                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 03-4909



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


KEVIN IVAN ANTHONY, a/k/a Van,

                                               Defendant - Appellant.


                               No. 03-4945



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


CARLOS DEAN SCOTT, a/k/a Binky, a/k/a Bink,

                                               Defendant - Appellant.


Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-241)


Submitted:    May 13, 2005                    Decided:   July 12, 2005


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Dennis H. Curry, Spencer, West Virginia; Troy N. Giatras, Mark L.
French, GIATRAS & WEBB, Charleston, West Virginia, for Appellants.
Kasey Warner, United States Attorney, John L. File, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




                              - 2 -
PER CURIAM:

             Kevin Ivan Anthony (Appeal No. 03-4909) and Carlos Dean

Scott   (Appeal   No.    03-4945)    appeal   from    their   judgments   of

conviction and sentences, based on jury verdicts, finding them

guilty of one count each of conspiracy to distribute fifty grams or

more    of   cocaine    base   and   a   quantity    of   hydromorphone   and

distribution of five grams or more of cocaine base, and aiding and

abetting same, in violation of 21 U.S.C. §§ 846, 841(a)(1) (2000)

and 18 U.S.C. § 2 (2000), respectively (Anthony); and one count of

conspiracy to distribute fifty grams or more of cocaine base and a

quantity of hydromorphone, and three counts of distribution of five

grams or more of cocaine base, in violation of 21 U.S.C. §§ 846,

841(a)(1) (2000) and 18 U.S.C. § 2 (2000), respectively (Scott).

Anthony and Scott appeal their convictions, alleging that the

district court:        (1) clearly erred in finding that the jury

selection process in the Southern District of West Virginia did not

render Appellants’ trial unconstitutional, despite the fact that

neither the jury venire nor the jury panel contained African-

Americans; (2) erred in failing to order a sua sponte mistrial or

other corrective action based upon an ex parte communication

between the Assistant United States Attorney and a witness’s

supervising probation officer during trial; and (3) abused its

discretion in denying Anthony’s proposed jury instruction on aiding

and abetting.      They also allege plain error relative to their


                                     - 3 -
sentences under United States v. Booker, 125 S. Ct. 738 (2005),

because the district court calculated drug weights for relevant

conduct purposes used to determine their base offense levels, and

applied a two-level enhancement to their base offense levels

pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2003).

Anthony also challenges the district court’s failure to consider

Anthony’s request to be considered as a minor role participant

pursuant to USSG § 3B1.2. In accordance with our discussion below,

we affirm Anthony’s and Scott’s convictions, but vacate their

sentences and remand to the district court for resentencing.

                       I.   Conviction Issues

             The first challenge Appellants advance relative to their

convictions is that the jury venire was unconstitutional because it

systematically excluded African-Americans and other minorities from

jury service.1      When there were no minorities on the forty-seven

person venire, Appellants made a timely objection and evidence was

taken from Sam Kay, the Clerk of Courts for the Southern District

of West Virginia and Cassandra Staples, Deputy Clerk in Charge of

the Beckley Division of the Southern District of West Virginia

during an in camera hearing on the issue.

             Kay testified that the jury selection plan used in this

case was that used for all jury trials in the Southern District of

West Virginia.      The Clerk’s office obtains names of prospective


     1
         Both Anthony and Scott are African-American.

                                 - 4 -
jurors from the voter registration list and the list of drivers

holding a valid West Virginia driver’s license.            The driver’s

license list was added in 1997 as a “direct effort” to include more

African-Americans.      Kay testified that the persons selected as

potential jurors are chosen at random without reference to their

race.   He further testified that approximately 2.2 percent of the

qualified    jurors   in   the   division   are   African-American,   and

approximately 3.2 percent of the state population is African-

American.   Staples testified that the venire called for this trial

came from a group of 188, of which one was African-American, and

that the jurors chosen for the venire were chosen at random without

regard to race.2      The district court determined that Appellants

failed to establish the third prong of the test set forth in Duren

v. Missouri, 439 U.S. 357 (1979), i.e. they did not establish that

the under-representation of minorities, and of African-Americans in

particular, was due to a “systematic exclusion of the group in the

jury-selection process.”     Duren, 439 U.S. at 364.

            Appellants assert, for the first time on appeal, that the

jury selection process systematically excludes African-Americans

because it excludes from service felons and all single parents

whose children are under the age of ten.           To the extent these


    2
     The district judge took judicial notice that, to the best of
its recollection, this was the first pool of its size that did not
contain any African-American individuals in the Beckley or
Bluefield divisions of the district during the eleven years the
judge had served.

                                  - 5 -
arguments   are   not    waived   because   they   were   not   specifically

asserted first in the district court, see Muth v. United States, 1

F.3d 246, 250 (4th Cir. 1993), we find that they have no merit.

            This court previously has approved the use of a voter

registration list as a vehicle to select jurors.          United States v.

Lewis, 10 F.3d 1086 (4th Cir. 1993); United States v. Cecil, 836

F.2d 1431 (4th Cir. 1988).        While we have not addressed the use of

the driver’s list, it has been approved by at least one of our

sister circuits.        See Ramseur v. Beyer, 983 F.2d 1215 (3d Cir.

