                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4701


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

ANTHONY SELLERS,

               Defendant – Appellant.



                             No. 10-4702


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

ALCINDO ROCHELLE MATTHEWS,

               Defendant – Appellant.



                             No. 10-4917


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
SIGMUND DIAOLA JAMES, a/k/a Sig,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge.    (5:08-cr-00944-MBS-21; 5:08-cr-00944-MBS-18; 5:08-cr-
00944-MBS-1)


Argued:   September 21, 2012             Decided:   February 28, 2013


Before SHEDD, KEENAN, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.      Judge Shedd wrote a separate opinion
concurring in part and dissenting in part.


ARGUED: Beattie Balentine Ashmore, BEATTIE B. ASHMORE, PA,
Greenville, South Carolina; Jan Simpson Strifling, Columbia,
South Carolina, for Appellants.   John David Rowell, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.   ON BRIEF: Bradley M. Kirkland, BRADLEY M. KIRKLAND,
LLC, Columbia, South Carolina, for Appellant Alcindo Rochelle
Matthews. William N. Nettles, United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                   2
PER CURIAM:

            On   consolidated      appeal,      Appellants     Anthony       Sellers,

Alcindo Rochelle Matthews, and Sigmund Diaola James challenge

their convictions and subsequent sentences stemming from a drug

conspiracy.       Appellants dispute the admissibility of evidence

gained from searches of their vehicles.                 Appellants Sellers and

James     also   dispute     the    district       court’s     calculation        and

proportionality     of     their   life    sentences.        For   the       following

reasons,    we    affirm     Appellants’        convictions.       We        conclude,

however, that the district court erred in sentencing Appellant

James by applying the murder cross-reference provision in United

States    Sentencing     Guidelines   Manual       (“Guidelines”)        §    2D1.1(d)

and in treating as relevant conduct, an unrelated and uncharged

murder.     Accordingly, we vacate James’s sentence and remand for

resentencing.



                                          I.

            The events of this case stem from the surveillance of

Sellers, Matthews, James, and others by Drug Enforcement Agency

(“DEA”) agents and Orangeburg County officers regarding possible

drug-related activities in Orangeburg, South Carolina.                         On May

21, 2007, South Carolina state highway patrol officers stopped

James     for    speeding.         Upon       running   James’s     license       and

registration, Officer James LaChance was informed James had an

                                          3
outstanding      warrant        in     Orangeburg         County.           After       James    was

detained,      he    alerted         Officer       LaChance       to       money     inside      the

vehicle.       Officer        LaChance       then       returned       to    the    vehicle      and

located the money inside the console along with a rear-facing

video   camera.           Other    officers,           including       a    K-9    search      team,

subsequently continued to search James’s vehicle.

             Following         James’s       arrest       and    the       search    of   James’s

vehicle, DEA agents continued to surveil James’s whereabouts.

On   January     16,      2008,      the     DEA       secured   a     wiretap       of   James’s

telephone.          On    January      19,    2008,       the    DEA,       acting      without    a

warrant, placed an electronic Global Positioning System (“GPS”)

device on the exterior of James’s vehicle.                                 Over the course of

the next several days, DEA agents used the GPS device to track

James’s whereabouts.              On February 2, 2008, the GPS device ceased

transmitting, apparently because the device’s batteries had been

exhausted.          On March 6, 2008, agents removed the device from

James’s vehicle.              Relying partially on information gained from

the use of the GPS device, the DEA then secured another wiretap

of James’s phone on February 13, 2008, and again on March 16,

2008.   A total of seven wiretaps were issued from January 2008

to   July   2008         to   secure    evidence          of    the    scope       of    the    drug

conspiracy at issue in this case.

            On       August 14, 2008, Sellers was stopped by police for

an improper lane change while driving.                                Upon approaching the

                                                   4
vehicle,     Officers     Phillip       Furtick         and     Terry    Logan    noticed      a

strong odor of marijuana.           Officer Furtick asked Sellers and his

passenger to step out of the vehicle, at which point Sellers

admitted to there being marijuana inside the vehicle.                                 Officer

Logan also observed a partially hidden bag of what appeared to

be cocaine under the passenger seat as the passenger exited the

vehicle.       The    police    officers           then       placed    Sellers       and    his

passenger under arrest and searched the vehicle.                                 The search

uncovered marijuana, cocaine, a pistol, and roughly $3,000.

              On September 17, 2008, as a result of the evidence

gained from the search of James’s and Sellers’s vehicles, the

GPS surveillance, the wiretaps, and other information, James,

Sellers, and Matthews were indicted on drug conspiracy charges.

              Following a series of superseding indictments, in the

third superseding indictment James was ultimately indicted on

the   following      seven    charges:        (1)       conspiracy       to   possess       with

intent to distribute five kilograms or more of cocaine and 50

grams or more of cocaine base in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A), and 846; (2) use of a communication

facility to facilitate said conspiracy in violation of 21 U.S.C.

§   843(b)    and    18   U.S.C.    §    2;       (3)    possession       with    intent      to

distribute     500    grams    or   more      of        cocaine    in    violation      of    21

U.S.C.   §§    841(a)(1),      841(b)(1)(B),              and     18    U.S.C.    §    2;    (4)

possession with intent to distribute a quantity of cocaine in

                                              5
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C.

§   2;    (5)       money   laundering      in       violation    of    18   U.S.C.     §§   2,

1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1956(h); (6) possession

with intent to distribute a quantity of cocaine within 1,000

feet     of     a    school      in   violation        of   21    U.S.C.     §§     841(a)(1),

841(b)(1)(C), 860(a), and 18 U.S.C. § 2; and (7) possession with

intent to distribute 500 grams or more of cocaine within 1,000

feet     of     a    school      in   violation        of    21   U.S.C.         §§ 841(a)(1),

841(b)(1)(B), 860(a), and 18 U.S.C. § 2.

