Rehearing granted, June 19, 2009 for the limited purpose of filing corrected opinion



                                    CORRECTED OPINION

                                       UNPUBLISHED

                             UNITED STATES COURT OF APPEALS
                                 FOR THE FOURTH CIRCUIT


                                       No. 07-4770


         UNITED STATES OF AMERICA,

                           Plaintiff - Appellee,

                   v.

         JERMAL DANIELS,

                           Defendant - Appellant.



                                       No. 07-4771


         UNITED STATES OF AMERICA,

                           Plaintiff - Appellee,

                   v.

         JERMAL DANIELS,

                           Defendant - Appellant.



                                       No. 07-4777


         UNITED STATES OF AMERICA,

                           Plaintiff - Appellee,

                   v.
JERMAL DANIELS,

                  Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00103-RJC-2; 3:05-cr-00265;
3:06-cr-00082)


Argued:   October 30, 2008                   Decided:   April 21, 2009

              Corrected Opinion Filed:     June 19, 2009


Before GREGORY and DUNCAN, Circuit Judges, and Richard             D.
BENNETT, United States District Judge for the District             of
Maryland, sitting by designation.


Affirmed in part, vacated in part, and judgment withheld in part
by unpublished opinion.    Judge Bennett wrote the opinion, in
which Judge Gregory joined.     Judge Duncan wrote a dissenting
opinion.


ARGUED: Kevin Andre Tate, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.   Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.     ON BRIEF: Claire J. Rauscher,
Executive Director, Ross Richardson, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant.   Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                   2
BENNETT, District Judge:

      Defendant       Jermal    Daniels        (“Daniels”)         appeals     his

convictions     and    sentences    for   several       offenses,      including

conspiracy to possess with intent to distribute one kilogram or

more of heroin and 500 grams or more of cocaine, in violation of

21 U.S.C. §§ 841 and 846.          In this appeal, Daniels raises three

issues.     First, Daniels argues that his arrest was not supported

by probable cause and that the trial court erred in refusing to

suppress evidence obtained as a result of the search of his

person, the use of a key in the lock of an apartment where he

resided, and the issuance of a search warrant for that same

location.     In addition, Daniels appeals his sentence for the

convictions, contending that the trial court improperly applied

offense level enhancements based on a finding that Daniels held

a leadership role in the conspiracy and that he had obstructed

justice.      Finally,    Daniels   contends     that    the   district       court

erred by failing to instruct the jury to find the amounts of

drugs   individually      attributable    to    him    under   the    conspiracy

charge, in violation of United States v. Collins, 415 F.3d 304

(4th Cir. 2005).       Because of this error, Daniels contends that

his mandatory life sentence for the conspiracy charge cannot

stand because a proper instruction would have permitted the jury

to find a reduced drug quantity attributable to him, leading to

a   reduced   statutory    sentence   under     21    U.S.C.   §    841(b).     We

                                      3
affirm the district court’s rulings on the suppression motions

and     the     sentence    enhancements.           However,      as   to   Daniels’

challenge of the jury instructions, we find reversible Collins

error and withhold judgment on the conspiracy charge for thirty

days.     The Government may choose between remand for resentencing

under the default penalty provision in § 841(b)(1)(B) (providing

for a sentence of ten years to life in prison), or remand for a

new trial.


                                         I.

        On March 3, 2005, officers of the Charlotte Mecklenburg

Police    Department       arrested    one    of    their    informants,      Adreian

Jackson, for selling drugs to another informant.                        (J.A. 125,

559.)     Jackson was on pretrial release following his indictment

in August of 2004 on charges of conspiracy to distribute illegal

drugs.        (J.A. 121, 554.)        Officers learned in early 2005 that

Jackson was trafficking in heroin and cocaine in violation of

the     conditions     of    his    release        and    they    conducted     three

controlled buys from Jackson, leading to his March 3rd arrest.

(J.A. 125, 159-60, 295, 558, 591, 708-10, 713, 717.)

        After    agreeing    to    cooperate       with     the   police,     Jackson

arranged to meet with Daniels, who was one of his suppliers, in

the parking lot of a Bi-Lo grocery store on Albemarle Road in

Charlotte, North Carolina.             The police officers waited in the


                                         4
grocery store parking lot and Jackson identified Daniels when he

appeared    in     a   burgundy      Chevrolet         Impala.        (J.A.    168,       731.)

Jackson also identified co-defendant Corey Edwards, who arrived

separately      in     a    red   Ford    Expedition.           (J.A.   167-68.)          Once

Edwards entered the passenger’s side of the Impala, the officers

initiated a “take down” and arrested both defendants.                                     (J.A.

168, 731.)         Incident to the arrest, police searched Daniels’

person    and     found      four   bundles,       each      containing      ten    bags,    of

heroin in his underwear.                 (J.A. 132, 734.)         During their search

of the Impala, police found two cell phones and approximately

$2,200 in cash.            (J.A. 740.)

       After Daniels’ arrest, Jackson rode with Detective Jimmy

Messer to a nearby apartment complex, where Jackson identified

cars     within      the     complex      as    belonging       to    Daniels       and     his

girlfriend,       Toria      Douglas.          (J.A.    304.)        After    running       the

license plate on his girlfriend’s car, the police pinpointed the

address of 1305 Kelston Place, Apartment 106 as a residence of

Daniels.        (J.A. 317.)            The police maintained surveillance on

the apartment until an officer arrived with a key the police had

seized from Daniels during his arrest.                       (J.A. 135-36.)          Officers

inserted and turned the key to confirm it unlocked the door to

Apartment 106.         (J.A. 135-36.)

       After     Daniels       denied      consent      to    search    the        apartment,

Detectives Arthur Robson and Chris Kimbell applied for a search

                                               5
warrant.        (J.A.      58-61.)       In    their   supporting      affidavit,        the

officers      asserted       that    a   confidential      and     reliable      informant

pointed out the car as the vehicle owned and driven by Daniels.

In addition, the application averred, inter alia, that Daniels

possessed a key that unlocked the door to Apartment 106 of 1305

Kelston Place.           (J.A. 58-61.)        Officers later searched Apartment

106 and seized several baggies of heroin and powder cocaine,

equipment used for packaging drugs, cash totaling $63,060, six

firearms, a bulletproof vest, and different types of ammunition.

(J.A. 755-64, 816, 825.)

