                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4839



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


GREGORY ANTONIO BATES FELTON, a/k/a Capone,

                                              Defendant - Appellant.



                            No. 05-4216



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TADASHI DEMETRIUS KEYES,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-03-8)


Submitted:   December 14, 2005            Decided:   February 7, 2006
Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.


No. 04-4839 affirmed; No. 05-4216 affirmed in part, vacated in
part, and remanded by unpublished per curiam opinion.


Robert A. Ratliff, SHIELDS, RATLIFF, GREEN & KERN, Mobile, Alabama;
Darryl A. Parker, Richmond, Virginia, for Appellants.       John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia; Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

           Gregory Antonio Bates Felton and Tadashi Demetrius Keyes

were convicted of conspiracy to possess with intent to distribute

50 or more grams of cocaine base, in violation of 18 U.S.C. § 841

(a)(1)   (2000)      (Count    One)    and    possession     of     a    firearm    in

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

§ 924(c)(1) (2000) (Count Four).                 Felton was also separately

convicted of possession of a firearm in furtherance of a drug

trafficking crime for which the death of a person was caused, which

killing was a murder as defined in 18 U.S.C. § 1111 (2000) (Count

Five).   Felton was sentenced to two life terms, one on each of

Counts   One    and    Five,    and    a     consecutive    120-month       term    of

imprisonment      on   Count    Four.         Keyes   was   sentenced       to     life

imprisonment on Count One and a consecutive 120-month term of

imprisonment    on     Count   Four.       Felton     and   Keyes       appeal   their

convictions and sentences.



           I.      Challenges to Convictions

           Felton first argues that his right to a jury trial was

denied, based on United States v. Booker, 125 S. Ct. 738 (2005),

because his conviction was based on a constitutionally defective

indictment.     We find there was no violation of Felton’s right to a

jury trial because the indictment charged Felton with the use of a

firearm during and in relation to a drug trafficking offense in the


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course of which a killing that would constitute murder occurred,

the district court instructed the jury on each of the elements of

murder, and the jury found Felton guilty beyond a reasonable doubt.

We therefore affirm Felton’s convictions.

           Keyes     argues   on   appeal    that   there   was   insufficient

evidence to support his convictions, because the evidence did not

connect him to the drug trafficking organization.             In reviewing a

claim of insufficient evidence, the verdict must be sustained if

there is substantial evidence, taking the view most favorable to

the government, to support it.        Glasser v. United States, 315 U.S.

60, 80 (1942).       Substantial evidence is defined as “that evidence

which ‘a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.’”       United States v. Newsome, 322 F.3d 328, 333

(4th Cir. 2003) (quoting United States v. Burgos, 94 F.3d 849,

862-63 (4th Cir. 1996) (en banc)).           The court reviews both direct

and circumstantial evidence and permits “the government the benefit

of all reasonable inferences from the facts proven to those sought

to be established.” United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982). In resolving issues of substantial evidence, this

court   does   not    weigh   evidence      or   reassess   the   factfinder’s

assessment of witness credibility.           United States v. Saunders, 886

F.2d 56, 60 (4th Cir. 1989); United States v. Arrington, 719 F.2d

701, 704 (4th Cir. 1983); see also United States v. Sun, 278 F.3d


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302, 313 (4th Cir. 2002).        Moreover, the uncorroborated testimony

of one witness or an accomplice may be sufficient to sustain a

conviction. United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir.

1997).

            To prove conspiracy under 21 U.S.C. § 841 (2000), the

government must prove an agreement to violate a federal drug law,

the defendant’s knowledge of the conspiracy, and the defendant’s

willing participation.        United States v. Strickland, 245 F.3d 368,

384-85 (4th Cir. 2001). A defendant may be convicted of conspiracy

without knowing all the conspiracy’s details, as long as he joins

the conspiracy understanding its unlawful nature and willfully

joins in the plan on at least one occasion.                United States v.

Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).                 Once the

existence of a conspiracy is established, only a slight link

between a defendant and the conspiracy is needed to support a

conviction. United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.

1992).    The knowledge and participation elements of conspiracy may

be shown by circumstantial evidence.        Strickland, 245 F.3d at 385.