                Sellers was indicted on the following five charges:

(1)      conspiracy         to   possess     with       intent     to    distribute      five

kilograms or more of cocaine and 50 grams or more of cocaine

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

846;     (2)    possession        with     intent     to    distribute       a    quantity   of

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

and 18 U.S.C. § 2; (3) knowingly possessing and using a firearm

during, in relation to and in furtherance of a drug trafficking

crime     in    violation        of   18    U.S.C.      §   924(c)(1);       (4)     felon   in

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

924(a)(2), and 924(e); and (5) aiding and abetting in possession

with intent to distribute a quantity of cocaine within 1,000

feet     of     a    school      in   violation        of   21    U.S.C.     §§    841(a)(1),

841(b)(1)(C), 860(a), and 18 U.S.C. § 2.



                                                 6
          Matthews was indicted on the following charge: money

laundering in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i),

1956(a)(1)(B)(i), and 1956(h).

          Appellants pled not guilty and a jury trial commenced.

At trial, Appellants moved to suppress evidence gained from the

search of James’s vehicle, information gathered from the GPS

device including the wiretaps that relied in part on the GPS

data, and the search of Sellers’s vehicle.                  The district court

denied Appellants’ motions to suppress.                  The jury found James,

Sellers, and Matthews guilty on all counts.

          During     sentencing,       the    district      court        found      by   a

preponderance   of    the   evidence        that   in    2004   James         had    also

committed the murder of Vance Davis.               Relying on testimony from

witnesses confirming James murdered Davis and at the time James

was involved in the drug trade, the district court attributed

Davis’s   murder     to   James   as    conduct         relevant        to   the     drug

conspiracy under Guidelines § 1B1.3(a).                 Over James’s objection,

the district court adopted the pre-sentence investigation report

and   applied      the      cross-reference         found          in        Guidelines

§ 2D1.1(d)(1) for first degree murder, Guidelines § 2A1.1, to

increase James’s base offense level from 38 to 43.

          James and Sellers were sentenced to life in prison on

August 19, 2010 and June 17, 2010, respectively.                        Matthews was

sentenced to 24 months in prison on June 17, 2010.                           Appellants

                                        7
each filed timely appeals to this court.                  James, Sellers, and

Matthews challenge the district court’s denial of their motions

to suppress evidence gained from the searches of James’s and

Sellers’s vehicles and the information gained from the GPS and

resulting wiretaps.        James and Sellers also appeal the district

court’s imposition of their life sentences.

              Thus, this court possesses jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742.



                                         II.

              On appeal, Appellants challenge the district court’s

denial   of    their     motions    to   suppress      various    categories   of

evidence.      The following categories warrant our discussion here,

and each will be addressed in turn: (A) evidence gained from the

search of James’s vehicle; (B) evidence gained from the search

of Sellers’s vehicle; and (C) the installation and use of a GPS

device   on    James’s    vehicle    and       the   subsequent   wiretaps   that

relied on the GPS information.

              When reviewing a district court’s denial of a motion

to suppress, this court reviews legal conclusions de novo, and

any factual determinations for clear error.                  United States v.

Kelly, 592 F.3d 586, 589 (4th Cir. 2010).                   When the district

court denies a defendant’s motion to suppress, as the reviewing

court, we construe the evidence in the light most favorable to

                                          8
the government.              Id.        In the event we find a constitutional

error    on   direct         review,      “the       government        has     the       burden    of

proving    that        a    constitutional           error       was   ‘harmless          beyond    a

reasonable doubt.’”               Bauberger v. Haynes, 632 F.3d 100, 104 (4th

Cir.    2011)     (quoting         Chapman      v.    California,            386    U.S.    18,    24

(1967)).

              When         reviewing     a    district       court’s         determination         of

necessity        for        the    authorization            of     the       interception          of

communications under 18 U.S.C. § 2518, we review for an abuse of

discretion.          United States v. Wilson, 484 F.3d 267, 280 (4th

Cir. 2007).

                                                A.

                               Search of James’s Vehicle

              James argues the district court erred when it denied

his motion to suppress and found evidence gained from the search

of his vehicle admissible as the product of a valid inventory

search.

                As     a     starting        point,    to    comply          with    the    Fourth

Amendment’s          prohibition          against       unreasonable               searches       and

seizures,        generally          police      must     obtain          a     warrant      before

conducting a search.               Kelly, 592 F.3d at 589 (4th Cir. 2010).                          A

warrantless       search          may   be    valid    however,          and       the   resulting

evidence admissible, if the search is conducted “‘within one of

the     narrow       and      well-delineated          exceptions’             to    the    Fourth

                                                 9
Amendment’s warrant requirement.”                    United States v. Currence,

446    F.3d    554,   556     (4th     Cir.    2006)   (quoting      Flippo    v.    West

Virginia, 528 U.S. 11, 13 (1999)).                   One such exception includes

evidence gained from a valid inventory search.                       United States v.

Matthews,      591    F.3d    230,     234    (4th   Cir.    2009)    (citing       United

States v. Banks, 482 F.3d 733, 738–39 (4th Cir. 2007)).

              The inventory search exception is applied when police

officers impound vehicles or detain suspects.                           Matthews, 591

F.3d   at     235.     Its    justifications         are    two-fold;   an    inventory

search      serves    to     protect    the     detainee’s     property,      and     also

protects       the    police     from        accusations      of   theft      and    from

potentially dangerous items.                  Id.    Once a suspect is detained,

the inventory search exception does not give arresting officers

carte blanche to rummage through the detainee’s property looking

for possible evidence of criminal activity.                        In order for the

inventory search exception to apply, the search must have been

performed pursuant to standardized criteria -- such as a uniform

policy –- and such criteria must have been administered in good

faith.        United States v. Banks, 482 F.3d 733, 739 (4th Cir.

2007).      Importantly, “nothing prohibits the discretion of police

officers in making inventory searches so long as that discretion

is based on standard criteria and on the basis of something

other than the suspicion of criminal activity.”                         United States



                                              10
v. Ford, 986 F.2d 57, 60 (4th Cir. 1993) (citing Colorado v.

Bertine, 479 U.S. 367, 375 (1987)).