       Prior       to   trial,   Daniels      filed      two   Motions     to    Suppress,

arguing that the court should not admit evidence and statements

that were derived from the officers’ strip search of his person,

the unauthorized use of the key in the door of Apartment 106 of

1305 Kelston Place, and the subsequent search of that location

pursuant to a warrant that was false and misleading.                             (J.A. 40,

234.)        The     district    court     held    two    suppression      hearings       to

consider these arguments and denied both Motions to Suppress.

       Defendant Daniels was one of eight defendants charged in a

thirteen-count          Third    Superseding       Indictment      filed    on    May    25,

2006    in     the      United   States       District     Court    for    the     Western

District      of     North   Carolina.         Count     One   charged     Daniels      with

conspiracy to possess with intent to distribute one kilogram or

more of heroin and 500 grams or more of cocaine in violation of

                                               6
21 U.S.C. §§ 846 and 841(b)(1)(A).                       Count Five charged Daniels

with possession with intent to distribute heroin and aiding and

abetting in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)

and 18 U.S.C. § 2.              Count Six charged Daniels with possession

with    intent    to      distribute      500        grams    or    more    of    cocaine      and

aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B) and 18 U.S.C. § 2.                      Count Seven alleged possession

of a firearm during and in relation to a drug trafficking crime

in    violation      of    18    U.S.C.      §       924(c).        Count     Eight     alleged

possession of a firearm by a convicted felon in violation of 18

U.S.C.     §    922(g).         Count     Thirteen           alleged       intimidating        and

threatening      a     witness    in    violation            of    18   U.S.C.     §   1512(b).

(J.A. 371-77.)

        On June 13, 2006, the jury returned its verdict convicting

Daniels on all counts.                 With respect to Count One, the jury

found    that    one      kilogram      or   more       of        heroin    was   “reasonably

foreseeable      to     [Defendant]”         and       that       500   grams     or    more   of

cocaine    was    “reasonably          foreseeable           to     [Defendant].”         (J.A.

1809.)     A Presentence Investigation Report (“PSR”) was prepared.

As to Counts One, Five, and Six, the PSR recommended a four

level enhancement to his base offense level pursuant to U.S.S.G.

§ 3B1.1(a), for Daniels’ role as a leader.                              (J.A. 1886.)           The

PSR     also    recommended       an    additional            increase      of    two    levels

pursuant to U.S.S.G. § 3C1.1 for obstruction of justice.                                  (J.A.

                                                 7
1886.)     As to Count Thirteen, the PSR recommended an increase of

eight levels, pursuant to U.S.S.G. § 2J1.21(b)(1)(A), because

the   offense        included    threatening         a    witness          and   causing      the

witness    to       recant   statements       made       to    law    enforcement.          (J.A.

1887.)

      At      the     sentencing      hearing,           Daniels          objected     to     the

enhancements for obstruction of justice and leadership role, and

objected to the statutory sentencing range of mandatory life

imprisonment based upon threshold drug quantity, arguing that

the drug amounts found by the jury could not be used because the

jurors were improperly instructed regarding drug amounts.                                   (J.A.

1778-88,      1829-32.)         The    court      overruled          Daniels’       objections

regarding the drug amounts found by the jury and the guideline

enhancements         for   leadership    role       and       obstruction        of   justice.

(J.A. 1829-32, 1842, 1846.)               The court imposed a life sentence

on Count One to be served consecutively with a term of 60 months

on Count 7 and concurrently with terms of 360 months for Counts

5 and 6 and terms of 120 months for Counts 8 and 13.                                        (J.A.

1853-54.)       This appeal followed.



                                          II.

      Daniels        contends   that    his       March       3,   2005     arrest     was    not

based    on    probable      cause.      In       addition,          he    argues     that    the

district court erred in denying his Motions to Suppress, which

                                              8
challenged the admissibility of evidence obtained as a result of

the search of his person, the use of his key in the lock of

Apartment        106        at   1305       Kelston         Place,    and     the     affidavit

supporting the search warrant for that same location.

       In    considering           Daniels’    claims        and     the    district    court’s

denial      of   his    Motions       to    Suppress,         this    Court    reviews     legal

determinations de novo and factual findings for clear error.

See United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997).

                                                A.

       Daniels      contends         that    the       police   did    not     have    probable

cause to arrest him in the parking lot of the Bi-Lo grocery

store on Albemarle Road on the evening of March 3, 2005, and

that       the   evidence        obtained      as       a    result        should   have    been

excluded. 1

       We have explained that “[a]n officer has probable cause for

arrest      when,      at    the    time     the       arrest   occurs,       the   facts    and

circumstances within the officer’s knowledge would warrant the

belief of a prudent person that the arrestee had committed or

was committing an offense.”                   United States v. Manbeck, 744 F.2d

360, 376 (4th Cir. 1984) (citing Beck v. Ohio, 379 U.S. 89, 91

(1964)).         The Supreme Court has held that the probable cause

determination is made through consideration of “the totality of


       1
      Daniels raised this argument in his pro-se supplemental
brief filed with our permission.
                                                   9
the circumstances.”         Illinois v. Gates, 462 U.S. 213 (1983).                     In

addition, the Court has noted that “even in making a warrantless

arrest an officer ‘may rely upon information received through an

informant, rather than upon his direct observations, so long as

the informant’s statement is reasonably corroborated by other

matters within the officer’s knowledge.’”                       Id. at 242 (quoting

Jones v. United States, 362 U.S. 257, 269 (1960)).

       An    objective   review        of   “totality      of    the    circumstances”

supports the conclusion that there was sufficient probable cause

for Daniels’ arrest.             The police officers planned their take-

down on the basis of information provided by their informant,

Jackson, who had arranged to meet with Daniels to perform a drug

deal in the parking lot of the Bi-Lo grocery store.                           While the

officers were waiting, they witnessed a red Ford Expedition pull

into   the    parking    lot     and    they     noticed     that      the   driver   was

looking around and not getting out of his vehicle.                           Detectives

Kimbell      and   Robson        stated     that     these       circumstances        were

suspicious because they knew from training and experience that

suppliers sometimes conduct more than one transaction in the

same location.      (J.A. 130, 169.)               Upon Daniels’ arrival in the

parking lot, police noted that the appearance of Daniels and his

burgundy Impala corroborated the description that Jackson had

earlier     provided.       In    addition,        Jackson      had    identified     both

Daniels and Edwards, who the police had already suspected of

                                            10
engaging in illegal drug trafficking.                    Once Edwards had entered

the    passenger        side    of     Daniels’       Impala,      the     officers      had

determined that there was sufficient probable cause to initiate

the take-down.          In view of this sequence of events, as exhibited

in the record, we conclude that “the facts and circumstances

within    the      officers’      knowledge”        supported      their    belief       that

Daniels      was    committing        an    offense    and     that      probable     cause

existed for his arrest.              See Manbeck, 744 F.2d at 376.

