                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 14-4853


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

MARCUS DORRELL BYRD,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:12-cr-00312-BR-1)


Argued: May 10, 2017                                              Decided: June 26, 2017


Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Traxler wrote the opinion, in which Judge
Floyd and Judge Harris joined. Judge Harris wrote a separate concurring opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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TRAXLER, Circuit Judge:

      Marcus Dorrell Byrd was convicted of multiple drug- and firearm-related charges.

Because he had prior drug convictions and the government provided the required notice,

Byrd was sentenced to a statutorily mandated sentence of life imprisonment. See 21

U.S.C. §§ 841(b)(1)(A), 851(a).      Byrd appeals, raising various challenges to his

convictions and sentence. Finding no reversible error, we affirm.

                                           I.

      Robin Applewhite was arrested on drug charges while he was serving a term of

federal supervised release. In an attempt to reduce his sentence, Applewhite began

working as a confidential informant for the police in Fayetteville, North Carolina.

Applewhite identified Byrd as a large-scale cocaine distributor, and he conducted two

controlled purchases of cocaine from Byrd under police supervision. The controlled buys

took place on June 1 and 8, 2011; Applewhite purchased two ounces of cocaine on both

occasions. Police surveillance teams observed and photographed the transactions from a

distance, and Applewhite provided audio of the transactions through a hidden recording

device the police had given him.

      On June 24, 2011, Fayetteville police conducted a warrant-based search of the

apartment where Byrd lived with his girlfriend. In the master bedroom, police discovered

more than $15,000 in cash packaged in $1,000 bundles, a digital scale, and a cocaine

press. A loaded, semi-automatic handgun was found under Byrd’s side of the bed. In the

kitchen, police found a cabinet containing several boxes of plastic baggies, baking

powder, baking soda, and razor blades, all of which are used in processing cocaine for

                                            3
sale. The digital scale, cocaine press, and razor blade all tested positive for cocaine

residue, but police did not recover any cocaine from the apartment.

       Byrd was charged with conspiracy to distribute and possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; possession

of a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A);

two counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

       The government’s evidence at trial included testimony from the police officers

involved with Applewhite’s controlled buys, as well as testimony from Applewhite

himself and from Marcus Moore, who supplied cocaine to Byrd until a few months

before the controlled buys took place. The government also introduced statements Byrd

made to the police after he was arrested, photographs and video recordings of the

observable portions of the buys, and audio recordings of the actual transactions between

Applewhite and Byrd. At the time of trial, the parties believed that Applewhite was

facing multiple drug-related charges in state court, as well as state charges for human

trafficking and first-degree kidnapping. 1   The district court permitted Byrd to elicit

testimony that Applewhite was facing felony charges, but the court granted the




       1
         After the briefing was complete in this case, the government discovered that
many of the state charges believed to be pending against Applewhite at the time of
Byrd’s trial had in fact been dismissed before the trial. Among the charges dismissed
were the human-trafficking and kidnapping charges.


                                             4
government’s motion in limine and precluded Byrd from inquiring into the specifics of

the charges.

       The jury convicted Byrd of all counts. At sentencing, the district court determined

that Byrd qualified as an armed career criminal because his prior conviction for

instigating a prison riot counted as a “violent felony” under the residual clause of the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA designation

ultimately did not affect Byrd’s sentence, however, as the conspiracy conviction carried a

mandatory sentence of life imprisonment because Byrd had two prior convictions for

“felony drug offenses.” 21 U.S.C. § 841(a)(1); see 21 U.S.C. § 846 (“Any person who

attempts or conspires to commit any offense defined in this subchapter shall be subject to

the same penalties as those prescribed for the offense, the commission of which was the

object of the attempt or conspiracy.”). The district court therefore sentenced Byrd to life

imprisonment on the conspiracy count, a consecutive 25 years on the § 924(c) count, and

concurrent sentences on the other counts. This appeal followed.

                                            II.

      Byrd first challenges the sufficiency of the evidence supporting his § 924(c)

conviction.    “On an appeal challenging the sufficiency of evidence, we assess the

evidence in the light most favorable to the government, and the jury’s verdict must stand

unless we determine that no rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v. Royal, 731 F.3d 333, 337 (4th

Cir. 2013).    “In evaluating the sufficiency of the evidence, we do not review the

credibility of the witnesses and assume that the jury resolved all contradictions in the

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testimony in favor of the government.” United States v. Foster, 507 F.3d 233, 245 (4th

Cir. 2007).

       The indictment alleged that on June 24, 2011 – the day the apartment was

searched and the gun seized – Byrd possessed a gun in furtherance of the conspiracy

alleged in Count One of the indictment. Byrd contends that the government failed to

present sufficient evidence to connect his possession of the gun to the Count One

conspiracy. Byrd’s argument is premised on two pieces of evidence: After the search,

Byrd told police that he had just bought the gun the day before; and Marcus Moore, one

of Byrd’s suppliers, testified that he quit providing drugs to Byrd in March 2011. Byrd

thus argues that the Count One conspiracy ended in March 2011 and that he could not

have possessed the gun in furtherance of that conspiracy because he didn’t even own the

gun until after the conspiracy ended. We disagree.