           In this case, after police stopped and arrested James,

James indicated to police that he had a significant amount of

cash inside the vehicle.             Prior to discovery of the money and

rear-facing   camera,     Officer      LaChance       conducted      the    inventory

search in compliance with state highway patrol procedures and in

good faith in response to James’s notification that he had money

in the vehicle.         At the suppression hearing, Officer LaChance

testified that the South Carolina state highway patrol inventory

search procedures require officers to start searching on one

side of a vehicle and progressively search to the other side.

In the police video submitted to the district court, Officer

LaChance clearly begins his search with the driver’s side door,

before   moving    to   the   driver’s       seat,     and   finally       the   inner

console.   Once Officer LaChance located the money in the inner

console, he stopped his search and sought confirmation from his

fellow officers that the money had been found.                     Also during this

search, Officer LaChance noted the rear-facing camera installed

on the dashboard.

           Most of James’s objections center around the events

that followed.         After initially locating the money and rear-

facing   camera,   a    K-9   crew    was    called    in    and    other    officers

repeatedly searched portions of James’s vehicle.                      James argues

                                        11
these repeated searches were not conducted pursuant to police

inventory policy and were administered merely in an attempt to

locate incriminating evidence.

      James’s reliance on these arguments is misplaced.                              This

court need not consider whether the subsequent searches were

valid     inventory       searches    simply          because    they     produced    no

evidence that was ever admitted at trial.                       The money and rear-

facing     camera   were     discovered         while    Officer     LaChance    first

initiated his inventory search pursuant to official policy.                           If,

in fact, the subsequent searches by other officers and the K-9

search were not performed according to official policy or were

performed in bad faith, it is of no moment because there is no

indication    in    the    record     that      any    testimony     related    to   the

subsequent searches or physical evidence discovered during the

subsequent searches was ever admitted at trial.                         Therefore, the

district court did not err in denying James’s motion to suppress

and     allowing    the    money     and   photographs          to   be   admitted    as

evidence    that    was     discovered       pursuant      to    a   valid   inventory

search.

                                           B.

                          Search of Sellers’s Vehicle

             Sellers argues the district court erred when it denied

his motion to suppress and found evidence gained from the search

of his vehicle admissible.             Sellers contends the search of his

                                           12
vehicle      violated       his      Fourth    Amendment         right    to       be   free    from

unreasonable searches and seizures, because the search did not

fall       within    the    parameters        of    the     exception         to    the   warrant

requirement for the search of a vehicle incident to a recent

occupant’s          arrest,     as    articulated          by    the     Supreme        Court     in

Arizona v. Gant, 556 U.S. 332 (2009).

               Sellers mistakenly relies only on select portions of

the Gant decision, and ignores other Supreme Court precedent.

In   Gant,     the     Supreme        Court    clarified         the     rules      governing      a

search of an automobile incident to arrest set forth in New York

v. Belton, 453 U.S. 454 (1981), and held that two circumstances

could authorize a warrantless search of a vehicle incident to an

arrest: (1) the possibility of access to the vehicle by a recent

occupant; or (2) the likelihood of discovering evidence related

to   the     offense       of   arrest.         556       U.S.    at    343     (“Accordingly,

we . . . hold that . . . [police may] search a vehicle incident

to     a    recent     occupant’s        arrest          only    when     the       arrestee      is

unsecured       and        within      reaching          distance       of     the      passenger

compartment at the time of the search. . . .                             [W]e also conclude

that       circumstances        unique    to       the    vehicle       context         justify    a

search incident to a lawful arrest when it is reasonable to

believe evidence relevant to the crime of arrest might be found

in the vehicle.” (footnote, citations, and internal quotation

marks omitted)).

                                               13
           Here, police officers made a valid stop of Sellers for

a traffic violation.          See United States v. Hassan El, 5 F.3d

726, 730 (4th Cir. 1993).         Upon making the stop, the officers

were permitted to direct Sellers and his passenger out of the

vehicle.   See Maryland v. Wilson, 519 U.S. 408, 415 (1997).                    If

these were the only facts of this case, then the search would

not have been permissible under Gant because Sellers and his

passenger did not have access to the interior of the vehicle,

and there would have been no basis for officers to believe there

was a likelihood of discovering evidence related to a traffic

violation inside the vehicle.

           Importantly, however, the police officers in this case

possessed more information.        Officers Furtick and Logan noticed

a strong odor of marijuana emanating from the vehicle, Sellers

admitted   to   there   being    marijuana      inside        the   vehicle,   and

Officer Logan observed a partially hidden bag of what appeared

to be cocaine under the passenger seat as the passenger exited

the vehicle.

           In   Gant,   the    Supreme    Court    noted       that   the   search

incident-to-arrest exception is not the only exception that may

justify the search of a vehicle.               556 U.S. at 346.             Indeed,

“[o]ther   established    exceptions      to      the    warrant      requirement

authorize a vehicle search under additional circumstances when

safety or evidentiary concerns demand.”                 Id.     Most germane to

                                     14
this case, “[i]f there is probable cause to believe a vehicle

contains evidence of criminal activity, United States v. Ross,

authorizes a search of any area of the vehicle in which the

evidence might be found.”           Id. at 347 (citation omitted).

               In this case, the drug-related odor, admission, and

visual      identification       clearly       gave     police      officers     probable

cause     to   believe    the     vehicle      contained      evidence     of    criminal

activity and justified the search under United States v. Ross,

456 U.S. 798 (1982), even though the criminal drug activity was

not   the      original       offense    that    justified         the   arrest.     The

district       court,   therefore,       did     not    err   in    denying     Sellers’s

motion to suppress the drugs, gun, and money gathered during the

search of Sellers’s vehicle.

                                            C.

                                        GPS Device

               James argues the district court erred by denying his

motion to suppress evidence gained from the installation of a

GPS   device      on    his    vehicle    and     its    subsequent       use.      James

contends the GPS tracking data should have been suppressed, as

well as the resulting wiretaps that relied in part on the GPS

data, as fruit of the poisonous tree. 1

      1
       Matthews also challenges the GPS data and wiretaps under
the same theories as James and their challenges will be treated
together.