                                             B.

      Next, Daniels contends that the district court erred in

refusing to suppress the four bundles of heroin obtained by the

arresting officers’ unconstitutional strip search of his person.

      Upon      arrest    an    officer       may    search     the      person     of   the

arrestee and the area within the arrestee’s immediate control.

Illinois v. Lafayette, 462 U.S. 640, 644 (1983).                           However, such

searches must be reasonable under the Fourth Amendment.                             In Bell

v.    Wolfish,      441    U.S.      520,    559     (1979),       the    Supreme     Court

prescribed         an     analytical         framework         for       assessing       the

reasonableness of a search that balances the need for the search

against any invasion of personal rights that may result.                                 The

inquiry involves a contextual weighing of the totality of the

circumstances, including “the scope of the particular intrusion,

the   manner       in   which   it    is    conducted,       the     justification       for

initiating it, and the place in which it is conducted.”                           Id.

                                             11
       At the suppression hearing Detective Kimbell testified that

he    physically    pulled       the   waistband      of   defendant’s       sweatpants

outward approximately three inches and looked straight down into

his    underwear    with    a    flashlight     and    that      he    did   so   without

exposing Daniels to the public.                 (J.A. 151.)           Detective Robson

testified that he observed Det. Kimbell “when he was pulling out

Daniels’ pants, and looking down into the crotch area” and added

that Det. Kimbell “pulled [Mr. Daniels’ pants] down, lifted them

in front, looked down and found the heroin under his scrotum

area.”     (J.A.     181-82      (emphasis      added).)         Robson’s       testimony

suggests the possibility that Daniels’ genital area may have

been    momentarily    exposed.           However,     even      assuming    that    this

occurred, there is no proof that Daniels was exposed to anyone

other than Det. Kimbell.               The search occurred at night and away

from Albemarle Road and a phalanx of male officers surrounded

Daniels as he was being searched.                    These facts indicate that

whatever intrusion occurred was limited in scope.

       Moreover, employing the totality of the circumstances test

established in Bell, we find that the slight risk that Daniels

was exposed to the public was far outweighed by various factors

supporting the reasonableness and justification for the search.

Daniels    was     arrested      and    searched     at    the    culmination       of    a

planned    take-down       for    drug    distribution--an            offense     that   is

commonly associated with the possession of weapons and illegal

                                           12
drugs.    See Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)

(noting the significance, under the Bell inquiry, of whether the

relevant offense was “commonly associated by its very nature

with the possession of weapons or contraband.”).                  As a result,

the arresting officers’ search was justified not only by their

suspicion    that     Daniels    was    concealing     contraband,    but     also

because Daniels presented a legitimate danger to their personal

security.     The police initiated the arrest only after Daniels

and Corey Edwards had been identified and after much of the

information concerning the planned drug transaction provided by

the    informant    Jackson     had    been   corroborated.       During    their

search of Daniels’ person, the officers first searched the outer

pockets of Daniels’ clothes.             When they initially did not find

any    weapons   or   drugs,    they     then    proceeded   to   look   in    his

underwear, where they found four bundles of heroin.                  (J.A. 149-

50.)     Also incident to the arrest, the police searched Daniels’

Impala, where they found approximately $2,200 in cash and two

cell phones.       (J.A. 132, 170.)

       In United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997)

the defendant objected to what he called “an unconstitutional

strip search” conducted incident to arrest when his pants were

removed inside of a police van.                 We concluded that the police

officers acted reasonably under the circumstances in attempting

to find missing money and that the defendant “was not subjected

                                         13
to an unnecessarily intrusive search.”             Id. at 256.         The facts

in Dorlouis      are   sufficiently    analogous    to   the   facts    in   this

case, and after weighing all of the circumstances, we affirm the

district court’s ruling.         The search of Daniels’ underwear was

not gratuitous in light of the officer’s reasonable suspicion

that illegal contraband was concealed in his pants.               There is no

clear showing that Daniels was exposed to the public and we find

that       the   police     officers    acted      reasonably     under       the

circumstances. 2

                                       C.

       Among the items seized from Daniels on the night of March

3, 2005, was a key which the officers had reason to believe

could access Apartment 106 of 1305 Kelston Place.                 (J.A. 749.)

While Daniels originally consented to the detectives’ use of the

key to access the residence, he ultimately revoked his consent.

(J.A. 173, 749.)          Later the officers inserted the key into the

door lock of Apartment 106, which was accessible to the public.

The officers turned the key to confirm that it operated the lock


       2
       In support of his argument, Daniels cites Amaechi v. West,
237 F.3d 356, 365 (4th Cir. 2001) where we found a strip search
to be “unconstitutionally unreasonable.”    But the Amaechi case
is easily distinguishable in several respects, as it involved a
female victim who was subjected to the “public exposure,
touching, and penetration of her genitalia and kneading of her
buttocks during a search incident to arrest for a misdemeanor
noise violation . . . where no security risk or threat of the
concealment or destruction of evidence was present.”      Id. at
362.
                                       14
but did not enter the apartment.                  (J.A. 136.)       Daniels argues

that the detectives’ conduct in inserting the key into the lock

constituted an unreasonable warrantless search in violation of

his Fourth Amendment rights.

     Our     sister     circuits     are    not     in    accord    on    whether     a

defendant has a reasonable expectation of privacy in an external

door lock accessible from a public space.                   The First and Sixth

Circuits have ruled that there is no reasonable expectation of

privacy in such a lock and that the insertion and turning of a

key therein does not constitute a search.                  See United States v.

Salgado, 250 F.3d 438, 456-57 (6th Cir. 2001); United States v.

Lyons, 898 F.2d 210, 213 (1st Cir. 1990).                   The Seventh Circuit,

on the other hand, has concluded that there is a reasonable

expectation of privacy in a keyhole because a keyhole contains

information that is not readily accessible to strangers.                      United

States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991).

