                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4843


UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

TAUHEEDAH RICHARDSON,

                                            Defendant - Appellant.



                            No. 04-4122


UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

RICARDO DINNALL,

                                            Defendant - Appellant.



                            No. 04-4128


UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

BRUCE OKELLO JOSEPH, a/k/a Okello Bruce
Joseph,

                                            Defendant - Appellant.
                            No. 04-4163


UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

           versus

LIONEL STAINE,

                                            Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-02-60-H)


Argued:   March 18, 2005                  Decided:   April 15, 2005


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


ARGUED: Richard Clarke Speaks, Wilmington, North Carolina; Lewis
Alston Thompson, III, BANZET, BANZET & THOMPSON, Warrenton, North
Carolina; James M. Ayers, II, New Bern, North Carolina, for
Appellants. Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: W. Gregory Duke, BLOUNT & DUKE, Greenville,
North Carolina, for Appellant Ricardo Dinnall. Frank D. Whitney,
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                -2-
PER CURIAM:

     Defendants-appellants Tauheedah Richardson, Ricardo Dinnall,

Bruce Joseph, and Lionel Staine were convicted in federal district

court of conspiracy to distribute and to possess with the intent to

distribute more than 50 grams of cocaine base, a quantity of

cocaine, and a quantity of marijuana.               Staine and Dinnall were

convicted of conspiracy to unlawfully kidnap a person, and Joseph

was convicted of traveling in interstate commerce with intent to

promote   the   drug       conspiracy.         Appellants      challenge    their

convictions and sentences.          For the reasons that follow, we affirm

appellants’ convictions, but vacate their sentences and remand for

resentencing consistent with United States v. Booker, 125 S. Ct.

738 (2005).



                                          I.

     Appellants     were    tried    at    a   single   trial,   at   which   the

government presented extensive evidence linking them to a larger

drug conspiracy. A former member of the conspiracy, Rodney Pender,

testified that he was affiliated with both Staine and Dinnall, and

that both men sold crack cocaine in New Bern, North Carolina.                 J.A.

171-72.   Pender also testified that Richardson helped transport

cocaine   between   New     York    and    North   Carolina.      J.A.     177-78.

Finally, Pender testified that Joseph transported cocaine from New

York City to North Carolina, transferred the cocaine to Staine, and


                                       -3-
Staine gave it to Pender, who would “cook it” to convert it into

crack.1      J.A. 178-79, 184.      Other witnesses confirmed defendants’

involvement with the drug conspiracy. See, e.g., J.A. 241, 536-37,

562-65.

       Testimony also linked Staine and Dinnall to the kidnapping of

Rodney      Fisher,   who    was   murdered   by   his   kidnappers.   Pender

testified that Dinnall told Pender that Dinnall had participated in

abducting Fisher.       J.A. 169-70.     Pender also testified that Staine

was present when Fisher was murdered and supplied the gun for his

murder.       J.A. 162-64.

       At the conclusion of the government’s case, the district court

denied the defendants’ motion for a judgment of acquittal.              J.A.

912.       No defendant offered any evidence to rebut the government’s

case.       J.A. 902-03.

       After the jury convicted Staine and Dinnall of both the drug

conspiracy charge and the conspiracy to commit kidnapping, they

were sentenced to life imprisonment because of their responsibility

for the murder of Fisher, which implicated the murder cross-

reference in section 2A4.1(c) of the United States Sentencing


       1
      Pender testified that Joseph transported 700 grams of powder
cocaine from New York to North Carolina, where it was converted
into crack. Pender received “six ounces of that crack cocaine,”
which converts to over 170 grams of crack. See U.S.S.G. § 2D1.1
cmt. 10 (2004) (providing a conversion table indicating that one
ounce of drugs is the equivalent of 28.35 grams).          Pender’s
testimony thus supported the conclusion that Joseph was responsible
for the amount of crack charged in the indictment, i.e., over 50
grams.

                                       -4-
Guidelines.       Joseph was sentenced to 264 months for the drug

conspiracy and 60 months for the travel in interstate commerce, to

run concurrently. J.A. 1240. Finally, Richardson was sentenced to

324 months for the drug conspiracy.         J.A. 1289-90.      All defendants

appealed their convictions and sentences.



                                    II.

