy. After the officer

testified he was familiar with Lee’s voice and could positively identify Lee’s voice

on the exhibit, Lee’s attorney renewed his objection, which the district court

overruled. At the district court’s prompting, Royston’s and Forest’s attorneys joined

the objection without elaborating. Before the second recording was played to the

jury, the appellants made the “[s]ame objection” on the “[s]ame basis.” Royston’s

attorney added, “I’d note in . . . [Exhibit E, the government] had a name on there on

the very beginning of it and then there was no audio of [Royston] on there. If they

try to do that again I would have further objection.” Exhibit G indicated Royston

spoke during the recording of the second controlled buy.

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Peneaux, 432 F.3d 882, 894 (8th Cir. 2005) (“We will not reverse a conviction . . . if

an evidentiary error is harmless.”). 

An evidentiary error is harmless if the substantial rights of the defendant

were unaffected and the error did not influence or had only a slight

influence on the verdict. To determine whether the error was harmless

we review the entire record to determine whether the substantial rights

of the defendant were prejudiced by the admission.

Id. at 894-95 (citations omitted).

Here, Brown testified Royston was present during both of the controlled buys.

Royston made the jury aware the only direct evidence showingRoyston’s involvement

in these controlled buys wasBrown’s testimony, whichRoyston vigorouslychallenged

during cross-examination and closing arguments. “Finally, the transcripts were used

only to assist the jurors as they listened to the recordings,” and the district court

adequately instructed the jurors twice “that the [audio recordings] were the best

evidence, that the transcripts were merely an aid and that any discrepancies were to be

resolved in favor of what was heard.” United States v. Bentley, 706 F.2d 1498, 1508

(8th Cir. 1983). We conclude no miscarriage of justice occurred asthe result of the use

of the transcripts, and thus affirm the district court’s denial of a new trial. 

D. Fair Sentencing Act

The district court sentenced Forest and Royston on August 31, 2010, soon after

the August 3 enactment of the FSA which, as relevant here, increased the quantities

of crack cocaine needed to trigger statutory minimum sentences. The district court

determined the FSA was not applicable, and therefore the district court was required

to impose statutory mandatory sentences upon Forest and Royston because of the

amount of cocaine base, or crack, the jury found their crimes involved. Forest and

Royston argue the district court erred because the revised statutory penalties should

have applied to their sentences, and ask us to remand their cases to the district court

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for resentencing pursuant to the FSA. We adhere to Dorsey v. United States, 567

12

U.S. ___, ___, 132 S. Ct. 2321, 2326 (2012), in which the Supreme Court held “the

new, more lenient mandatory minimum provisions” of the FSA “apply to offenders

who committed a crack cocaine crime before August 3, 2010, but were not sentenced

until after August 3.” 

We thus vacate Royston’s and Forest’s sentences and remand for proceedings

consistent with Dorsey and the FSA. The drug quantity range found by the jury no

longer requires imposition of the same statutory mandatory sentences. The district

court, upon resentencing, must address the FSA and the drug quantities involved in

these cases, and our holding does not mean either Forest or Royston is entitled to a

lesser, or any particular, sentence under the statutes or the advisory guidelines.

13

 

III. CONCLUSION

We affirmthe district court’s judgment and sentence asto Lee. As to Forest and

Royston, we affirm their convictions, but vacate their sentences and remand for

resentencing consistent with this opinion. 

______________________________

Royston did not raise the retroactivity of the FSA in his opening brief. On 12

July 5, 2012, Royston filed a pro se supplemental brief raising thisissue. We exercise

our discretion to consider this untimely issue. See, e.g., United States v. Brewer, 624

F.3d 900, 909 n.7 (8th Cir. 2010). 

In his opening brief, Royston challenged the district court’s imposition of a 13

mandatory life sentence under 21 U.S.C. § 841(b)(1)(A), arguing the statutory

minimum should only apply to those convicted of distributing “crack,” not “cocaine

base.” Royston acknowledged in his reply brief that this argument is foreclosed by

the Supreme Court’s holding in DePierre v. United States, 564 U.S. ___,___, 131 S.

Ct. 2225, 2237 (2011), which determined the “term ‘cocaine base’ as used in

§ 841(b)(1) means not just ‘crack cocaine,’ but cocaine in its chemically basic form.” 

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