     We    need   not    rule   on   the        precise   issue    of    whether    the

officers’ insertion and turning of a key into the door lock of

Apartment 106 contravened the Fourth Amendment, because even if

we assume that it was a search, it was not unreasonable.                            The

officers’ action was a means of identifying the apartment as one

to which the defendant had access.                    The officers employed a

legitimate    crime     investigative       procedure      that    far    outweighed

whatever minimal intrusion that Daniels may have experienced.

                                           15
In this respect, the act is similar to the use of a narcotic

detection     dog    to     “sniff”     personal       luggage--a    non-intrusive

procedure that has been deemed constitutional.                    United States v.

Place, 462 U.S. 696, 706-07 (1983).                  Indeed, we are aware of no

precedent that has determined such conduct to be unreasonable,

for as the Seventh Circuit observed in Concepcion, “the privacy

interest [in a keyhole] is so small that the officers do not

need probable cause to inspect it.”                  Id. at 1173.       We therefore

affirm    the      district    court’s       finding     that     Daniels’       Fourth

Amendment rights were not infringed by the officers’ use of a

key in the door lock of Apartment 106.

                                         D.

       Daniels     next     argues    that     the   district     court    erred     in

refusing to suppress evidence obtained from the execution of a

search warrant for Apartment 106 of 1305 Kelston Place.                         Daniels

claims    that     the    government’s    affidavit      supporting       the    search

warrant omitted material information relating to the reliability

of the confidential informant, Adrein Jackson.                       Specifically,

the   affidavit     failed    to     mention    that    Jackson   had     been   found

engaging in drug trafficking activity on three occasions in the

days prior to, and including, the day the search warrant was

sought.       In addition, it failed to mention that Jackson had

attempted to flee from law enforcement on the day of his arrest

in    March   of    2005.      Daniels    contends      that    because    of    these

                                         16
omissions,           the    supporting         affidavit              was    constitutionally

insufficient and that the evidence obtained from the seizure

must     be    excluded        under     the     “fruit          of    the    poisonous       tree

doctrine.”       Wong Sun v. United States, 371 U.S. 471, 484 (1963).

       The Fourth Amendment states that “no warrants shall issue,

but upon probable cause supported by oath or affirmation, and

particularly          describing       the     place        to    be    searched,      and    the

persons or things to be seized.”                         U.S. Const. amend IV.                Even

upon de novo review, “the determination of probable cause by the

issuing       magistrate       is     entitled      to      great      deference”      from   the

reviewing court.            United States v. Hodge, 354 F.3d 305, 309 (4th

Cir. 2004).          Indeed, “the duty of a reviewing court is simply to

ensure        that    the      magistrate        had        a    substantial        basis     for

concluding that probable cause existed.”                           Illinois v. Gates, 462

U.S.   213,      238-39      (1983)      (alterations            and    internal       quotation

marks omitted).             There is a “strong ‘presumption of validity

with respect to the affidavit supporting the search warrant.’”

United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)

(quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)).

       By      alleging        that     the     supporting             affidavit       contained

deliberately           false        statements         or        omissions,       Daniels      is

referencing the exception established in Franks v. Delaware, 438

U.S.   154      (1978)      allowing      a    defendant,             “in    certain   narrowly

defined circumstances . . . [to] attack a facially sufficient

                                               17
affidavit.”       Colkley, 899 F.2d at 300.                       In Franks, the Supreme

Court    created      a    rule    of     “limited     scope”       which      allows     for    a

Defendant to obtain a hearing in order to challenge a facially

sufficient      affidavit         after      making    a    preliminary         showing      that

“(1) the affidavit in support of the search warrant contained

statements       or       omissions       that      were         deliberately        false      or

demonstrated a reckless disregard for the truth, and (2) that

the challenged statements or omissions were essential to the

magistrate judge’s finding of probable cause.”                               438 U.S. at 155-

56.     If a Franks hearing is granted and the affiant’s material

falsity    or    recklessness           is   found     by    a     preponderance        of    the

evidence, the warrant must be voided and the evidence procured

must be excluded.              Id. at 156.

      Daniels has not made the prerequisite showing of intent or

recklessness.             In    Colkley,      we    emphasized         that     to    establish

“intent,” a defendant cannot merely claim that information was

knowingly or negligently omitted from an affidavit.                                 899 F.2d at

300-01.     Instead, the omissions must be revealed as “designed to

mislead, or . . . made in reckless disregard of whether they

would    mislead,         the     magistrate.”             Id.    at    301     (emphasis       in

original).       In this case, Daniels has not demonstrated that the

affiants,       Detectives        Robson      and     Kimbell,         had    any    intent     to

mislead.     Nor will we infer any intent or recklessness from the



                                               18
mere fact of the omission.                     See id. (refusing to infer bad

motive under Franks based upon the fact of an omission alone).

        Furthermore, even if Daniels had satisfied the first prong

by showing intent, his pursuit of a Franks hearing would have

floundered for failure to prove the materiality of the omitted

information.           To be material, an omission “must do more than

potentially affect the probable cause determination: it must be

‘necessary to the finding of probable cause.’”                              Colkley, 899

F.2d at 301 (quoting Franks, 483 U.S. at 156).                          Therefore, we

must determine whether if the information relating to Jackson’s

arrests had been included in the affidavit, sufficient probable

cause    would        have    still    existed      under   the     “totality    of   the

circumstances” test established in Illinois v. Gates, 462 U.S.

213 (1983).

        Despite the fact of Jackson’s ongoing drug trafficking, in

October     of        2004,     he     had     provided     police     with     reliable

information       about       the    drug     conspiracy    involved    in    the   case,

including      information          implicating     Daniels    that    was    ultimately

corroborated.           In addition, all of the information he gave to

detectives       on    March    3,    2005,     that   could   be    corroborated     was

corroborated, including the arrival of Defendant at the location

of the drug deal in a vehicle matching the description he had

earlier offered.              See United States v. Lalor, 996 F.2d 1578,

1581    (4th   Cir.      1993)       (“[a]n    important    factor     in    determining

                                               19
whether an informant’s report establishes probable cause is the

degree to which it is corroborated.”).                          Moreover, additional

information in the affidavit lent further support for probable

cause.      The detectives noted that they had linked Apartment 106

to Toria Douglas, who was identified through birth records as

the mother of Daniels’ baby girl, Semira Douglas, born on August

17, 2004.        The detectives also stated in the affidavit that a

key seized from Daniels had unlocked the door lock of Apartment

106.      Taken as a whole, the information in the affidavit was

substantial and detailed and provided a “substantial basis” for

probable cause.           As the district court observed, “[Jackson was]

a   bad    actor     providing          reliable       information.”            (J.A.   341.)