                                            15
                 While James’s appeal was pending before this court,

the Supreme Court in United States v. Jones, 132 S. Ct. 945

(2012)      addressed         the   precise      issue       implicated     by   this         case:

whether the installation of a GPS tracking device to a target’s

vehicle,         and   its     subsequent        use,        without    a   valid       warrant,

constituted an unlawful search.                         In Jones, the Supreme Court

relied on the common-law trespassory test for a search –- noting

that the Katz v. United States, 389 U.S. 347 (1967) reasonable-

expectation-of-privacy              test    merely           supplemented    but        did    not

replace the trespassory test –- and found that such installation

and use violated the Fourth Amendment.                          132 S. Ct. at 952.             The

Supreme Court also noted, “[t]respass alone does not qualify [as

a   search],       but    there     must    be        conjoined    with     that    what       was

present      here:       an    attempt      to        find    something     or     to     obtain

information.”          Id. at 951 n.5.            Just as in Jones, the DEA agents

in this case attached a GPS device to a target’s vehicle and

used       the    device       to    gain     information          about     the        target’s

whereabouts, all absent a valid warrant. 2                             The search in this

case, therefore, violated James’s Fourth Amendment rights.


       2
        To be fair, the officers in Jones acted pursuant to a
warrant, albeit a warrant that had expired and was executed in
the wrong location. See 132 S. Ct. at 948. In this case, there
is no indication in the record that the DEA agents made any
attempt to secure a warrant to authorize installation of the GPS
device.



                                                 16
              In its briefing, the government does not challenge the

applicability        of   Jones     to       the    present       case.    Rather,     the

government      argues     that    because          Jones   was     decided   after    the

events of this case, the DEA’s actions should be viewed through

the good-faith standard as stated in Davis v. United States, 131

S. Ct. 2419 (2011), and therefore any evidence gained from the

GPS installation and its use should not be subjected to the

exclusionary rule.          This court need not venture along this line

of inquiry for the result is the same even if Davis does not

apply.

                                               1.

                                  GPS Tracking Data

               Even assuming Davis does not apply to this case, and

the district court erred in denying James’s motion to suppress

evidence gained from the GPS device, there is no indication that

any   data     gained     from    the    GPS       device   was    ever   introduced    at

trial.        The government has stated that no such evidence was

introduced, and Appellants do not offer anything in the record

to the contrary.          It is self-evident that there can simply be no

error    in    the    admission         of     evidence     when     evidence   is     not

admitted.      Appellants simply do not identify any direct tracking

information gained from the use of the GPS device that was ever

introduced either in testimony or by exhibit.



                                               17
                                       2.

                                    Wiretaps

            The    main    thrust     of    James’s   argument      on   appeal,

however, is not that the district court should have explicitly

suppressed direct GPS data, but rather that the district court

should    have    suppressed   any     evidence     that   was     gained    as   a

proximate result of the GPS data –- specifically the February

through   July    2008    wiretaps.        In   essence,   James    argues    that

because the wiretap applications in part contained information

derived from an illegal GPS search, any evidence gained from the

wiretaps should be suppressed as “fruit of the poisonous tree.”

James argues this result is required because without the GPS

data, the wiretap applications lacked the required showing of

probable cause and necessity.          We disagree.

            Congress has provided a statutory framework to guide

the   regulation     of    wiretapping      and    electronic      surveillance.

United States v. Apple, 915 F.2d 899, 904 (4th Cir. 1990).                        In

order to issue a wiretap, a judge must determine, on the basis

of the application for the wiretap, that probable cause exists

to believe that (1) an individual is committing, has committed,

or is about to commit an offense enumerated in 18 U.S.C. § 2516;

(2) particular communications concerning that offense will be

obtained by the wiretap; and (3) the target facilities will be

used in connection with the offense.               18 U.S.C. § 2518(3); see

                                       18
United States v. Webster, 639 F.2d 174, 177 (4th Cir. 1981).

The trial judge must also determine (4) the necessity for the

wiretap –- that is, normal investigative procedures have been

tried and have failed or reasonably appear to be unlikely to

succeed if tried or appear to be too dangerous.                                      18 U.S.C.

§ 2518(3)(c).

            The     wiretap     statute         also    provides           grounds    for    the

suppression       of     wiretap           communications.                   Id.      §§ 2515;

2518(10)(a).      For example, a defendant may seek suppression of

wiretap    communications        when       “the       order    of     authorization         or

approval    under      which    [the       communication]            was    intercepted      is

insufficient      on   its     face    .    .     .    .”      Id.    § 2518(10)(a)(ii).

Although at issue here is the availability of suppression for a

statutory violation, as a opposed to a constitutional violation,

Fourth     Amendment      principles            may     also    inform         the     court’s

analysis.     See United States v. Clerkley, 556 F.2d 709, 719 (4th

Cir. 1977) (“In other words, the violation must substantially

impinge upon Fourth Amendment values sought to be protected by

Congress    in    restricting         and       rendering       uniform        the     use   of

wiretaps.”); see also United States v. Baranek, 903 F.2d 1068,

1072 (6th Cir. 1990) (noting that although the wiretap statute

may provide greater protection than the Fourth Amendment, Fourth

Amendment evidence suppression doctrines are still relevant).



                                             19
               In         this        case,      setting        aside        the     allegedly

impermissible             GPS        information       contained        in     the    wiretap

application,          the        surviving       information          contained       in   the

application remained sufficient to support a finding of probable

cause and necessity required to issue the wiretap.                                 See United

States v. Gillenwaters, 890 F.2d 679, 681–82 (4th Cir. 1989)

(recognizing that courts have set aside suspect material in an

affidavit      for        a    search    warrant       and     then    evaluated      probable

cause, even when the suspect information was obtained through an

illegal search).               Like the probable cause standard for a search

warrant, the probable cause standard necessary to comply with 18

U.S.C. § 2518(3) requires not absolute certainty, but rather a

“fair probability” that evidence of the subject offense will be

uncovered      given          the     totality    of    the     circumstances.          United

States    v.    Depew,          932    F.2d   324,     327    (4th    Cir.    1991)    (citing

United States v. Alfano, 838 F.2d 158,                         161–62 (6th Cir. 1988)).

