UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4265

JOSEPH BYRD, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CR-98-998)

Argued: December 4, 2002

Decided: January 6, 2003

Before NIEMEYER and LUTTIG, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Vacated and remanded with instructions by unpublished per curiam

opinion. 

COUNSEL

ARGUED: Andrew David Grimes, ANDREW D. GRIMES, P.A.,

Summerville, South Carolina, for Appellant. Thomas Ernest Booth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United

States Attorney, A. Bradley Parham, Assistant United States Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Joseph Byrd, Jr. (Byrd) appeals his sentence imposed by the district

court following his guilty plea to conspiracy to possess with intent to

distribute and to distribute a "quantity" of cocaine and a "quantity" of

cocaine base (crack), 21 U.S.C. §§ 841(a)(1) and 846. (J.A. 9).

Although Byrd challenges his sentence on numerous fronts, he principally argues that his sentence violated the dictates of Apprendi v. New

Jersey, 530 U.S. 466 (2000), and that the district court erred when it

sentenced him as a career offender, United States Sentencing Commission, Guidelines Manual, (USSG) § 4B1.1, because his two prior

state felony drug offenses were related as part of a single common

scheme or plan and thus constituted one conviction instead of the two

convictions necessary for career offender status. For the reasons

stated below, we reject Byrd’s Apprendi arguments, but nevertheless

vacate his sentence and remand the case to the district court with

instructions to determine whether Byrd’s two prior state felony drug

offenses were related as part of a single common scheme or plan by

applying the factors set forth in United States v. Breckenridge, 93

F.3d 132 (4th Cir. 1996). 

I

A

In January 1998, an informant told Drug Enforcement Administration (DEA) agents that Byrd was a cocaine dealer and that he was

storing cocaine at a Storage Trust Company storage unit (Unit #730)

in Greenville, South Carolina. On May 6, 1998, a drug detection dog

alerted on Unit #730, which was rented to Macy Byrd, Byrd’s aunt.

On May 8, 1998, the DEA agents executed a search warrant at Unit

#730 and seized numerous plastic baggies that contained a residue

that subsequently tested positive for cocaine. 

2 UNITED STATES v. BYRD
On November 16, 1998, Byrd entered Unit #730 three times. On

November 20, 1998, the DEA agents executed a second search warrant at Unit #730 and seized 3.25 kilograms of cocaine, $70,020 in

cash, five one-kilogram shells containing cocaine residue, and two

sets of scales. Byrd’s fingerprints were subsequently detected on the

scales. 

After the search, Everette Byrd (Everette) and Frank Henderson

(Henderson) arrived at the unit. After they arrived, Everette got out

of the car, unlocked the door to Unit #730, and went inside. While

Everette was entering the storage unit, Henderson stayed in the car.

Subsequently, the DEA agents arrested both of them. Thereafter, the

DEA agents searched Everette’s residence and seized 69.77 grams of

crack, 64.26 grams of marijuana, $3,500 in cash, an electronic scale,

and three firearms. 

B

On December 15, 1998, a federal grand jury sitting in the District

of South Carolina indicted Byrd and Everette on two counts. Count

One charged the defendants with conspiracy to possess with the intent

to distribute and to distribute a "quantity" of cocaine and a "quantity"

of crack, 21 U.S.C. §§ 841(a)(1) and 846. (J.A. 9). Count Two

charged the defendants with possession with the intent to distribute a

"quantity" of cocaine, 21 U.S.C. § 841(a)(1). (J.A. 10). 

Byrd’s trial began on November 8, 1999. On November 9, 1999,

Byrd pled guilty to the conspiracy count. During the plea hearing, the

government presented a brief summary of its evidence against Byrd.