     The defendants raise multiple challenges to their convictions,

which we address seriatim.

     Staine and Dinnall both allege that they were entitled to a

new trial because the trial judge, after closing arguments, altered

the instructions to the jury regarding the charge of conspiracy to

kidnap, in violation of Federal Rule of Criminal Procedure 30.                A

violation of Rule 30, which provides that “[t]he court must inform

the parties before closing arguments how it intends to rule on the

requested   [jury]    instructions,”      requires    remand    only   if   the

violation resulted in prejudice.           United States v. Burgess, 691

F.2d 1146, 1156 (4th Cir. 1982); United States v. Horton, 921 F.2d

540, 547 (4th Cir. 1990).

     Staine and Dinnall allege that they were prejudiced because

the trial judge announced prior to closing arguments that he would

instruct    the   jury   in   accordance    with     the   elements    of   the

substantive offense of kidnapping, and their counsel’s closing

arguments tracked the elements of that offense.             They claim that


                                    -5-
the    judge’s    ultimate      instruction      of     the     jury   based     on    the

conspiracy       to    commit   kidnapping       undermined        their       counsel’s

credibility.

       We find these claims of prejudice unpersuasive.                         The trial

court permitted counsel for Dinnall and Staine additional time to

present supplemental closing arguments after the court announced

the    new     instructions,       and    counsel       could     have    used     their

supplemental arguments to correct any misconceptions by the jury.

Both counsel subsequently addressed the jury and specifically

discussed the elements of the conspiracy charge.                         J.A. 1040-44.

Additionally, Dinnall’s and Staine’s counsel were aware of the

court’s intention to use the instruction for kidnapping, a crime

for    which   their     clients    had   not    been    indicted,       and    made    no

objection.       They thus are equally responsible for any prejudice

resulting from the trial court’s obvious obligation to conform the

instruction to the charge in the indictment.

       Next, appellants raise two objections to evidence admitted

against them.         We review the district court’s decision concerning

the admissibility of evidence for abuse of discretion, and such

rulings are subject to harmless error review.                      United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997).                      All four appellants

allege that the trial court violated Federal Rule of Evidence 403

when    it     admitted     gruesome       and    prejudicially           inflammatory

photographs and video of Fisher, the victim of the kidnapping and


                                          -6-
murder.2    Joseph alleges that the court’s admission, over his

objection, of evidence that Joseph had participated in robbing a

restaurant violated Rule 404(b).         J.A. 572-73.    In light of the

substantial and entirely uncontradicted evidence that defendants

committed the crimes with which they were charged, any error by the

district court in admitting these types of evidence was harmless.3

     All appellants also allege that the district court erred by

admitting   evidence   from   expert     witnesses   about    the   “general

practice of drug trafficking” and the presence of cocaine on money

seized from Joseph’s brother after defendants were given late

notice or no notice of the proposed testimony.               J.A. 835, 865.

While the district court concluded that the late notice constituted

a discovery violation, rather than excluding the evidence, it

merely limited the scope of the testimony of one of the expert

witnesses as a remedy.        J.A. 865.     Even if the district court



     2
      Richardson also alleges that the district court should have
granted her motion for the severance of her trial from that of the
other defendants because of her lack of connection to Fisher’s
murder.   However, requests for separate trials are within the
discretion of the district court, and “a denial of a requested
severance will be reversed on appeal only where denial precluded a
fair trial.” United States v. Sellers, 658 F.2d 230, 231 (4th Cir.
1981).   Richardson fails to show that the joint trial was so
prejudicial as to preclude a fair trial.
     3
      Because appellants only objected to some of the photographs
at trial, the district court’s admission of the remaining
photographs is subject to review only for plain error. See United
States v. Vogt, 910 F.2d 1184, 1192 (4th Cir. 1990). Because their
admission, if error, was harmless, it is necessarily not plain
error affecting substantial rights.

                                   -7-
correctly    concluded     that   a     discovery      violation         occurred,      the

appellants cannot show that they suffered any prejudice as a result

of that violation, and thus are not entitled to relief.                        See United

States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997)

(holding     that   the    defendant      “must      demonstrate          prejudice      to

substantial rights to justify reversal for violations of discovery

rules.”).