Therefore,     while       the    omitted     reference        to     Jackson’s     illegal

conduct did relate to his reliability, it was not material in

the Franks context--it would not have changed or altered the

magistrate’s finding.              See United States v. Miller, 925 F.2d

695,      699-700    (4th        Cir.     1991)        (reliability        of    informant’s

information may be inferred from factual circumstances, even if

affidavit otherwise fails to assert informant’s reliability).

       Viewing      the   circumstances           as    a   whole    and    according     the

state judge appropriate deference, we affirm the district court

ruling on the search warrant application.                           In doing so, we are

mindful of the stringent standard that must be met to convene a



                                             20
Franks       hearing   and     find       that      Daniels    failed     to       make    the

prerequisite “intent” or “materiality” showings.



                                            III.

       Daniels contends that his Fifth and Sixth Amendment rights

were     violated       by        the     district          court’s     offense           level

enhancements.           The        district         court     applied     a     four-level

enhancement       based      on     defendant’s         role     as     leader      of     the

conspiracy and a two-level enhancement based on a finding that

Daniels obstructed or attempted to obstruct the administration

of justice.       We review factual findings made by a district court

at sentencing for clear error.                        See, e.g., United States v.

Stewart, 256 F.3d 231, 253 (4th Cir. 2001).

                                               A.

       United States Sentencing Guideline § 3B1.1(a) directs the

sentencing court to increase a defendant’s offense level by four

if   “the     defendant      was    an    organizer      or    leader    of    a    criminal

activity       that    involved         five     or    more    participants         or     was

otherwise extensive.”

       The     district      court       observed      that    Daniels        exercised       a

leadership role in a criminal activity that involved five or

more participants or was otherwise extensive.                           (J.A. 1842-43.)

This activity included, among other things, Daniels’ recruitment

of accomplices such as Charles McCombs as an enforcer.                               Daniels

                                               21
made trips to New York to obtain drugs from a source and he

distributed these drugs through Adrian Jackson, William Boyd,

Corey Edwards and others in the vicinity of Beatties Ford Road

in Charlotte.       Although Daniels claims that Raheem Williams was

not a part of the conspiracy, the testimony of other witnesses

supported his inclusion.              Finally, Daniels’ girlfriend, Toria

Douglas, worked under his supervision and control by packaging

drugs and purchasing firearms.                 Because the record is replete

with    evidence    that    Daniels      played      a    leadership      role    in       an

extensive conspiracy, the district court did not clearly err in

applying the four-level enhancement under § 3B1.1(a).

                                          B.

       Section    3C1.1    of   the     Sentencing        Guidelines      directs          the

sentencing       court    to    apply     a     two-level       enhancement           to     a

defendant’s offense level where defendant “willfully obstructed

or     impeded,     or     attempted      to      obstruct         or    impede,           the

administration      of    justice     with     respect     to   the     investigation,

prosecution,       or    sentencing     of     the       instant    offense      of        the

conviction”       and     the   obstructive          conduct       related       to        the

defendant’s offense of conviction and any relevant conduct or a

closely related offense.          U.S.S.G. § 3C1.1.             The Commentary to §

3C1.1 states that the enhancement should apply to conduct that

includes, but is not limited to: “(a) threatening, intimidating,

or otherwise unlawfully influencing a codefendant, witness or

                                          22
juror,   directly        or   indirectly,       or    attempting    to    do    so;    (b)

committing, suborning; or attempting to suborn perjury . . . ;

(c)   producing     or    attempting      to    produce    a    false,    altered,      or

counterfeit document or record during an official investigation

or judicial proceedings . . . .”

       The district court found that Daniels forced William Boyd

to    write   a   letter      recanting     his      earlier     statements     to     law

enforcement       implicating      Daniels        and    Toria     Douglas      in     the

distribution      of     cocaine    and        heroin.         During    trial,       Boyd

testified that Daniels did not verbally threaten to harm him if

he refused to write the letter.                However, Boyd explained that he

was sitting in the recreation yard of the jail when Daniels

stood over him and demanded that Boyd write the letter.                               Boyd

stated that he was intimidated by Daniels’ physical presence and

that he felt that he had no choice other than to comply.                             Based

upon this information in the record, the jury found beyond a

reasonable    doubt      that   Defendant       had     intimidated      Boyd   through

this conduct.       We likewise conclude that the district court did

not err in applying the two-level enhancement under § 3C1.1.



                                          IV.

       In Count One of the Superseding Indictment, Daniels was

charged with conspiracy to possess with intent to distribute

heroin and cocaine in violation of 21 U.S.C. §§ 841(a) and 846.

                                          23
In   its       jury    instructions,       the    district    court   outlined        the

elements required to convict Daniels under the conspiracy charge

as well as under the substantive allegations of possession with

intent to distribute contained in Counts Five and Six.                            (J.A.

1708-1731.)           However, the court failed to deliver a supplemental

instruction relating to the penalty subsection of 21 U.S.C. §

841(b)     regarding       the    drug     amount    attributable     to   individual

defendants        in     the     alleged    conspiracy.        Subsection         841(b)

presents a graduated penalty scheme establishing three different

sets      of    statutory      minimum      and     maximum   sentences     for    drug

distribution           offenses    based     upon     drug    quantity.         See     §

841(b)(1)(A), (B), (C).

       Daniels contends that the district court erred in failing

to expressly instruct the jury that it needed to make a finding

as   to    the    drug     quantity      specifically     applicable       to   him   in

accordance with Pinkerton v. United States, 328 U.S. 640 (1946).

He notes Fourth Circuit precedent holding that such an error

infringes a defendant’s Sixth Amendment right to trial by jury.

See United States v. Collins, 415 F.3d 304, 313-14 (4th Cir.

2005) (vacating defendant’s sentence and remanding because of

district court’s failure to properly instruct jury on how to

determine drug amounts); United States v. Ferguson, 245 Fed.

Appx. 233, 237 (4th Cir. 2007) (same); United States v. Irvin, 2

F.3d 72, 78 (4th Cir. 1993) (mandating that sentencing court

                                             24
consider    the      quantity      of    narcotics         attributable       to     each    co-

conspirator         by     relying      on     the     principles           set     forth     in

Pinkerton).

