                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                           No. 98-4926
JERRY ANTONIO WILLIAMS,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                           No. 99-4129
HILTON THOMAS, a/k/a Dinkles,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                              No. 99-4867
TIMOTHY EDWARD SIMMS, a/k/a
DeNasty,
             Defendant-Appellant.
                                       
          Appeals from the United States District Court
           for the District of Maryland, at Baltimore.
             William M. Nickerson, District Judge.
                       (CR-97-355-WMN)

                      Argued: May 9, 2001

                      Decided: July 31, 2001
2                      UNITED STATES v. WILLIAMS
    Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per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


                               COUNSEL

ARGUED: Fred Warren Bennett, Greenbelt, Maryland; Michael
Daniel Montemarano, Baltimore, Maryland, for Appellants. Robert
Reeves Harding, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee. ON BRIEF: Thomas J. Saunders, Baltimore,
Maryland, for Appellant Thomas. Stephen M. Schenning, United
States Attorney, Baltimore, Maryland, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                               OPINION

PER CURIAM:

   Jerry Antonio Williams, Hilton Thomas, and Timothy Edward
Simms (collectively, "Appellants") were convicted of various charges
stemming from their involvement in the murder of John Jones. For the
reasons set forth below, we affirm Appellants’ convictions and
Thomas’ sentence; however, we vacate Simms’ sentence and remand
for resentencing.1
    1
     Williams does not challenge his sentence.
                      UNITED STATES v. WILLIAMS                        3
                                   I.

   Because our discussion below requires us to consider only legal
issues, the facts may be briefly stated. Beginning in the late 1980s,
Anthony Jones operated an increasingly large and violent drug distri-
bution ring ("the Jones organization") in east Baltimore, Maryland.
As a means of protecting the organization and fostering a reputation
as one to be feared and respected, Jones engaged in or ordered numer-
ous acts of violence and intimidation against others. Williams, as one
of Jones’ chief lieutenants, was directly or indirectly involved in
many of these acts.

   The trial in this case primarily concerned the murder of John Jones
("John"), Jones’ adopted brother. In February 1997, Jones learned that
John was cooperating with a federal investigation of the Jones organi-
zation. Jones, who at that time was incarcerated in a federal peniten-
tiary in Pennsylvania, instructed Williams to arrange for John’s
murder. The Government presented evidence that the murder was ulti-
mately carried out by Thomas and Simms.

   Based upon the evidence presented at trial, Williams and Thomas
were convicted of murder in aid of racketeering, see 18 U.S.C.A.
§ 1959(a)(1) (West 2000); Thomas and Simms were convicted of con-
spiracy to distribute heroin and cocaine, see 21 U.S.C.A. § 846 (West
1999); and Thomas was convicted of conspiracy to murder in aid of
racketeering, see 18 U.S.C.A. § 1959(a)(5) (West 2000), and conspir-
acy to retaliate against witnesses, see 18 U.S.C.A. § 1513(a)(1) (West
2000).2 Appellants raise numerous challenges to their convictions;
Thomas and Simms additionally argue that their sentences on the drug
trafficking counts are improper under Apprendi v. New Jersey, 530
U.S. 466 (2000). Although we have carefully considered all of Appel-
lants’ claims, only Williams’ challenge to the jury instructions and
  2
   Although Simms was charged with conspiracy to murder in aid of
racketeering, murder in aid of racketeering, and conspiracy to retaliate
against witnesses, the jury acquitted him of those charges. Williams, who
had previously been convicted of other crimes in connection with his
involvement in the Jones organization, was charged only with murder in
aid of racketeering.
4                    UNITED STATES v. WILLIAMS
Thomas’ and Simms’ Apprendi challenges merit extended discussion.
The remaining claims are rejected without further comment.

                                  II.