       Finally,     Dinnall     contests       the    court’s          conclusion      that

sufficient     evidence       existed    to     support       a    finding      that     he

participated in the actual abduction of Fisher, and thus argues

that the evidence was insufficient to convict him of conspiracy to

commit kidnapping.        Joseph argues that the court erred in denying

the judgment of acquittal on the grounds that insufficient evidence

existed to prove that he had conspired to possess and distribute

more than 50 grams of cocaine base or that he had traveled in

interstate commerce to commit a drug trafficking crime.                             We must

consider whether, taking the evidence in the light most favorable

to   the   Government,     substantial         evidence   supports            the    jury’s

verdict.    Glasser v. United States, 315 U.S. 60, 80 (1942); United

States v. Wills, 346 F.3d 476, 495 (4th Cir. 2003).                          Accepting as

true   Pender’s     testimony     summarized         above,       it    is    clear    that

substantial evidence supported the jury’s conclusions.




                                         -8-
                                  III.

     The appellants also challenge their sentences in light of the

Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005).     Because these challenges were not raised to the district

court, we review them for plain error.      United States v. Hughes,

No. 03-4172, 2005 U.S. App. LEXIS 4331, at *12 (4th Cir. Mar. 16,

2005).

     The presentence report utilized section 2A4.1, the guideline

for a kidnapping charge, to set Staine’s and Dinnall’s Base Offense

Level which, absent any fact findings beyond the mere fact of a

kidnapping, would have been 32. U.S.S.G. § 2A4.1(a). However, the

trial court concluded that the murder of Fisher was a reasonably

foreseeable consequence of the kidnapping conspiracy, and increased

Staine’s and Dinnall’s base offense level to 43 pursuant to section

2A4.1(c).    J.A. 1138, 1187.   This application of the murder cross-

reference increased the guidelines range of 151-188 months for

Staine and Dinnall to a mandatory sentence of life imprisonment.

J.A. 1138, 1187.4    The facts supporting the murder cross-reference




     4
      The guidelines range for Staine and Dinnall was based on
their placement in criminal history category III. Although the PSR
classified Dinnall in criminal history category IV, the judge noted
at the sentencing hearing that he would “tentatively find” that
Dinnall’s criminal history category was III. J.A. 1187. Because
an offense level of 43 mandates life imprisonment regardless of
criminal history, Dinnall’s criminal history was not relevant to
his sentence.

                                  -9-
were       neither   expressly   nor   necessarily   found   by   the   jury.5

Similarly, the court made findings of drug quantity that increased

the Base Offense Levels, and thus the guidelines ranges, for

Richardson and Joseph, from 32 to 38.           The court also concluded

that Richardson supplied firearms to the conspiracy, increasing her

Base Offense Level to 40.         Based on the facts found by the jury,

Richardson and Joseph could each have been sentenced to 135-168

months for the drug conspiracy conviction.            Their sentences were

increased outside this range based on facts found only by the

court.

       Because the appellants received higher sentences than would

have been permissible based on the jury’s findings, we agree with

both parties that United States v. Hughes requires that we vacate

and remand appellants’ sentences for resentencing under an advisory

guidelines system.6       See Hughes, 2005 U.S. App. LEXIS 4331, at *13-

17, *37-38 (finding that Hughes had satisfied all three prongs of

the plain error test set forth in United States v. Olano, 507 U.S.

725, 732 (1993), when he was sentenced to a sentence substantially



       5
      Although the application of the murder cross-reference
rendered other sentencing enhancements moot, the court also
concluded, not based simply on the facts necessarily found by the
jury, that Staine and Dinnall should receive a three-level
enhancement because they played an aggravated role in the offense.
       6
      Because we vacate the sentences under Hughes, it is
unnecessary for us to reach Dinnall’s alternative argument that the
court clearly erred in its factual conclusion that the murder was
a reasonably foreseeable consequence of the conspiracy.

                                       -10-
longer than that permitted based purely on the facts found by a

jury,   and   that   the   court    should   exercise   its   discretion   to

recognize the error).



                                   CONCLUSION

     For the reasons stated herein, we affirm the convictions of

each of the four appellants.          Their sentences are hereby vacated

and the case remanded for resentencing consistent with United

States v. Booker.

                                                        AFFIRMED IN PART;
                                             VACATED AND REMANDED IN PART




                                      -11-