     The Government contends that when considered together, the

district    court’s         jury    instructions           and    the   language      in     the

special    verdict         form    comply      with    the       mandate     propounded       in

Collins    and      that     Daniels’        Sixth    Amendment         rights      were     not

violated.

     Normally, the issue of whether the district court properly

instructed the jury on the law is reviewed de novo.                                       United

States v. Thompson, 421 F.3d 278 (4th Cir. 2005).                                    However,

because Daniels failed to object to the adequacy of the drug

quantity instruction at the time it was given, we review for

plain error.         United States v. Foster, 507 F.3d 233, 249 (4th

Cir. 2007) (citing United States v. Olano, 507 U.S. 725, 732

(1993)).       Under       Federal      Rule   of     Criminal      Procedure        52(b),    a

court     of      appeals         may    correct           a     district         court     upon

identification of an “error” that is “plain” and that “seriously

affect[s]      substantial         rights.”           In        addition,    an     appellate

court’s reversal under plain error review is incumbent upon a

finding     that     the     error      “seriously             affect[s]    the     fairness,

integrity      or        public    reputation         of       judicial      proceedings.’”

Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S.

1, 15 (1985)).

                                               25
     Both the government and Daniels agree that our analysis

must be guided by the parameters established in United States v.

Collins,    415   F.3d   304   (4th    Cir.      2005).    Collins   involved      a

similar situation in which a defendant challenged his conviction

under 21 U.S.C. §§ 841(a) and 846, citing the district judge’s

failure to instruct the jury to apply Pinkerton principles in

determining   the   drug   quantity        for    the   penalty   purposes    of   §

841(b). 3   This Court held that the threshold drug quantities for

penalty purposes under § 841(b) must be determined by a jury

beyond a reasonable doubt. 4          Furthermore, we held that a district

court must instruct a jury that in establishing the threshold

drug quantities, it must, pursuant to Pinkerton, determine the

quantity    attributable       to   each      co-conspirator--that      is,    the


     3
        In Pinkerton v. United States, 328 U.S. 640 (1946), the
Supreme Court held that in a criminal conspiracy case, a
defendant can only be held liable for conduct that is within the
scope of the criminal agreement and reasonably foreseeable as a
natural consequence of the agreement.
     4
        The progression of our analysis was summarized in United
States v. Brooks, 524 F.3d 549, 557-61 (4th Cir. 2008).       We
first held in United States v. Irvin, 2 F.3d 72, 77 (4th Cir.
1993) that a trial court must determine by a preponderance of
the evidence the drug quantity attributable to a particular
defendant.    We were then guided by the Supreme Court’s
conclusion in Apprendi v. New Jersey that “any fact that
increases the penalty . . . beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”   530 U.S. 466, 490 (2000).   Accordingly, in
United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en
banc), cert. denied, 535 U.S. 109, 122 S. Ct. 2296, 152 L. Ed.
2d 1053 (May 28, 2002), we held that a jury must determine the
drug quantity to establish a defendant’s statutory sentencing
range under 21 U.S.C. § 841(b).
                                        26
amount that was in furtherance of the conspiracy and reasonably

foreseeable to each defendant as opposed to the conspiracy as a

whole.      Collins, 415 F.3d at 314 (citing United States v. Irvin,

2 F.3d 72 (4th Cir. 1993)).

      At the close of Daniels’ trial the jury was instructed that

a conspirator “is responsible for offenses committed by another

co-conspirator if the conspirator was a member of the conspiracy

when the offense was committed, and if the offense was committed

in   furtherance       of,    or   as   a   foreseeable         consequence        of,    the

conspiracy.”       (J.A.       1717.)         This      satisfactorily         references

Pinkerton principles as to the general conspiracy offense under

§ 846.      However, an equivalent supplemental instruction was not

provided     as   to    the    sentencing          provision     in     §    841(b)       that

addresses drug quantity.            The only instruction given to the jury

relating to drug quantity reads:

      Your decision regarding the quantity and type of
      substance must be unanimous as to each substance and
      each amount.    You will be provided with a special
      verdict form that specifically addresses the drug and
      quantity to be considered. (J.A. 1715.)

      The     Government       argues       that       the   special        verdict       form

supplemented      and        compensated         for     omissions      in        the    jury

instruction.       That       special       verdict      form    asks       the    jury    to

determine     whether        defendant      was     guilty      of    the     substantive

conspiracy offense and then asks whether “one kilogram or more

of a mixture and substance containing a detectable amount of

                                            27
heroin was reasonably foreseeable” to Defendant and whether “500

grams or more of a mixture and substance containing a detectable

amount of cocaine reasonably foreseeable” to Defendant.                                      (J.A.

1762.)      After oral argument, the Government noted an unpublished

opinion         by    another         panel   of   this   Court    in       United   States     v.

Howard, No. 07-4146, 2009 U.S. App. LEXIS 1716 (4th Cir. Jan.

29, 2009). 5              In that case, this Court addressed a case involving

three defendants in which the evidence that the overall drug

quantity was attributable to each of the three defendants was

“overwhelming and essentially uncontroverted” and it was found

that the Collins requirement was satisfied by a special verdict

form.            Howard,          2009    U.S.     App.    LEXIS        1716,       at     *11-15.

Unpublished opinions are not binding precedent in this Circuit,

and we decline to hold that Collins error can be corrected by a

special         verdict       form.       Furthermore,      the    facts       in    Howard    are

distinguishable from the facts in this case.                                Defendant Daniels

was one of eight defendants charged in a thirteen-count Third

Superseding Indictment charging conspiracy in the possession and

distribution of both heroin and cocaine.                           The evidence in this

case       as        to     the       respective    amounts       of    these        two    drugs

attributable to the numerous defendants was not overwhelming and

uncontroverted.                   A     careful    application         of     the    principles

       5
      Supplemental submissions were filed by the Government and
Daniels pursuant to Rule 28(j) of the Federal Rules of Appellate
Procedure.
                                                   28
established in Collins and reiterated in Brooks was manifestly

important.        The    complexity         of    the     evidence    in    this       case

compelled     a   jury     instruction           satisfying    the    principles         of

Collins     and   omissions        in   that       jury    instruction       were       not

alleviated by the special verdict form.