In preparation for sentencing, a United States Probation Officer

prepared a Presentence Investigation Report (PSR). According to the

PSR, Byrd’s base offense level was thirty-two, which was based on

11.05 kilograms of cocaine, USSG § 2D1.1(c)(4). The 11.05 kilograms of cocaine was based on the items recovered from Unit #730

on November 20, 1998; specifically, the 3.25 kilograms of cocaine,

the five one-kilogram shells which contained cocaine residue, and the

$70,020 in cash (the equivalent of 2.8 kilograms of cocaine). Because

the PSR determined that Byrd was a career offender, Byrd’s offense

level was thirty-seven, id. § 4B1.1(A) (offense level of thirty-seven if

UNITED STATES v. BYRD 3
the statutory maximum sentence for the offense of conviction is life).

According to the PSR, Byrd’s career offender status was based on his

two prior state felony drug convictions for distribution of cocaine and

the fact that his instant offense of conviction carried a maximum sentence of life under 21 U.S.C. § 841(b)(1)(A) (providing a statutory

maximum sentence of life for an offense involving at least five kilograms of cocaine). With regard to Byrd’s two prior state felony drug

convictions, the first offense involved a cocaine sale on June 30, 1989

to an undercover agent of the Greenville, South Carolina Police

Department at the C & C garage on Green Avenue in Greenville. The

second offense involved a cocaine sale to ostensibly the same undercover agent on July 7, 1989 at the Jetco Station on Green Avenue in

Greenville. Byrd was arrested for both offenses on December 2, 1989

and was charged in two separate indictments in General Sessions

Court in Greenville. Byrd pled guilty to both indictments and, on June

26, 1990, was sentenced to concurrent terms of seven years’ imprisonment. Byrd was paroled in November 1991. 

Byrd’s offense level was reduced by two levels for acceptance of

responsibility; consequently, Byrd’s offense level of thirty-five, coupled with his criminal history category of six, resulted in a Sentencing

Guidelines range of 292 to 365 months’ imprisonment. 

Byrd objected to the PSR’s drug quantity and career offender recommendations. At sentencing, the district court overruled Byrd’s

objection to the PSR’s drug quantity determination on the ground that

the PSR’s recommendation was supported by substantial evidence,

including Byrd’s fingerprints on the scales. Without addressing the

factors set forth in Breckenridge, the district court overruled Byrd’s

objection to the PSR’s career offender determination on the ground

that Byrd’s prior state drug felony offenses were "separate." (J.A. 40).

The district court then sentenced Byrd to a term of imprisonment of

365 months, a term of supervised release of five years, and a special

assessment of $100. On March 27, 2000, Byrd noted a timely appeal.

II

We first consider whether Byrd’s sentence is invalid under the

Supreme Court’s decision in Apprendi, which was decided while this

case was pending on appeal. Byrd did not raise this issue before the

4 UNITED STATES v. BYRD
district court, so we apply the plain error standard of review. United

States v. Carter, 300 F.3d 415, 428-29 (4th Cir.) (discussing application of the United States v. Olano, 507 U.S. 725 (1993), plain error

standard to Apprendi claims not raised in the district court), cert.

denied, 2002 WL 31511362 (U.S. December 2, 2002). 

The indictment to which Byrd pled guilty did not specify a particular threshold drug quantity. Further, drug quantity was determined by

the district court at sentencing. Because Byrd received a sentence of

365 months, five months above the thirty-year statutory maximum for

a violation of 21 U.S.C. § 841 where there is no jury finding of a specific threshold drug quantity and the defendant has a prior felony drug

offense, id. § 841(b)(1)(C), it is clear that an error occurred in sentencing Byrd and that the error was plain. United States v. Promise,

255 F.3d 150, 156-60 (4th Cir. 2001) (en banc), cert. denied, 122

S. Ct. 2296 (2002). 

We find, however, that any resulting error did not "‘seriously

affect[ ] the fairness, integrity or public reputation of judicial proceedings,’" Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297

U.S. 157, 160 (1936)), based on the overwhelming and essentially

uncontroverted evidence presented at the guilty plea hearing and at

sentencing indicating that Byrd was responsible for far more than the

500 grams of cocaine necessary to sentence him under 21 U.S.C.