   We first consider Williams’ challenge to the jury instruction given
by the district court regarding criminal liability for aiding and abet-
ting. That instruction was as follows:
       Under the aiding and abetting statute, it’s not necessary
    for the government to show that a defendant himself physi-
    cally committed the crime with which he is charged in order
    for you to find the person guilty. The person who aids or
    abets another to commit an offense is just as guilty of that
    offense as if he committed it himself.
       Accordingly, you may find a defendant guilty of the
    offense charged if you find beyond a reasonable doubt that
    the government has proved that another person actually
    committed the offense with which the defendant is charged,
    and that the defendant aided or abetted that person in the
    commission of the offense.
       ....
       And in order to aid or abet another to commit a crime, it’s
    necessary that the defendant willfully and knowingly partic-
    ipate or associate himself in some way with the crime, and
    that he willfully and knowingly seek by some act to help
    make the crime succeed.
       Participation in a crime is willful if action is taken volun-
    tarily or intentionally, or in case of a failure to act, with a
    specific intent to [fail] to do something that the law requires
    to be done; that is to say, with a bad purpose either to dis-
    obey or disregard the law.
       The mere presence of a defendant, where a crime is being
    committed, even coupled with knowledge by the defendant
    that a crime is being committed, or the mere acquiescence
    by a defendant in the criminal conduct of others, even with
    guilty knowledge, is not sufficient to establish aiding and
    abetting.
                      UNITED STATES v. WILLIAMS                        5
       An aider and abettor must have some interest in the crimi-
    nal venture, and his participation in, or association with the
    crime, must occur before or at the time of the criminal act.
      To determine whether a defendant aided or abetted the
    commission of a crime with which he’s charged, you could
    ask yourself these questions:
      Did he participate in the crime charged as something that
    he wished to bring about?
       Did he associate himself with the criminal venture know-
    ingly and willfully?
      Did he seek by his actions to make the criminal venture
    succeed?
       And, if he did, then [the] defendant is an aider and [abet-
    tor] and, therefore, guilty of the offense.
       If, on the other hand, your answers to the series of ques-
    tions are no, then the defendant is not an aider and abettor,
    and you must find him not guilty.
J.A. 457-60 (emphasis added). Williams acknowledges that the dis-
trict court gave the standard pattern jury instruction for criminal lia-
bility as an aider and abettor. Nevertheless, he contends that the
emphasized portion of the instruction is erroneous because it allowed
the jury to acquit only if it answered "no" to all of the questions posed
by the district court, when an acquittal would have been required
upon a negative answer to any one of the questions. Williams claims
that this flaw in the instruction allowed the jury to convict him based
on a finding of mere association with John’s murder, instead of upon
a finding that he rendered some assistance prior to, or contemporane-
ously with, the commission of the crime.
   We review the content of jury instructions for abuse of discretion,
and we must affirm if "the instructions, taken as a whole, adequately
state the controlling law." United States v. Hassouneh, 199 F.3d 175,
181 (4th Cir. 2000) (internal quotation marks omitted). In conducting
this review, we must bear in mind that "[i]t is not the function of an
appellate court to nit-pick jury instructions to death." Hardin v. Ski
Venture, Inc., 50 F.3d 1291, 1296 (4th Cir. 1995).
6                     UNITED STATES v. WILLIAMS
   Williams’ challenge to the instruction given by the district court
focuses exclusively on the last sentence. Were such a myopic view
proper in reviewing a challenged jury instruction, Williams’ argument
would have at least some superficial appeal. However, we must view
the instructions as a whole, and doing so compels the conclusion that
instruction adequately informed the jury that it could not convict Wil-
liams unless it found that he actively participated in John’s murder.
We therefore reject this challenge.

                                   III.

   We next turn to Thomas’ and Simms’ challenges to their sentences.
Thomas and Simms both maintain that the district court erred in fail-
ing to treat drug quantity as an element of the drug trafficking
offense.

   Because neither Appellant raised this issue before the district court,
our review is for plain error. See United States v. Olano, 507 U.S.
725, 731-32 (1993). In order to demonstrate plain error, Appellants
must show that an error occurred, that the error was plain, and that
the error affected their substantial rights. See id. at 732; United States
v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997). Even if Appellants can
satisfy these requirements, correction of the error remains within our
discretion, which we should not exercise unless the error seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings. See Olano, 507 U.S. at 732.