     In    Collins,      we   stated       that    “for    purposes   of    setting       a

specific threshold drug quantity under § 841(b), the jury must

determine what amount of [drugs] was attributable to [defendant]

using Pinkerton principles.”                 415 F.3d at 314.              The special

verdict form submitted to the jury superficially refers to the

Pinkerton principles when it asks the jury if certain quantities

of drugs were “reasonably foreseeable to Daniels.”                         However, we

find that the jury in this case was not sufficiently instructed

on the factors necessary to make an informed determination of

the threshold drug quantity under § 841(b).                    For instance, under

Pinkerton,    the   jury      must   determine       not    only   the     quantity      of

drugs “reasonably foreseeable” to Daniels, but also that the

drugs were distributed “in furtherance of the conspiracy.”                               In

addition, the jury must be instructed to determine the amount of

drugs     “attributable”      to     the    individual        defendant     as     a    co-

conspirator, as opposed to the quantity of drugs distributed by

the entire conspiracy.          At no point, in either the instructions

or the special verdict form, was the jury instructed to assess



                                            29
the amount of drugs “attributable” to Daniels alone, rather than

to the conspiracy in its entirety.

        The       importance        of    explicitly         instructing        a    jury       under

Collins          is    poignantly        revealed       by   the    circumstances          in    this

case.        The jury’s decisions on whether or not one kilogram of

heroin and 500 grams of cocaine were attributable to Daniels

under        §    841(b)      determined      whether         or    not     Daniels       faced    a

mandatory life sentence under Count One.                             This underscores the

need        for       an   individualized         sentence     due     to    the     significant

liberty           interest     at    stake.          To      protect      the      need    for     an

individualized               sentence,       juries          must    be      thoroughly           and

explicitly            instructed;        courts    cannot      assume       that    the     complex

issues relating to Pinkerton and drug quantity are obvious or

self-explanatory.              In light of these concerns, we conclude that

Collins’ weighty mandate may not be satisfied by an isolated and

perfunctory reference in a special verdict form.

        The jury was not sufficiently informed in accordance with

Collins.              This infringed Daniels’ Sixth Amendment rights and

constituted plain error under the Olano analysis.                                   In addition,

Daniels’ mandatory life sentence on the conspiracy count is more

punitive              than    the    statutory           default       sentence           under    §

841(b)(1)(B), 6 which provides for a sentencing range of ten years


        6
        Daniels has at least one prior drug conviction that was
noticed by the government which raises the statutory maximum
                                                   30
to life.        Because a life sentence is not lightly imposed, we

find that Daniels’ substantial rights were affected.

       Having     found    that    the     three      threshold        prerequisites        of

plain error review have been satisfied, we turn to the question

of whether to exercise our discretion under Rule 52(b) to notice

the    forfeited       error.      The     Supreme       Court    has       held    that    an

appellate    court’s       discretion          is   appropriately        exercised        only

when the error “‘seriously affect[s] 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)).     The Government argues that we should decline to notice

the     error       because        “the        overwhelming        and        essentially

uncontroverted evidence supported the conclusion that Defendant

was responsible for more than 1,000 grams of heroin and 500

grams of crack cocaine.”                (Appellee Br. 32 (citing Foster, 507

F.2d    at   252;       United    States       v.    Cotton,     535    U.S.       625,    633

(2002)).)

       In United States v. Cotton, the Supreme Court found a Sixth

Amendment       error     when    the     government      failed       to    allege       drug

quantity     in   an     indictment       under      §   846    consistent         with    the

principles set forth in Apprendi v. New Jersey, 530 U.S. 466

(1990).      See Cotton, 535 U.S. at 631-32.                      However, the Court



sentencing range contained                in    §    841(b)(1)(B)       to    between      ten
years and life in prison.
                                               31
declined to notice the infringement on plain error review in

light     of   the     “overwhelming”       and    “essentially     uncontroverted”

evidence       that    supported     the     district     court’s    drug   quantity

determination.          Id. at 633.        The Cotton precedent has recently

been applied in United States v. Foster, a case involving a

challenge to jury instructions for failing to cite Pinkerton

principles for drug conspiracy charges.                      See 507 F.3d at 252.

In Foster, the Collins error was avoided due to “overwhelming

and     essentially      uncontroverted”           evidence    in   the   record      of

defendant’s responsibility for an amount in excess of 50 grams

of crack.       507 F. 3d at 250-51.             The government established that

Foster was a major distributer of crack in Lexington Terrace

neighborhood of Baltimore City, “where perhaps over fifty grams

of    crack     were    sold    on    a    daily    basis,    to    continue    for    a

substantial period of time.”               Id. at 252.        The court noted that

“[u]nquestionably,         if   the       jury    was   properly    instructed      per

Collins,       the      government’s        overwhelming       evidence        of   the

substantial quantities of crack reasonably foreseeable to Foster

would have set the maximum sentence at life imprisonment. . . .” 7

Id. at 252.


      7
         In United States v. Davis, a Collins error was not
noticed under harmless error review for several co-conspirators
because of overwhelming evidence of their responsibility for
amounts in excess of 50 grams of crack. 270 Fed. Appx. 236 (4th
Cir. 2008).   The court concluded that no rational jury could
attribute less than 50 grams of crack to each defendant.    The
                                            32
     At      the    outset    of        our    analysis,       we    observe       significant

factual differences between Foster and the present case.                                First,

Count   One    of     the    Superseding         Indictment          filed    in    this    case

establishes a much higher threshold for conviction both in terms

of the number and quantity of drugs alleged.                                 Instead of the

threshold of 50 grams of cocaine alleged in Foster, Daniels is

charged with conspiracy to distribute 1,000 grams or more of

heroin and 500 grams or more of cocaine.                              Therefore, we must

appraise the amount of evidence on drug quantity attributable to

Daniels      and     how     it     corresponds         with        the    relatively       high

threshold alleged for each separate drug.

     We      find    that     there       is    overwhelming          and     uncontroverted

evidence     that     over    500       grams    of    cocaine       was    attributable      to

Daniels.           Evidence       was     submitted      regarding           the   search     of

Apartment 106 of 1305 Kelston Place, a residence which Daniels

had access to and control over.                        Several police officers and

forensic chemists testified in detail about the various items

obtained from the search, including the seizure of more than 500

grams   of    cocaine. 8          The    record       therefore       contains      solid   and

essentially          unassailable              evidence,        both         physical        and


court noted that “[t]he evidence at trial showed that, even by
conservative estimates, most [Defendants] were responsible for
many thousands or tens of thousands of grams of crack.” Id. at
254-55 (emphasis in original).
     8
        The Presentence Investigation Report (“PSR”) determined
that a total of 1,097 grams of cocaine was seized from the
apartment at 1305 Kelston Place. (J.A. 1882.)
                                                33
testimonial, indicating that more than the threshold quantity of

cocaine       alleged      in    the     conspiracy        charge    was      directly

attributable to Daniels.