Similarly, the showing of “necessity” for the wiretap is not

prodigious          and       “the    Government       ‘need    only     present      specific

factual     information               sufficient       to     establish       that    it   has

encountered difficulties in penetrating the criminal enterprise

or   in   gathering              evidence     [such         that]     wiretapping     becomes

reasonable.’”             United States v. Wilson, 484 F.3d 267, 281 (4th

Cir. 2007) (quoting United States v. Smith, 31 F.3d 1294, 1298

(4th Cir. 1994)).

                                                 20
             Excising the allegedly impermissible GPS information

from the wiretap applications in this case, it is clear the

wiretap applications satisfy the probable cause and necessity

standards.     For example, the affidavits set forth the array of

investigatory techniques DEA officers employed to shed light on

the drug conspiracy.           The techniques employed by DEA officers

included extensive stationary and mobile physical surveillance,

interviews, telephone pen registers, telephone toll records, and

the analysis of public records.              The affidavits also describe

the   difficulties     faced    by    officers     in    this     case,   including:

performing     discreet      mobile    and   stationary         surveillance    and

collecting garbage in the sparsely populated rural environment

of    the   targets;   electronic      counter-surveillance          measures   and

“look-outs” employed by the targets; evasive measures taken by

targets in response to perceived surveillance; and the inability

to insert undercover agents in, or recruit confidential sources

from, the target’s organization.             This showing was sufficient.

Although the district court abused its discretion in relying on

the    additional      GPS   information      in        issuing     the   wiretaps,

inclusion of this information was harmless beyond a reasonable

doubt and a good faith inquiry under Davis is not required. See

Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011).

       Therefore, we affirm the convictions of Appellants James,

Sellers, and Matthews.

                                        21
                                       III.

             Appellants      James     and    Sellers   also     challenge    the

district court’s imposition of a life sentence.                     James argues

the district court erred when it found by a preponderance of the

evidence that he murdered Vance Davis and attributed the murder

at sentencing, as “relevant conduct” to the drug conspiracy in

this   case.         James   and   Sellers    also   both   argue    their    life

sentences are not proportional to their crimes and therefore

violate the Eighth Amendment’s prohibition on cruel and unusual

punishment.

            In reviewing a sentence imposed by the district court,

we review for both procedural and substantive reasonableness.

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                       We

review unpreserved challenges of procedural sentencing error for

plain error.         Id. at 576–77.     We review preserved challenges of

procedural     sentencing      error   for    an   abuse    of   discretion   and

reverse unless we conclude that the error was harmless.                   Id. at

576.     If the sentence is procedurally reasonable, we then review

the underlying substantive reasonableness of the sentence under

an abuse of discretion standard.              Id. at 575.        If we find the

sentence to be procedurally unreasonable, we are foreclosed from

reviewing      the    underlying     substantive     reasonableness      of   the

sentence.      United States v. Horton, 693 F.3d 463, 472 (4th Cir.

2012).

                                        22
               In    reviewing           whether       a     sentence       is        within        the

constitutional        limits        of     the     Eighth         Amendment’s         prohibition

against “cruel and unusual punishments” an appellate court asks

whether    the      imposed        sentence       is       proportionate         to    the     crime

committed.          Solem     v.    Helm,        463    U.S.      277,    290     (1983).           To

determine proportionality, we consider “(1) the gravity of the

offense    and      the    harshness       of     the      penalty;      (2)     the    sentences

imposed on other criminals in the same jurisdiction; and (3) the

sentences      imposed      for     commission          of   the     same      crime    in     other

jurisdictions.”            United States v. Wellman, 663, F.3d 224, 231

(4th Cir. 2011) (citing Solem, 463 U.S. at 292).

                                                 A.

                            Relevant Conduct Enhancement

               During      sentencing,          the     district         court    found        by    a

preponderance        of     the     evidence          that    James      had     committed          the

murder    of     Vance      Davis    and       that        this    qualified      as     relevant

conduct    under      the     sentencing          guidelines.             Specifically,             the

district court relied on two witnesses who confirmed that James

murdered    Davis.          Over     James’s          objection,      the      district        court

adopted the pre-sentence investigation report and applied the

cross-reference           found     in    Guidelines          §    2D1.1(d)(1)         for     first

degree    murder,         Guidelines       §    2A1.1.         This   application            of     the

cross-reference           increased       James’s       offense       level      under    § 2D1.1

from 38 to 43.

                                                 23
            In reviewing an enhancement for relevant conduct for

procedural error, we conduct two separate analyses.                               First, we

review for clear error the district court’s factual finding that

the    defendant     committed          the    relevant         conduct       offense       by    a

preponderance       of    the    evidence.           Horton,      693   F.3d     at     474–75.

Second,     we     review        de     novo        the    district       court’s           legal

determination that the relevant conduct offense qualifies for

the applicable cross-reference provision in the Guidelines.                                  Id.

            As     this     court       noted       in    Horton,       the    clear        error

standard    of     review    is       “very    deferential”        toward       the     factual

findings made by the district court.                            693 F.3d at 474.                  At

sentencing, the district court heard testimony by two witnesses,

Robert    Jones     and     Avery       Haigler,         each    indicating       James       had

murdered Vance Davis.                 Although James pointed out that there

were     certain    discrepancies             between      other       evidence       and        the

testimony    of     Jones       and    Haigler,       that      fact    alone,     does          not

overcome the fact that there was a sufficient amount of evidence

for the court to conclude, by a preponderance of the evidence,

that James murdered Davis.

