                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4100


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DARRELL T. WASHINGTON, a/k/a D-Black,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-02064-JFA-10)


Argued:   March 18, 2014                      Decided:   June 2, 2014


Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant.     Jimmie Ewing, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, William K.
Witherspoon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Darrell    Washington           was    convicted            of   various    drug-related

charges,    including         conspiracy           to    distribute        crack       and    powder

cocaine,    and    use       of    a    firearm          in    furtherance         of    a    drug-

trafficking offense.              The district court sentenced Washington to

a   total   of    300    months’        imprisonment,              comprising      a    240-month

mandatory    minimum         sentence        for       the    drug-conspiracy          conviction

and a mandatory consecutive 60-month sentence on the § 924(c)

using-a-gun-in-furtherance                   conviction.                Washington       appeals,

challenging      his    sentence         but       not       his    conviction.          For      the

reasons set forth below,               we affirm.

                                                I.

       Washington was one of ten defendants named in a 47-count

indictment.       Washington was charged with one count of conspiring

to distribute five kilos or more of cocaine powder and 280 grams

or more of crack cocaine, see 21 U.S.C. §§ 841(b)(1)(A), 846;

two counts of possession with intent to distribute 28 grams or

more of crack cocaine, see 21 U.S.C. § 841(b)(1)(B); two counts

of being a felon in possession of a firearm, see 18 U.S.C. §

922(g)(1); one count of using a firearm in furtherance of a

drug-trafficking offense, see 18 U.S.C. § 924(c)(1), and three

counts of using a communications facility to facilitate a felony

drug    offense,       see    21       U.S.C.      §     843(b).          According          to   the

allegations of the indictment, the conspiracy began around the

                                                   2
summer of 2000 and continued through February 2012, the date of

the indictment; the conduct underlying the various substantive

counts asserted against Washington occurred on specified dates

in 2009 and 2011.

      While    most       of   the   defendants         named    in    the   indictment

pleaded guilty, Washington proceeded to trial.                           In the first

phase of a bifurcated proceeding, the jury convicted Washington

on the conspiracy charge and on six of the eight substantive

counts. 1      In the second phase, the jury determined the drug

quantities     involved        and   found   the       conspiracy     responsible     for

five kilos or more of cocaine and 280 grams or more of crack

cocaine.

      A conspiracy involving the drug quantities found by the

jury normally carries a mandatory minimum sentence of 10 years.

See   21    U.S.C.    §    841(b)(1)(A)(ii)        &    (iii).        However,   if   the

defendant violates § 841 “after a prior conviction for a felony

drug offense has become final,” id. (emphasis added), and the

government provides the defendant with the required notice, see

21 U.S.C. § 851(a), the mandatory minimum sentence increases to

20    years,    see       21   U.S.C.   §    841(b)(1)(A).             Washington     was

convicted in 2004 in South Carolina state court of possession

      1
       The jury acquitted Washington of one possession-with-
intent-to-distribute count and a related § 922(g) count
involving conduct occurring on May 6, 2009.



                                             3
with intent to distribute crack cocaine.                           The district court at

sentencing determined that that conviction triggered application

of     the    20-year      mandatory      minimum           sentence,     and      the        court

sentenced Washington to a total of 300 months’ imprisonment.

This appeal followed.

                                            II.

       Washington       challenges       the        district    court’s     determination

that    the     20-year     mandatory       minimum          sentence     required            by    §

841(b)(1)(A)         was    triggered      by       Washington’s        2004       conviction.

Relying on the Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151, 2155 (2013), which held that facts that

increase a mandatory minimum sentence must be submitted to the

jury, Washington argues that his Sixth Amendment rights were

violated      because      the   district       court,       not    the   jury,         made       the

factual       findings      about    his        prior       conviction      necessary              to

increase the mandatory minimum sentence.                       We disagree.

       In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme

Court    held    that      the   Sixth     Amendment          requires    that          any    fact

“[o]ther      than    the    fact   of     a        prior    conviction        .    .    .     that

increases       the     penalty     for     a       crime      beyond     the      prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.”             Id. at 490.           In Harris v. United States,

536 U.S. 545 (2002), the Court carved out from the Apprendi rule

facts that merely increase the mandatory minimum sentence for a

                                                4
crime, concluding that the Sixth Amendment permitted judicial

fact-finding that increases the mandatory minimum sentence.                         See

id. at 567.

     The Court reversed course in Alleyne, overruling Harris and

holding that any fact that increases the statutory mandatory

minimum    sentence     is   an     element     of   the   offense   “and    must    be

submitted    to   the   jury      and   found    beyond    a   reasonable    doubt.”