§ 841(b)(1)(B), which authorizes a forty-year maximum term of

imprisonment. United States v. Cotton, 122 S. Ct. 1781, 1786 (2002).1

We also note that, in light of the indictment’s failure to allege drug

quantity, the district court, without having the benefit of the Supreme

Court’s decision in Apprendi, incorrectly informed Byrd that he faced

a possible sentence of a minimum of not less than ten years and a

maximum of life imprisonment. Under 21 U.S.C. § 841(b)(1)(C),

there is no mandatory minimum, and the maximum possible sentence

is thirty years where the defendant has a prior felony drug offense.

Thus, in retrospect, the district court violated Rule 11(c)(1) of the

1We also find no merit to Byrd’s contention that the district court

clearly erred when it found that he was accountable for 11.05 kilograms

of cocaine for purposes of calculating his offense level under the Sentencing Guidelines. 

UNITED STATES v. BYRD 5
Federal Rules of Criminal Procedure. United States v. Martinez, 277

F.3d 517, 530 (4th Cir.), cert. denied, 123 S. Ct. 200 (2002). We find

that Byrd cannot establish plain error in this regard, however, because

he cannot show that he would not have pled guilty absent this error.

Id. at 533. 

Finally, under our circuit precedent, we must reject Byrd’s claims

that 21 U.S.C. § 841 is unconstitutional after Apprendi, United States

v. Chong, 285 F.3d 343, 346-47 (4th Cir. 2002) (21 U.S.C. § 841 is

facially constitutional), and that Apprendi requires the government to

plead a defendant’s prior convictions in the indictment, United States

v. Cristobal, 293 F.3d 134, 147-48 (4th Cir.) (Apprendi does not

require prior convictions to be pleaded or proven), cert. denied, 123

S. Ct. 396 (2002). 

III

We next consider Byrd’s contention that he was improperly sentenced as a career offender because his two prior state felony drug

offenses, one occurring on June 30, 1989 and the other occurring on

July 7, 1989, were related as part of a single common scheme or plan

and thus constituted one conviction instead of the two convictions

necessary for career offender status. The district court held that the

two offenses were separate offenses. Our review of the district court’s

Sentencing Guidelines determinations is deferential. Buford v. United

States, 532 U.S. 59, 60 (2001). 

Under USSG § 4B1.1, a defendant is a career offender if

(1) the defendant was at least 18 years old at the time the

defendant committed the instant offense of conviction; (2)

the instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense, and (3)

the defendant has at least two prior felony convictions of

either a crime of violence or a controlled substance offense.

Id. § 4B1.1. 

Byrd meets the first two conditions of USSG § 4B1.1 because he

was eighteen years old at the time he committed the instant offense

6 UNITED STATES v. BYRD
of conviction and because the instant offense of conviction is a felony

that is a controlled substance offense. The point of contention

between the parties is whether Byrd has at least two prior felony convictions for a controlled substance offense. 

The term "two prior felony convictions" is defined in USSG

§ 4B1.2(c) as follows:

The term "two prior felony convictions" means (1) the

defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of

either a crime of violence or a controlled substance offense

(i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one

felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony

convictions are counted separately under the provisions of

§ 4A1.1(a), (b), or (c). 

Id. § 4B1.2(c). There is no dispute that Byrd has at least two prior felony convictions for a controlled substance offense. The issue is

whether the sentences for the two prior controlled substance offenses

are counted separately under the provisions of USSG § 4A1.1(a),

which awards three criminal history points for each "prior sentence of

imprisonment exceeding one year and one month." Id. § 4A1.1(a). 

USSG § 4A1.2(a)(2) instructs us that "[p]rior sentences imposed in

unrelated cases are to be counted separately." Id. § 4A1.2(a)(2). However, "[p]rior sentences imposed in related cases are to be treated as

one sentence for purposes of § 4A1.1(a), (b), and (c)." Id.