            Finding the district court did not clearly err in its

factual determination that James murdered Davis, we now turn to

the legal question of whether the relevant conduct offense can

be applied under the cross-reference provision.                                In reviewing

the    district     court’s       determination            of    relevant       conduct       for

                                               24
sentencing purposes, the interrelation of two provisions in the

Guidelines       requires      discussion:        (1)     §    2D1.1(d)    (“the    Cross-

Reference Provision”); and (2) § 1B1.3 (“the Relevant Conduct

Guideline”).

            The offense level for James’s offenses of conviction –

- the     drug     conspiracy         and    possession           convictions       –-    is

established under Guideline § 2D1.1.                     Subsection (d) of § 2D1.1

provides the Cross-Reference Provision, which states in relevant

part: “If a victim was killed under circumstances that would

constitute murder under 18 U.S.C. § 1111 . . . apply § 2A1.1

(First    Degree    Murder)      or   §     2A1.2    (Second      Degree      Murder),    as

appropriate, if the resulting offense level is greater than that

determined under this guideline.”                 USSG § 2D1.1(d)(1).

            Unless      otherwise         specified       in     the   Guidelines,       the

application of the Cross-Reference Provision depends on whether

the   cross-referenced          offense      –-     in    this    case,    first    degree

murder    –-     constitutes      relevant          conduct       under    the    Relevant

Conduct Guideline found in § 1B1.3(a).                        Horton, 693 F.3d at 476.

Neither the parties, the district court, nor the Pre-Sentence

Investigation       Report      identifies        whether        the   cross-referenced

offense        should     be      considered             relevant       conduct      under

§ 1B1.3(a)(1) or § 1B1.3(a)(2), or any other provision for that

matter.        Under    any    provision,         however,       we    find   the   cross-



                                             25
referenced     murder   offense   not    to   be   relevant   conduct

attributable to the drug conspiracy in this case.

             The Relevant Conduct Guideline, § 1B1.3(a), states in

relevant part, that the application of a cross-reference shall

be determined on the basis of:

     (1)(A) all acts and omissions committed, aided,
     abetted, counseled, commanded, induced, procured, or
     willfully caused by the defendant; and

                                  ***

     that occurred during the commission of the offense of
     conviction, in preparation for that offense, or in the
     course   of   attempting    to   avoid  detection   or
     responsibility for that offense;

     (2) solely with respect to offenses of a character for
     which § 3D1.2(d) would require grouping of multiple
     counts,   all   acts   and   omissions  described   in
     subdivisions (1)(A) and (1)(B) above that were part of
     the same course of conduct or common scheme or plan as
     the offense of conviction; . . . .

USSG § 1B1.3(a).

          Here, the Davis murder cannot be considered relevant

conduct   under    either   provision.    First,   with   respect   to

§ 1B1.3(a)(1)(A), the evidence is insufficient to conclude that

the murder occurred during, in preparation for, or in the course

of attempting the drug conspiracy in this case.        While all the

witnesses at sentencing agreed James had murdered Davis, their

testimony was inconsistent, at best, as to whether the murder

involved drug-related activities, or was an act of vengeance for

Davis’s alleged attempted robbery of James’s mother’s residence.

                                  26
               Although    James’s   pre-sentence    report   indicates   that

Lenell Walker stated to police officers that Davis stole drugs

from       James,    prompting   James’s   retribution,    the   testimony   of

Robert Jones and Avery Haigler at sentencing provides no such

connection.          At most, Jones and Haigler indicated that at the

time of Davis’s murder, James was involved in the drug trade.

Neither      witness,     however,   indicated   Davis    successfully    stole

drugs from James or that they believed Davis was motivated by

James’s involvement in the drug trade.              In fact, both Jones and

Haigler testified that James was infuriated not because of any

connection the attempted break-in may have had to drugs, but

rather because the attempted break-in occurred at his mother's

residence.          In short, their testimony, and the overall weight of

the evidence, does not connect the attempted robbery and the

Davis murder with drug-related activity.

               Furthermore, there was no evidence Davis was ever a

part of the drug conspiracy in this case, or that James ever

sold drugs to, or purchased them from, Davis. 3                  Even if the


       3
       In the original indictment, and the first and second
superseding  indictments,   the  grand   jury  found,   and  the
indictments charged, that the drug conspiracy in this case began
at least as early as May 2007.     The Davis murder occurred in
July 2004.   If the relevant conduct offense had occurred far
beyond the temporal scope of the underlying offense, this would
have further indicated that the murder was not related to the
drug conspiracy.    The parties acknowledged at oral argument,
however, that the third superseding indictment charged that the
(Continued)
                                        27
murder   happened      to    be   “drug-related”        in    some    sense,   nothing

connects the Davis murder to the particular drug conspiracy in

this case.

             James was never charged with Davis’s murder nor had he

otherwise     ever    been    implicated        in   the     murder   up    until   the

present case.        We cannot simply assume every act committed by a

convicted    criminal,       no   matter    how      heinous,    is    connected    and

relevant to the offense of conviction.                  To do so would turn the

relevant     conduct     analysis    into       an   impermissible      conduit     for

punishing uncharged and unproven conduct and would circumvent

the criminal process.

             Second,     §   1B1.3(a)(2)        is   also    inapplicable      to   the

present case.          As we recently held in Horton, in order for

§ 1B1.3(a)(2) to apply, both the offense of conviction and the

relevant conduct offense must be capable of grouping.                          Horton,

693   F.3d   at   479.       Because   homicide        offenses       are   explicitly

excluded from grouping, § 1B1.3(a)(2) cannot apply.                         See id. at

477 (noting that § 1B1.3(a)(2) relies on § 3D1.2(d), which in




conspiracy began, not in 2007, but in 2001.  Therefore,  we do
not rely on the timing of the murder and the conspiracy in
reaching our conclusion that the government failed to show the
two events were sufficiently related to qualify as relevant
conduct.



                                           28
turn excludes Chapter Two, Part A offenses (except § 2A3.5),

which include the guideline for murder).

            We     therefore       conclude         that     the    district       court

committed procedural error in finding the Davis murder to be

relevant conduct to the underlying conspiracy in this case, and

thus   increasing       James’s    base     offense      level     under   the     cross-

reference provision.