       However, we do not find equally compelling evidence that

the quantity of heroin attributable to Daniels surpassed the

1,000 gram threshold alleged in the conspiracy charge.                       The most

convincing         evidence     confirming        Daniels’    responsibility        for

heroin was in the form of the over 200 grams of heroin seized

from the 1305 Kelston Place residence 9 and the 8 grams of heroin

seized from Daniels’ person when he was arrested in the parking

lot of the Bi-Lo grocery store.                   The remaining trial evidence

concerning Daniels’ ties to heroin was in the form of testimony

from       co-conspirators,      most    of     whom   did   not    testify    as   to

specific quantities of heroin expressed in grams.                     In addition,

the credibility of these co-conspirators was heavily contested

on     cross-examination,         meaning       that   a     jury   could     ascribe

correspondingly less weight to their statements.                     For instance,

in order to reach the one kilogram threshold for heroin, the

jury       would   have   to    rely    heavily    upon    the   testimony     of   co-

conspirator Charles McCombs, when he stated that he traveled

with Daniels to New York on three occasions in the beginning of

2005 to purchase what he estimated to be 300 grams of heroin at

       9
        The PSR determined that a total of 245.5 grams of heroin
was seized from the apartment at 1305 Kelston Place.       (J.A.
1882)).
                                           34
a time.        (J.A. at 1394-95, 1400-05.)                However, not only was this

testimony        uncorroborated,        but      McCombs        admitted      on     recross-

examination that he never weighed the heroin or witnessed it

being weighed.           (J.A. 1499-1501.)

       Considered         together,     the        evidence          revealing       Daniels’

responsibility for 1,000 grams of heroin is neither overwhelming

nor uncontroverted.           Although there is solid evidence concerning

the combined seizure of up to 250 grams of heroin from Daniels’

person and from the apartment at 1305 Kelston Place, much of the

remaining        testimonial         evidence       pertaining          to    heroin       was

anecdotal,        uncorroborated       and    contested         on    cross-examination.

Even if the jury had determined that one kilogram of heroin was

involved in the conspiracy (the quantity assessed in the PSR),

it   is       possible    that   a    properly      instructed         jury    could      have

rationally attributed a lesser quantity to Daniels.                                See United

States v. David, 83 F.3d 638, 648 (4th Cir. 1996) (noticing

plain error for failure to instruct on an element of a crime

upon      a    determination     that       “a     jury     could      conceivably        have

concluded . . . that [the omitted element] was not ultimately

proven”).        Therefore we conclude that a jury could conceivably

have found that less than 1,000 grams of heroin was attributable

to   Daniels.        The    disparity       between       the   evidence      of     quantity

attributable        to    Daniels     and    the    amount      charged       is    far   less

dramatic than was manifested in Foster.                     A contrary ruling would

                                              35
not     comport       with     a       common    sense        interpretation         of     the

“overwhelming and essentially uncontroverted evidence” standard

that serves to protect the fairness, integrity and reputation of

the judicial process.

       Having determined it appropriate to exercise our discretion

under       Rule    52(b),       we     are     again       directed        by    Collins   in

prescribing the appropriate remedy.                        We vacate and remand to the

district      court      while     withholding            judgment     on   the    conspiracy

count for thirty days. 10               The Government may elect to apply the

relevant default penalty provision in § 841(b)(1)(B) (providing

for    a    sentence      of     ten    years        to    life   in    prison),      or    the

Government         may   request        that     the        conspiracy       conviction      be

reversed and institute a new trial.                          See Collins, 415 F.3d at

315.

                                                                  AFFIRMED IN PART,
                                                                   VACATED IN PART,
                                                      AND JUDGMENT WITHHELD IN PART




       10
        Although Daniels’ sentence was improper, his conviction
under Count One for conspiracy to distribute heroin and cocaine
is legitimate since it does not depend upon a determination as
to the amount or type of narcotics at issue.   See Collins, 415
F.3d at 314.
                                                36
DUNCAN, Circuit Judge, dissenting:

       I       respectfully      dissent      from    part       IV    of   my    colleague’s

opinion and the resulting decision to remand.                                Collins holds

that       a     jury     must    determine         “the     quantity        of     narcotics

attributable to each coconspirator by relying on the principles

set forth in Pinkerton.”                  United States v. Collins, 415 F.3d

304, 312.         Therefore, by its plain terms, our precedent requires

nothing more than a jury determination that a given quantity of

drugs was “reasonably foreseeable” to a defendant.                                 To decide

otherwise        would     be    to    turn   our     notion      of   conspiracy,       which

entails coconspirator liability for reasonably foreseeable acts,

on its head.            See Pinkerton v. United States, 328 U.S. 640, 647-

48 (1946) (noting the “principle” that “the overt act of one

partner in crime is attributable to all” where it is “within the

scope of the unlawful project”).                      The notion of attribution in

Collins         does      not     require      greater         proof        of     individual

responsibility for a substantive crime, including an amount of

drugs       distributed,         than     does       our     jurisprudence          following

Pinkerton.          The drugs “attributable” to a defendant are those

reasonably foreseeable to him based upon his participation in

the conspiracy.           See Collins, 415 F.3d at 312 (finding it is the

“amount of narcotics attributable to [an individual defendant]”

and    not      “the    amount    of    narcotics      distributed          by    the   entire

conspiracy”        that    is    determinant         under   §    841(b)).         Thus,   any

                                              37
narcotics    that     were   distributed   by    the   conspiracy   but   not

reasonably foreseeable to an individual defendant--and therefore

not, under Pinkerton, properly attributable to him--may not be

considered in determining his sentence.

       In this case, pursuant to the special verdict form, the

jury found that the drug amounts in question were “reasonably

foreseeable to Jermal Daniels.”        J.A. at 1809.      This is all that

Collins requires.        There is no basis in the record to assume

that   the   jury’s    determination   was      inadequate.    I    therefore

respectfully dissent from the portion of the court’s opinion

finding a Collins violation.        Because I find no violation, I do

not join in the decision to reverse the judgment of the district

court and remand on this question.




                                     38