       The Count One conspiracy charge was not limited to Byrd’s involvement with

Moore. The indictment does not name Moore, but instead alleges the existence of a

conspiracy that continued at least until June 24, 2011, and involved Byrd “together with

others both known and unknown to the Grand Jury.”           J.A. 13.   The government’s

evidence was sufficient to permit a reasonable jury to conclude that Byrd was part of a

conspiracy with unknown individuals until the date of his arrest.

       Moore testified that he provided Byrd with two kilograms of cocaine per month

until March 2011 and that Byrd began purchasing cocaine from “[s]omebody in

Lumberton, North Carolina” thereafter. J.A. 306. And after he was arrested, Byrd

admitted to Detective Thompkins that he had been selling half an ounce of cocaine per

                                            6
week for the previous nine months, and he identified other dealers in his supply chain.

This evidence, along with Byrd’s continued ability to provide cocaine even after the end

of his relationship with Moore, shows that he had another supplier, which in turn

establishes Byrd’s continued participation in a drug-distribution conspiracy at the time of

his arrest. Given the presence in the apartment of bundles of cash and paraphernalia of

the commercial drug trade and Byrd’s own statement to the police that he had the gun for

protection, a reasonable jury could easily conclude beyond a reasonable doubt that Byrd

possessed the gun in furtherance of the Count One drug-distribution conspiracy. See

United States v. Moore, 769 F.3d 264, 270 (4th Cir. 2014) (“Some of the ways a firearm

might further, advance, or help forward a drug trafficking crime[, as required by §

924(c)], include defending the dealer’s drugs, drug profits, or his person.” (internal

quotation marks and alterations omitted)). We therefore reject Byrd’s challenge to his §

924(c) conviction.

                                           III.

       Byrd contends that the district court erred by preventing Byrd from eliciting

testimony about the nature of the state charges pending against Applewhite. 2 Byrd

argues that if the jury had known about the nature and seriousness of the offenses, it

might have found that Applewhite “lacked basic credibility” or concluded that

Applewhite was tailoring his testimony “in a manner pleasing to the government.” Brief

       2
        As noted, many of the charges had already been dismissed by the time of Byrd’s
trial. Because it does not affect our analysis, we will consider this issue under the facts
as understood by the parties and the district court at the time of trial.


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of Appellant at 25. In Byrd’s view, the jury might have found that the government’s

willingness to work with a human trafficker called into question “the credibility of the

entire prosecution.” Id.

       “We review for abuse of discretion a trial court’s limitations on a defendant's

cross-examination of a prosecution witness.” United States v. Smith, 451 F.3d 209, 220

(4th Cir. 2006). “It is elementary that trial judges possess wide latitude to impose

reasonable limits on cross-examination, based on concerns including harassment,

prejudice, confusion of the issues, repetition, or marginal relevance.” United States v.

Turner, 198 F.3d 425, 429 (4th Cir. 1999). “However, prohibiting a criminal defendant

from cross-examining a witness on relevant evidence of bias and motive may violate the

Confrontation Clause, if the jury is precluded from hearing evidence from which it could

appropriately draw adverse inferences on the witness’s credibility.” Id.

       We will assume for purposes of this appeal that the district court committed

constitutional error by limiting Byrd’s cross-examination of Applewhite. Nonetheless,

we are satisfied that the error in this case was harmless.    See Smith, 451 F.3d at 222

(concluding that improper restriction of cross-examination was harmless).

       When determining whether the improper denial of a defendant’s opportunity to

impeach a witness requires a new trial, “[t]he correct inquiry is whether, assuming that

the damaging potential of the cross-examination were fully realized, a reviewing court

might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware

v. Van Arsdall, 475 U.S. 673, 684 (1986).



                                            8
       Whether such an error is harmless in a particular case depends upon a host
       of factors, all readily accessible to reviewing courts. These factors include
       the importance of the witness’ testimony in the prosecution’s case, whether
       the testimony was cumulative, the presence or absence of evidence
       corroborating or contradicting the testimony of the witness on material
       points, the extent of cross-examination otherwise permitted, and, of course,
       the overall strength of the prosecution’s case.

Id.; see Smith, 451 F.3d at 222. Even if the jury had been informed that Applewhite was

facing charges of human trafficking and kidnapping, that information would not have led

a reasonable jury to reject Applewhite’s testimony.

       First, Byrd’s cross-examination of Applewhite already provided the jury with

ample reason to doubt Applewhite’s credibility. The jury knew of Applewhite’s criminal

history and that he sold cocaine while on federal supervised release after serving a five-

year sentence on a gun charge.       The jury knew that Applewhite in this case was

cooperating with law enforcement in the hopes of reducing his sentence, and the jury

knew that the police had paid Applewhite thousands of dollars for his services as a

confidential informant in other cases. This evidence alone provided an ample basis for

the jury to conclude that Applewhite might be biased or inclined to tailor his testimony to

favor the government. To the extent that knowledge of the specific nature of the pending

charges would have been relevant, it was cumulative to an already-strong body of

evidence questioning Applewhite’s bias and his interest in tailoring his testimony.