                                            B.

                    Proportionality of Life Sentences

            With    respect       to   Appellant        James,     because    we    find

significant procedural error in the calculation of his sentence,

we do not reach the underlying substantive reasonableness of his

sentence.    See Horton, 693 F.3d at 472.                    Finding no error with

respect to Appellant Sellers, however, nothing prevents us from

considering the proportionality of Sellers’s life sentence.

            As noted, in reviewing the proportionality of a life

sentence,   this       circuit    applies        the   three-part      test   found   in

Solem. 463 U.S. at 292.                We examine “(1) the gravity of the

offense   and    the    harshness      of   the     penalty,     (2)   the    sentences

imposed on other criminals in the same jurisdiction, and (3) the

sentences   imposed      for     commission       of   the   same    crime    in   other

jurisdictions.”         United States v. Kratsas, 45 F.3d 63, 66 (4th

Cir. 1995) (citing Solem, 463 U.S. at 292).



                                            29
              In this case, the district court correctly applied the

Solem test and determined Sellers’s statutorily required life

sentence was not constitutionally disproportionate in violation

of the Eighth Amendment.             Under the first prong of the Solem

test, Sellers’s offenses were considerably serious.                       Sellers was

determined by the district court to be part of a conspiracy to

distribute five kilograms or more of cocaine.                   This circuit has

recognized that smaller amounts of drugs in a conspiracy can be

equally serious.        United States v. Kellam, 403 F. App’x 815, 817

(4th   Cir.    2010)    (finding      the   gravity     of    500   grams       to    1.5

kilograms of drugs included in a conspiracy to be sufficiently

serious   to       satisfy   the    first     Solem   prong).        Sellers          also

possessed      a    significant      criminal     history      related         to    drug

convictions.          This   circuit    has     repeatedly     found       that      life

sentences     for    similar   major    drug    conspiracies        for    defendants

with a history of drug convictions are not disproportionate to

similar sentences under the Sentencing Guidelines and sentences

imposed by states within this circuit.                  See Id. at 817 (citing

United States v. D’Anjou, 16 F.3d 604, 613–14 (4th Cir. 1994)).

              Accordingly,         Sellers’s     life        sentence          is     not

constitutionally        disproportionate         to     constitute        an        Eighth

Amendment violation.




                                         30
                                IV.

          For   the   aforementioned     reasons,   we   affirm   the

convictions of James, Sellers, and Matthews.         We also affirm

Sellers’s sentence.    We vacate James’s sentence and remand to

the district court for resentencing. 4

                                                    AFFIRMED IN PART,
                                                     VACATED IN PART,
                                                         AND REMANDED




     4
       We have examined all remaining issues raised by            the
Appellants in their brief and find them to be without merit.



                                31
SHEDD, Circuit Judge, concurring in part and dissenting in part:

      Although I concur in almost all of the majority’s opinion,

I respectfully dissent from its conclusion that the district

court      erred    in     applying        the      murder       cross-reference     when

determining Sigmund James’s sentence.

      I    agree   with    the       majority      that    the    framework   of    United

States v. Horton, 693 F.3d 463 (4th Cir. 2012), governs our

analysis     and    that       we    review        the    district    court’s      factual

findings for clear error and its legal determinations de novo,

id. at 474.        I further agree with the majority that the district

court did not clearly err in finding that James murdered Vance

Davis. 1

      I    disagree      with       the   majority,       however,    on   whether     the

murder cross-reference can be applied based on Davis’s murder.

The   evidence      in   the     record     provides       a     sufficient   connection

between Davis’s murder and the drug conspiracy for the murder to




      1
       The evidence established that James lured Davis to join
him by telling Davis that he (James) wanted Davis’s help with
something.   J.A. 1018–19.   James and Davis drove off together,
and soon after that James told Davis to pull over.    J.A. 1019.
James then shot Davis five times: once in the head, once in the
back, once in the chest, and twice through Davis’s right arm and
into his chest, J.A. 993–94. Any one of these shots could have
been fatal.    J.A. 992–94.    James left Davis’s bullet-riddled
body lying on a prominent road in Orangeburg on which a large
public high school is located. J.A. 975.



                                              32
be considered relevant conduct under United States Sentencing

Guideline § 1B1.3(a)(1)(A).

      First, it is important to clarify exactly what the record

was that the district court was permitted to use in sentencing

James and that we can consider here.                The majority seems to

believe     that     the   district    court     could     not    consider     the

Presentence    Report’s     (“PSR”)    evidence    about    why    James   killed

Davis.    See ante at 27.     Such a position is incorrect.

      At sentencing, James at first objected to the entire PSR,

and when prompted for more specific objections, he objected to

all of paragraphs 62, 63, 64, 65, and 66 of the PSR, which

described how and why James killed Vance Davis.                  J.A. 959, 1189–

91.   What followed this objection leaves no doubt that James

objected to the fact that he killed Davis, not why he killed

Davis.

      After the objection, the district court took testimony from

four witnesses—Orangeburg police Captain Ronda Bamberg, Robert

Jones, Avery Haigler, and James—regarding Davis’s murder.                    J.A.

972–1089.      The    testimony   of   the     witnesses    and    arguments    of

counsel at the sentencing hearing focused only on whether James

killed Davis, not whether that killing was relevant to the drug




                                       33
conspiracy. 2     See    J.A.     972–1093.        After    having    heard        and

considered all of this evidence, the district court overruled

James’s   objections     to     these   paragraphs,        making    an    explicit

finding of fact that James killed Davis.               J.A. 1101; see United

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991) (holding

that a district court may comply with Federal Rule of Criminal

Procedure 32(c)(3)(D) either by separately reciting its findings

or   expressly    adopting        the   recommendations        of     the        PSR).