   In light of our recent en banc opinion in United States v. Promise,
___ F.3d ___ (4th Cir. June 29, 2001) (en banc), we conclude that
Thomas and Simms have demonstrated that an error occurred and that
the error was plain. Here, as in Promise, Thomas and Simms were
charged in an indictment that did not allege a specific threshold drug
quantity, and the jury was not instructed regarding drug quantity.
Accordingly, Thomas’ and Simms’ convictions on the drug traffick-
ing count exposed them to a maximum statutory penalty of 20 years,
and the sentences imposed by the district court on those convictions
—life imprisonment for Thomas and 40 years imprisonment for
Simms—were plainly erroneous. See Promise, ___ F.3d at ___.
                       UNITED STATES v. WILLIAMS                         7
   We further conclude that Simms has demonstrated that the error
affected his substantial rights. Simms was convicted only of a single
count of drug trafficking. Because his sentence of 40 years exceeded
—indeed, was twice as long as—the maximum penalty to which his
conviction exposed him, his substantial rights were affected by the
sentencing error of the district court. See id. at ___. And, in light of
the Government’s concession at oral argument that the evidence
regarding threshold drug quantity was neither overwhelming nor
uncontroverted, cf. id. at ___ (opinion of Wilkins, J.) (declining to
notice Apprendi error in part because evidence of threshold drug
quantity was overwhelming and uncontroverted), we exercise our dis-
cretion to notice the error. We therefore vacate Simms’ sentence and
remand for resentencing.3
  3
   In calculating Simms’ sentence under the United States Sentencing
Guidelines Manual (1998), the district court applied a cross-reference to
the murder guideline based on Simms’ involvement in John’s murder.
See U.S.S.G. § 2D1.1(d)(1). Simms now maintains that the district court
violated Apprendi by applying the cross-reference based upon acquitted
conduct. We disagree; nothing in Apprendi contradicts the settled hold-
ing of the Supreme Court that district courts may consider acquitted con-
duct in applying the guidelines when that conduct has been proven by a
preponderance of the evidence. See United States v. Watts, 519 U.S. 148,
157 (1997) (per curiam); cf. United States v. Kinter, 235 F.3d 192, 199-
202 (4th Cir. 2000) (concluding that the procedures mandated by the sen-
tencing guidelines do not violate the rule set forth in Apprendi), cert.
denied, 121 S. Ct. 1393 (2001). Moreover, the district court did not com-
mit clear error in applying the cross-reference to the murder guideline
based on the evidence concerning Simms’ participation in the murder.
   In light of our conclusion that the district court appropriately applied
the cross-reference to the murder guideline, we do not address Simms’
argument that his criminal history score should not include a prior con-
viction which, he asserts, was uncounseled. The murder guideline,
U.S.S.G. § 2A1.1, sets a base offense level of 43, resulting in a presump-
tive life sentence for all criminal history categories. See id. Ch.5, Pt.A
(Sentencing Table). Accordingly, even if the district court erred in
including the challenged conviction in Simms’ criminal history score,
Simms’ guideline sentence would be the same. And, the guidelines pro-
vide that when the guideline sentence (here, life imprisonment) exceeds
the statutory maximum penalty (here, 20 years), "the statutorily autho-
rized maximum sentence shall be the guideline sentence." Id. § 5G1.1(a).
8                      UNITED STATES v. WILLIAMS
   In contrast to Simms, Thomas cannot demonstrate that the error of
the district court affected his substantial rights. In addition to his drug
trafficking conviction, Thomas was convicted of, and received a life
sentence for, murdering John in aid of racketeering. In view of the
imposition of a life sentence on another conviction, the life sentence
erroneously imposed for Thomas’ drug trafficking conviction did not
affect his substantial rights.

                                    IV.

  In sum, we affirm Appellants’ convictions and Thomas’ sentence.4
However, we vacate Simms’ sentence and remand for resentencing.

                          AFFIRMED IN PART, VACATED IN PART,
                                              AND REMANDED
    4
    We hereby grant Williams’ motion for leave to present an additional
claim based on our recent holding in United States v. Boone, 245 F.3d
352, 358-61 (4th Cir. 2001), that 18 U.S.C.A. § 3005 (West 2000) enti-
tles a defendant indicted for a crime potentially punishable by death to
representation by two attorneys regardless of whether the Government
actually seeks the death penalty. Since murder in aid of racketeering is
such a crime (indeed, the Government initially sought the death penalty
against Williams, but later withdrew its notice of intent to seek the death
penalty), Williams contends that he is entitled to a new trial because he
was represented by only one attorney at trial. See Boone, 245 F.3d at
364.
   Because Williams did not raise this claim in the district court, we
review for plain error. See Olano, 507 U.S. at 731-32. Even if we were
to assume that there was error, that the error was plain, and that the error
affected Williams’ substantial rights, we would decline to exercise our
discretion to notice the error. Simply put, the error here—the failure to
provide a non-capital defendant the benefit of a provision designed to
provide additional protection to capital defendants—did not affect the
fairness, integrity, or public reputation of judicial proceedings.