1992).   Moreover, the purpose of including the driver’s license

list in this district was a direct attempt to increase the number

of African-Americans in the jury venire.

            In addition, the constitutionality on various grounds of

the exclusion of felons from jury service pursuant to 28 U.S.C.

§ 1865(b)(5), has been upheld by those courts in which the issue

has been considered.       See, e.g., United States v. Barry, 71 F.3d

1269, 1273-74 (7th Cir. 1995); United States v. Arce, 997 F.2d

1123, 1127 (5th Cir. 1993); United States v. Greene, 995 F.2d 793,

796 (8th Cir. 1993); United States v. Foxworth, 599 F.2d 1, 4 (1st

Cir. 1979); United States v. Test, 550 F.2d 577, 594 (10th Cir.

1976) (en banc).

            Finally, the jury plan at issue states that single

parents with children under the age of ten “whose health and/or

safety would be jeopardized by [the individual’s] absence for jury


                                    - 6 -
service” may be excused upon the individual’s request.                This

provision is not an outright exclusion, and does not establish an

inherent or systematic exclusion of African-Americans pursuant to

Duren.      See, e.g., United States v. Eskew, 460 F.2d 1028 (9th Cir.

1972) (upholding similar provision).         Accordingly, we agree with

the   district     court’s   determination   that   the   jury   venire   in

Appellants’ case was not unconstitutional.

              Appellants also assert prejudice based on a communication

between the Assistant United States Attorney and the United States

Probation Officer who supervised government witness O.T. Scott.

Specifically, on cross-examination, Scott’s drug use while under

the supervision of the probation office became a subject of inquiry

by the defense.       The Assistant United States Attorney asked the

probation officer whether Scott had tested positive for drug use

while on bond awaiting sentencing, and the probation officer

responded that Scott had been subjected to urinalysis while under

supervision and that he had had no positive tests except for

prescription medication. There is no indication in the record, nor

do Appellants assert, that the jury was aware of the communication.

              Appellants assert that the information regarding Scott’s

drug use while on bond was Brady3 or Giglio4 material, which should

have been produced to Appellants prior to trial.             They further


      3
          Brady v. Maryland, 373 U.S. 83, 87 (1963).
      4
          Giglio v. United States, 405 U.S. 150 (1972).

                                   - 7 -
assert that the actions of the Assistant United States Attorney in

asking the question of the probation officer, and the probation

officer’s    action     in   responding      to      the    question,    demonstrate

collusion between the two agencies and an agreement that the

probation    officer     would   assist      the      government    in    convicting

Appellants.      They seek a new trial.

            We find Appellants’ claim to be without merit.                    First,

because Appellants failed to ask for a mistrial in the district

court, we review for plain error their present claim that the

district court should have granted a sua sponte mistrial on the

basis of the contact between the government and the probation

officer.    See United States v. Olano, 507 U.S. 725, 731-32 (1993).

We find no prejudice shown on this record such as would seriously

affect the fairness, integrity, or reputation of the judicial

proceedings.      Id.   There has been no demonstration whatsoever by

Appellants that the communication affected their rights at all,

particularly given that the jury was unaware of the communication.

The defense itself raised the subject issue on cross-examination,

thus opening the door for the redirect examination by the Assistant

United States Attorney. In addition, the documentation relating to

the witness’s drug testing properly was withheld from disclosure by

the   district    court      because    it     did    not    contain     exculpatory

information or information otherwise beneficial to the defense, and

therefore its production was not required under Brady or Giglio.


                                       - 8 -
Hence, there was no error by the district court relative to the

subject communication.

            The final conviction-related issue raised on appeal is

Anthony’s assertion that the district court erred in excluding his

proposed jury instruction regarding his affirmative duty to act

when in the presence of illegal activity.          Anthony sought a “clear

statement” by the district court to the effect that his mere

presence as a driver cannot be enough to convict him as an aider

and abettor.

            While     the   district    court    initially     refused   the

instruction as being contrary to law, it later held that the

standard aiding and abetting instruction adequately covered the

issue.     We find that the instruction given by the district court

accurately stated the law on aiding and abetting.                See United

States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).             In

addition, the instruction given included the “clear statement”

Anthony sought that the government had to prove that he had an

active role in the distribution to be convicted as an aider and

abettor, and that being a mere bystander was insufficient to

establish criminal culpability.           Anthony cannot show prejudice

because    the   instruction    given   reflects    the   requisite   intent

necessary for a conviction.      Hence, we find no abuse of discretion

in   the   district   court’s   refusal    of   Anthony’s    proffered   jury




                                   - 9 -
instruction.     See United States v. Ruhe, 191 F.3d 376, 385 (4th

Cir. 1999).