Confirming that James objected only to the question of whether

he   committed   the    murder,   after      the   district   court       made   this

finding, James’s counsel stated “None, your Honor, no,” when

asked if he had any further objections.                J.A. 1101.          Based on

the testimony, arguments, and even James’s allocution, 3 James’s

objection to these paragraphs in the PSR was based on the fact

that he allegedly did not kill Davis, not why he killed Davis.

James could have argued that, even if he did kill Davis, he did

so for a reason unrelated to the drug conspiracy, but James

never made that argument.


      2
       In these pages of the transcript, James took the stand and
emphatically denied killing James.    J.A. 1059.  All of James’s
testimony focused on whether he killed James, not any motivation
for the killing. See J.A. 1059–89.
      3
       When allocuting, James again denied the murder, without
ever arguing that the murder was unrelated to the drug
conspiracy. J.A. 1106.



                                        34
     Because    the      district   court    addressed     James’s     specific

objection, it did not need to make an explicit finding about the

murder’s relevance to the drug conspiracy.               On this point, the

district court was entitled to rely on the PSR’s evidence about

why James killed Davis.         Having overruled James’s objection to

the fact of the killing, the district court could, as it did, 4

adopt and rely upon the other facts in the PSR, including from

the paragraphs to which James had objected on another basis, to

use in sentencing James.       J.A. 1101–03.

     Having clarified what evidence is in the record and can be

considered when determining James’s sentence, the next issue is

whether that evidence sufficiently connects Davis’s murder with

the drug conspiracy.       The answer is unequivocally yes.

     Most    obviously      connecting      the   murder      with    the   drug

conspiracy are two statements from the PSR.              First, paragraph 63

states   that   Lenell    Walker    told   special   agents    from   the   Drug

Enforcement Agency that James told him (Walker) that he (James)

killed Davis because Davis had stolen drugs from him (James).

J.A. 1190.      Second, paragraph 64 states that James told Jones


     4
        Although the district court perhaps could have more
explicitly stated that it was adopting the other facts in the
PSR, that the district court adopted those facts is obvious.
See J.A. 1101–03.    Without having done so, the district court
would have had no basis for determining the applicable statutory
provisions, which the district court based on the PSR.



                                      35
that       Davis    had     broken       into    his     (James’s)      home       and    stolen

cocaine, prompting Jones to tell James to resolve the problem or

Jones would not provide James any more cocaine.                               J.A. 1190–91.

These two pieces of evidence leave no doubt that the district

court could have found that James shot Davis in relation to the

drug conspiracy.

       No other evidence in the PSR or from the sentencing hearing

contradicts these statements about why James killed Davis such

that       the    district       court     could      not    have    found     that      James’s

motivation         for    killing        Davis     was      drug-related.          The        other

evidence shows the following: James killed Davis after Davis had

attempted to break into and rob James’s mother’s trailer, J.A.

1010; James was living in his mother’s trailer at that time,

J.A.       1010;    James      had   engaged       in    drug       transactions         at    that

trailer,         J.A.    1043;    and    James     was      deeply    engaged      in     a    drug

conspiracy at this time, ante at 27–28 n.3.                                 None of this is

inconsistent        with       the   two    statements        from    the    PSR    about       why

James killed Davis. 5

       Although          the     majority        focuses       on     the     “inconsistent”

testimony about whether Davis attempted to rob James because of


       5
       Nothing is necessarily inconsistent about the fact that
James described an attempted robbery by Davis and a robbery by
Davis.   James may have been discussing two separate incidents,
or he may have varied the story depending on his audience.



                                                 36
his drug-related activities or simply attempted to rob James’s

mother, ante at 26, the majority’s analysis belies its claim of

any inconsistency.          In fact, the majority’s analysis indicates

that    it     believes   that     the       testimony    clearly       supports      the

conclusion that James killed Davis out of anger that Davis tried

to rob James’s mother.             See ante at 27.           Yet the testimony is

not nearly so clear.             James was undoubtedly upset about the

attempted robbery, but neither Jones nor Haigler testified at

the    hearing    about   specifically         why   James      was   upset.         Their

statements about the trailer belonging to James’s mother are

more descriptive of where the attempted robbery took place than

of why James was upset.                See J.A. 1010–12, 1039–42.                    Their

testimony is certainly, at the very least, not dispositive that

the motive for the killing was that Davis tried to rob James’s

mother.        Furthermore,      to    the    extent     that    this    evidence      is

inconsistent with the PSR, the district court could choose to

rely on the evidence from the PSR about the motive for the

killing rather than the testimony at the sentencing hearing.

This    testimony     therefore        provides      little      support       for    the

majority’s conclusion.

       Taken    together,    the      evidence    overwhelmingly        supports      the

conclusion that the murder was relevant to the drug conspiracy.

To conclude that James killed Davis in connection with the drug

conspiracy—whether because James believed Davis stole drugs from

                                          37
him or because James needed to “send a message” that he would

not    tolerate      such    threats      against      him—is    not     difficult.           In

reality, it is the            most logical conclusion when considering the

evidence      in    the     record    and    taking      into    account    what       common

knowledge tells us about the connection between drug dealers and

gun violence.         See United States v. Mitten, 592 F.3d 767, 777–78

(7th    Cir.       2010)    (recognizing        that     “[d]rug       traffickers          will

commonly possess firearms to protect their product, to protect

their drugs, to protect their cash, to protect their life and

even    to    protect       their    turf”      (alteration       in    original));          cf.

United States v. Grogins, 163 F.3d 795, 799 (4th Cir. 1998)

(noting that “the background fact that the connection between

illegal      drug    operations      and     guns   in    our    society    is     a    tight

one”).

       This conclusion thus does not “turn the relevant conduct

analysis into an impermissible conduit for punishing uncharged

and    unproven      conduct,”       as   the    majority       fears.     Ante        at    28.

Instead, this conclusion ensures that James receives the most

just punishment that reflects all of his actions relating to his

crimes of conviction.               Therefore, I believe the district court

did not err by finding that the murder was relevant to the drug

conspiracy and thus properly applied the murder cross-reference,

and    I     respectfully       dissent         from     the     majority’s       contrary

conclusion.

                                             38