       Second, Applewhite’s testimony was corroborated in all material respects by

compelling independent evidence.       Detective Thompkins testified that Applewhite

contacted Byrd, in Thompkins’ presence, to set up each controlled buy; that police

searched Applewhite before each buy and provided him with money and a concealable

                                            9
audio-recording device; that the recording device transmitted the conversations between

Applewhite and Byrd to the police as they occurred; and that Applewhite turned over the

cocaine and recording device when the police approached him after the transactions were

complete.    The jury saw still photographs and video recordings of Applewhite

approaching the meeting points, and it heard the audio recordings of the conversations

between Applewhite and Byrd.        Applewhite testified to these very points, and the

evidence described above corroborated his testimony in all material respects.

       Under these circumstances, we believe any error in limiting the cross-examination

of Applewhite was harmless beyond a reasonable doubt. The government’s evidence was

very strong, and the jury returned a guilty verdict despite already having ample reason to

question Applewhite’s credibility. We see no reasonable basis to conclude that a jury

would have given any less weight to Applewhite’s testimony, which was corroborated by

other compelling evidence, if it had been given full information about the nature of

Applewhite’s charges.    Because we conclude that the district court’s error “did not

contribute to the verdict obtained,” United States v. Williams, 632 F.3d 129, 133 (4th Cir.

2011) (internal quotation marks omitted), we affirm Byrd’s convictions.

                                           IV.

       Finally, Byrd challenges his classification as an armed career criminal. Because

Byrd raises this issue for the first time on appeal, we review the district court’s

determination for plain error only. United States v. Aplicano-Oyuela, 792 F.3d 416,

422 (4th Cir. 2015). “To satisfy plain error review, the defendant must establish that: (1)



                                            10
there is a sentencing error; (2) the error is plain; and (3) the error affects his substantial

rights.” Id.

       Byrd argues, and the Government concedes, that under Johnson v. United States,

135 S. Ct. 2551 (2015), his prior conviction arising from his role in a prison riot no

longer qualifies as a violent felony under the ACCA. However, as previously noted,

Byrd was subject to a mandatory sentence of life imprisonment pursuant to 21 U.S.C. §

841(b)(1)(A). The mandatory minimum sentence under the ACCA, which was imposed

to run concurrently to his life sentence for the drug conspiracy, thus did not alter Byrd’s

actual sentence. Because the error did not extend Byrd’s sentence, the error does not

affect Byrd’s substantial rights. See, e.g., United States v. McDonald, 850 F.3d 640, 645

(4th Cir. 2017) (under plain-error review, declining to vacate presumed-erroneous ACCA

designation because the district court made clear that it would have imposed the same

sentence even without the ACCA designation); United States v. Ellis, 326 F.3d 593, 600

(4th Cir. 2003) (under plain-error review, declining to correct 30-year sentence that

exceeded the applicable statutory maximum because, “in light of Ellis’ life sentence on

Count One and concurrent 30–year term on Count Two, the error did not affect his

substantial rights”). Byrd’s arguments about the effect an erroneous ACCA designation

may have on his ability to benefit from future executive clemency or statutory

amendments have no support in the record and are far too speculative to carry his burden

of showing that his substantial rights have been affected.




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                                           V.

       Accordingly, for the foregoing reasons, we hereby affirm Byrd’s convictions and

sentence. 3

                                                                            AFFIRMED




       3
         Byrd acknowledges that his argument that the district court erred by basing
Byrd’s sentence on his prior convictions is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998). “Almendarez-Torres remains
good law, and we may not disregard it unless and until the Supreme Court holds to the
contrary.” United States v. McDowell, 745 F.3d 115, 124 (4th Cir. 2014), cert. denied,
135 S. Ct. 942 (2015).


                                           12
PAMELA HARRIS, Circuit Judge, concurring:

       I concur in the court’s opinion, and write separately only to note my dismay that

we find ourselves unable to correct the judgment under which Byrd will serve a life

sentence. All agree that the judgment, entered before the Supreme Court’s decision in

Johnson v. United States, 135 S. Ct. 2551 (2015), is now manifestly contrary to law,

improperly designating Byrd as a career offender under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), and imposing a corresponding 15-year minimum

sentence.   But because Byrd did not enter a Johnson objection at his pre-Johnson

sentencing, we are constrained by the plain error standard of review and our precedent to

leave that error in place.

       To put a person in prison for life is a grave and serious undertaking. See Graham

v. Florida, 560 U.S. 48, 74 (2010) (describing life imprisonment as an “irrevocable

judgment about [the defendant’s] value and place in society”). It should not be too much

to ask of the criminal justice system that we do it correctly. It would be a simple enough

matter for the district court to amend Byrd’s judgment so that it conforms to law, and the

government has offered no compelling justification for opposing Byrd’s efforts to correct

his sentence. I regret that we have been left with no choice but to affirm this manifestly

erroneous judgment.




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