Alleyne, 133 S. Ct. at 2158.               The Alleyne Court was careful to

note,     however,    that     it    was   “not       revisit[ing]”    the    narrow

exception to the general rule for the fact of a prior conviction

recognized in Almendarez–Torres v. United States, 523 U.S. 224

(1998).     See Alleyne, 133 S. Ct. at 2160 n.1 (“In Almendarez–

Torres . . . , we recognized a narrow exception to this general

rule for the fact of a prior conviction.                   Because the parties do

not contest that decision’s vitality, we do not revisit it for

purposes of our decision today.”).                   Alleyne, therefore, did not

disturb that exception and does not require prior convictions to

be alleged in an indictment and submitted to the jury.                              See

United States v. McDowell, 745 F.3d 115, 124 (4th Cir. 2014)

(explaining that even after Alleyne, “Almendarez–Torres remains

good law, and we may not disregard it unless and until the

Supreme Court holds to the contrary”).

     As to Washington’s prior conviction, the district court was

required only to determine what crime Washington was convicted

                                           5
of and when he was convicted, facts that are inherent in the

fact of conviction itself.                  See United States v. Thompson, 421

F.3d 278, 285-86 (4th Cir. 2005).                       The district court’s fact-

finding about the 2004 conviction was thus entirely consistent

with       the    Almendarez-Torres         fact-of-prior-conviction                exception

and did not violate Washington’s Sixth Amendment rights.                                      See

United      States      v.    Smith,      451   F.3d    209,     224   (4th    Cir.      2006)

(explaining that the fact-finding required by § 851 does not

violate the Sixth Amendment). 2

       Determining           the   date    and       subject    matter    of    the      prior

conviction, of course, does not end the matter – the district

court      must    also      determine     whether      Washington       violated        §    841

after the 2004 conviction.                  See 21 U.S.C. § 841(b)(1)(A) (“If

any person commits such a violation [of § 841(a)] after a prior

conviction        for   a     felony     drug    offense       has   become    final,        such

person shall be sentenced to a term of imprisonment which may

not be less than 20 years . . . .” (emphasis added)).

       Where,      as     here,     “a    defendant       is    convicted      of    a       drug

conspiracy under 21 U.S.C. § 846, prior felony drug convictions

that fall within the conspiracy period may be used to enhance


       2
       Washington does not contend that the district court looked
outside the Shepard-approved sources when determining the date
and subject matter of Washington’s 2004 conviction. See Shepard
v. United States, 544 U.S. 13, 26 (2005).



                                                 6
the defendant’s sentence if the conspiracy continued after his

earlier convictions were final.”                    Smith, 451 F.3d at 224-25.

Determining whether the conspiracy continued on, however, does

not require the district court to make factual findings about

the prior conviction, but simply requires the district court to

determine the scope and effect of the verdict rendered by the

jury in this case.

       Even if we were to accept Washington’s argument that the

jury should have been asked if the conspiracy continued after

the date of the prior conviction, any error would be harmless

beyond a reasonable doubt.             Although the indictment alleged that

the    conspiracy      began    in    the     summer     of   2000,     there    was    no

evidence showing that Washington was involved in the conspiracy

before    2004    --     all   of    the     evidence     presented      at    trial    of

Washington’s      involvement        in     the     charged    conspiracy       involved

events occurring after the 2004 state-court conviction.                          Indeed,

Washington’s own statements to law enforcement officials, which

were   admitted     at    trial      after    the      district      court    found   that

Washington breached the terms of a proffer agreement, show that

Washington did not join the conspiracy until well after 2004.

See Supp. J.A. 205.            Because the only evidence presented to the

jury   involved     post-2004        events,      no    rational      jury    could   have

convicted   Washington         of    conspiracy        but    also    found    that    the

conspiracy ended before 2004.                Any error was therefore harmless.

                                             7
See, e.g., United States v. Brown, 202 F.3d 691, 700 (4th Cir.

2000)   (failure       to    submit   element      of    offense       to    the    jury   is

harmless   beyond       a    reasonable     doubt       “where    a    reviewing       court

concludes beyond a reasonable doubt that the omitted element was

uncontested      and    supported     by    overwhelming         evidence”         (internal

quotation marks omitted)); id. at 701 (if omitted element is

contested,      error    is    harmless     if    the    record       does   not     contain

evidence “that could rationally lead to a contrary finding with

respect    to    that       omitted   element”      (internal          quotation      marks

omitted)).

                                           III.

     Accordingly, for the foregoing reasons, we hereby affirm

Washington’s sentence.

                                                                                    AFFIRMED




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