            Viewing the evidence in the light most favorable to the

government, we conclude there was sufficient evidence from which a

jury     could   reasonably    infer    there   was   a    drug   trafficking

conspiracy, Keyes was a willing participant in that conspiracy, and

Keyes    possessed   a   firearm   in   furtherance   of    the   conspiracy.

Accordingly, we affirm Keyes’ convictions.


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               II.    Challenges to Sentences

               Keyes argues that the district court’s application of the

murder cross-reference, pursuant to the U.S. Sentencing Guidelines

Manual (“USSG”) § 2D1.1(d)(1) (2003), and the enhancement for

obstruction of justice violate his Sixth Amendment rights contrary

to    Booker    because         they   were    based    on   judicial     fact-finding.

Because Keyes objected below based on Blakely v. Washington, 542

U.S. 296 (2004), this claim is reviewed under harmless error

analysis.       United States v. Mackins, 315 F.3d 399, 405 (4th Cir.

2003). The government bears the burden in harmless error review of

showing beyond a reasonable doubt that the error did not affect the

defendant’s substantial rights. Id. at 405. Affecting substantial

rights    means       that       the   error     affected      the   outcome     of   the

proceedings.         United States v. Stokes, 261 F.3d 496, 499 (4th Cir.

2001).

       In Booker, the Supreme Court held that Blakely applied to the

federal sentencing guidelines and that the mandatory manner in

which the federal sentencing guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment. 125 S.

Ct. at 746, 750.          We find the district court erred in applying the

murder cross-reference to Keyes’ sentence, because the murder was

not   charged        in   the    indictment      or    found   by    a   jury   beyond   a

reasonable doubt as to Keyes. We further find that the application


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of the enhancement for obstruction of justice was in error because

it was based on judicial fact-finding.                       Moreover, we find the

errors affected Keyes’ substantial rights because the sentence

imposed was longer than the term of imprisonment that the district

court could have imposed based solely on the jury’s findings.                            See

United States v. Hughes, 401 F.3d 540, 548 (4th Cir. 2005).                                We

therefore vacate Keyes’ sentence and remand for resentencing.

            Although       the    sentencing         guidelines          are    no   longer

mandatory, Booker makes clear that a sentencing court must still

“consult    [the]       Guidelines     and     take    them       into     account      when

sentencing.”       125 S. Ct. at 767.           On remand, the district court

should first determine the appropriate sentencing range under the

guidelines,      making    all    factual     findings       appropriate          for   that

determination.          See Hughes, 401 F.3d at 546.                The court should

consider    this    sentencing        range    along       with    the    other      factors

described   in     18    U.S.C.   §    3553(a)       (2000),      and    then     impose    a

sentence.     Id.        If that sentence falls outside the guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000).                   Id.    The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

            Felton similarly challenges the application of the murder

cross-reference,         pursuant      to     USSG     §    2D1.1(d)(1),          and    the

enhancement for obstruction of justice, arguing they violate Booker


                                        - 7 -
because they were based on judicial fact-finding.             We find that

because the jury found the elements of murder beyond a reasonable

doubt as to Felton, there was no Sixth Amendment error in the

application of the murder cross-reference to Felton’s sentence. We

find   the   enhancement   for   obstruction   of   justice   to   Felton’s

sentence was in error because the enhancement was based on judicial

fact-finding.    However, because the application of the enhancement

to Felton’s sentence would not have lessened his guideline range of

life imprisonment on Counts One and Five, or his mandatory minimum

sentence of 10 years on Count Four, the error did not affect his

substantial rights and was thus harmless.       See Hughes,    401 F.3d at

548.

             Finally, Felton argues that the drug amount attributed to

him was erroneous because the amount was based on unreliable

evidence and the district court erred in attributing the full 1.5

kilograms to Felton without determining whether the drug amount was

reasonably foreseeable and within Felton’s specific agreement in

the offense.      We find that because the murder cross-reference

applies without regard to drug quantity, the amount of drugs

attributed to Felton had no effect on his total offense level and

resultant sentence.     Accordingly, we affirm Felton’s sentence.

             In sum, we affirm Felton’s convictions and sentences,

affirm Keyes’ convictions, and vacate and remand Keyes’ sentence




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for resentencing consistent with Booker.*    We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                               No. 04-4839 AFFIRMED
                                      No. 05-4216 AFFIRMED IN PART,
                                      VACATED IN PART, AND REMANDED




     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Keyes’ sentencing.

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