§ 4A1.2(a)(2). In Application Note 3 to USSG § 4A1.2, the term "related cases" is defined in relevant part as follows: 

Prior sentences are not considered related if they were for

offenses that were separated by an intervening arrest (i.e.,

the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are

considered related if they resulted from offenses that (A)

occurred on the same occasion, (B) were part of a single

UNITED STATES v. BYRD 7
common scheme or plan, or (C) were consolidated for trial

or sentencing. 

Id. § 4A1.2, comment. (n.3). 

In this case, Byrd’s two prior state felony drug offenses were not

separated by an intervening arrest. Further, the "same occasion" prong

does not apply because the conduct underlying Byrd’s first prior

offense did not occur on the same occasion as the conduct underlying

Byrd’s second prior offense. From the record before this court, one

cannot find that the "consolidation" prong applies because the record

contains no materials from Byrd’s state court offenses except for the

information used in the PSR. Thus, Byrd must establish that his prior

offenses were part of a single common scheme or plan for this court

to conclude that his two prior state felony drug offenses were related.

Although there is a split in the circuits as to the proper test for

determining when prior offenses are part of a single common scheme

or plan, compare United States v. Ali, 951 F.2d 827, 828 (7th Cir.

1992) (holding that prior offenses are part of the same scheme or plan

only if the prior offenses were jointly planned or, at a minimum, the

commission of one offense necessarily required the commission of

another), with Breckenridge, 93 F.3d at 138-40 (applying eight-factor

test), this court has identified eight factors for district courts to consider in determining whether prior offenses are part of a single common scheme or plan: (1) commission within a short period of time;

(2) close geographic proximity; (3) same substantive offenses; (4)

directed at a common victim; (5) solved in a single criminal investigation; (6) similar modus operandi; (7) animated by the same motive;

and (8) tried and sentenced separately only because of an accident of

geography. Breckenridge, 93 F.3d at 138. 

In explaining how these factors should be applied, Breckenridge

states that all eight factors do not have to be present for there to be

a common scheme or plan. Id. Breckenridge also notes that the most

significant factors to a finding that prior offenses are related are temporal proximity, geographic proximity, and being the same substantive offense. Id.

In this case, the district court did not apply the Breckenridge factors; rather, without addressing the Breckenridge factors, the district

8 UNITED STATES v. BYRD
court overruled Byrd’s objection to the PSR’s career offender determination on the ground that Byrd’s prior state drug felony offenses

were "separate." (J.A. 40). 

The district court’s failure to apply the Breckenridge factors or to

give reasons supporting its conclusion that Byrd’s two prior state felony drug offenses were "separate," id., makes meaningful appellate

review of Byrd’s Breckenridge claim inappropriate at this time. The

more prudent course here is to vacate Byrd’s sentence and remand the

case to the district court with instructions to apply the Breckenridge

factors to Byrd’s two prior state felony drug offenses. 

IV

For the reasons stated herein, we vacate Byrd’s sentence and

remand the case to the district court with instructions to the district

court to determine whether Byrd’s two prior state felony drug

offenses were related as part of a single common scheme or plan by

applying the factors set forth in Breckenridge. If after applying the

Breckenridge factors the district court concludes that Byrd’s two prior

state felony drug offenses are not related, the district court may reimpose the same career offender sentence it imposed at Byrd’s original

sentencing. However, if the district court concludes that Byrd’s two

prior state felony drug offenses are related, Byrd may not be sentenced as a career offender and must be resentenced within the appropriate Sentencing Guidelines range.2

VACATED AND REMANDED WITH INSTRUCTIONS

2Byrd also claims that he received constitutionally ineffective assistance of counsel in the district court. Because the record does not conclusively establish that Byrd’s counsel was constitutionally ineffective, this

claim is not cognizable on direct appeal and must be raised under 28

U.S.C. § 2255. United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999), cert. denied, 528 U.S. 1096 (2000). Finally, we have reviewed the

additional claims raised by Byrd in his pro se supplemental brief and find

those additional claims to be without merit. 

UNITED STATES v. BYRD 9