                        II. Sentencing Issues

             Anthony and Scott claim error with regard to the district

court’s   calculation    of   drug    weights      attributable    to    them    in

calculating their base offense levels, in the two-point enhancement

applied by the district court pursuant to USSG § 2D1.1(b)(1), and

to their respective sentences for possession of a firearm. Anthony

also asserts error by the district court in failing to consider him

a minor role participant and thus refusing to decrease his offense

level pursuant to USSG § 3B1.2.        Both Anthony and Scott have raised

the constitutionality of their sentences based on Booker and United

States v. Hughes, 401 F.3d 540 (4th Cir. 2005), asserting plain

error by the district court in determining their sentences based on

judicially-determined     facts      found    by   a   preponderance     of     the

evidence and under a mandatory guidelines sentencing scheme.                    The

Government     has   responded,   stating      that    it   does   not    oppose

resentencing in these cases because the district court’s mandatory

application of the guidelines is error in light of the subsequently

decided legal authority.

             Here, the district court sentenced Anthony and Scott on

October 29, 2003, under the mandatory guidelines scheme in place

prior to the Supreme Court’s decision in Booker, and prior to this




                                     - 10 -
Court’s decision in Hughes.5            The drug conspiracy statute under

which both Anthony and Scott were convicted, 21 U.S.C. § 846,

carries a prescribed sentence of ten years to life.                        21 U.S.C.

§ 841(b)(1)(A)(IV)(iii). The drug distribution statute under which

they   were    both   convicted,     21   U.S.C.    §   841(a)(1),     carries     a

prescribed     sentence     of   five     to   forty       years.      21     U.S.C.

§ 841(b)(1)(B)(IV)(iii). In preparing the presentence reports, the

probation officer concluded that a base offense level of thirty-

eight was proper both for Anthony and for Scott, based on a

quantity of     twenty    pounds   of     cocaine   base,       pursuant    to   USSG

§§ 2D1.1(a)(3), 2D1.1(c).6         The probation officer’s determination

of the amount of cocaine base was based                    on the offenses of

conviction,     extensive    grand      jury   testimony,        debriefings     and

codefendant interviews, trial evidence and testimony, and the

representations of Alfred Rucker.               In addition, the probation

officer added a two-point enhancement to the base offense level of

both Anthony     and   Scott,    pursuant      to   USSG    §   2D1.1(b)(1),      for



           5
        Just as we noted in Hughes, "[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time" of Anthony’s and Scott's resentencing. 401
F.3d at 545 n.4; see generally Johnson v. United States, 520 U.S.
461, 468 (1997) (stating that an error is "plain” if "the law at
the time of trial was settled and clearly contrary to the law at
the time of appeal").
       6
       The amount of cocaine base, converted into kilograms for
purposes of the guidelines calculation, yielded 9.072 kilograms,
and a base offense level for an offense involving 1.5 kilograms or
more of cocaine base.

                                     - 11 -
possession of a firearm.       Finally, the probation officer applied a

further two-point enhancement to Scott’s sentence, pursuant to USSG

§ 3B1.1(c), for being a leader and organizer of the conspiracy.

Anthony’s total offense level was forty, and Scott’s was forty-two.

            The probation officer then assigned a criminal history

category to Anthony of II, and a criminal history category to Scott

of VI,7 based on his career offender status pursuant to USSG

§ 4B1.1.    The resultant guideline range for Anthony was set at 324

to 405 months.   The resultant guideline range for Scott was set at

360 months to life.

            Based solely on the indictment, i.e. facts found by the

jury, the drug amounts would yield a base offense level of thirty-

two for both Anthony and for Scott, with a resultant unenhanced

guideline range of 135-168 for Anthony and 188-255 for Scott.

Thus, the higher offense level resulted in a substantial increase

in the guideline ranges for both Anthony and Scott.

            Ultimately, the district court sentenced          Anthony to 324

months’ imprisonment on each count (the low end of the assigned

guideline    range),   to    run   concurrently,   a   five   year   term   of

supervised release, and ordered payment of a $5000 fine and a $200

special assessment.         The district court sentenced Scott to 360

months’ imprisonment on each count (the low end of the assigned


    7
     The district court adjusted Scott’s criminal history category
at trial to V, but the adjustment did not change the applicable
guideline range.

                                    - 12 -
guideline    range),      to   run    concurrently,         a    five   year   term    of

supervised release, and ordered payment of a $5000 fine and a $400

special assessment.            Hence, the district court’s findings at

sentencing relative to the base offense level and the enhancements,

determined by a preponderance of the evidence, resulted in a

substantially increased sentence for both Anthony and Scott.

             In Booker, the Supreme Court applied the decision in

Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal

sentencing guidelines and concluded that the Sixth Amendment is

violated when       a    district    court    imposes       a    sentence    under    the

Sentencing Guidelines that is greater than a sentence based solely

upon facts found by the jury.            Booker, 125 S. Ct. at 752-56.                The

Court   remedied        the   constitutional        violation      by   severing      two

statutory provisions, 18 U.S.C. § 3553(b)(1) (West Supp. 2004)

(requiring    sentencing       court    to    impose    a       sentence    within    the

applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000

& Supp. 2004) (setting forth appellate standards of review for

guideline issues), thereby making the guidelines advisory. Hughes,

401 F.3d at 546 (citing Booker, 125 S. Ct. at 757 (Breyer, J.,

opinion of the Court)).

            After       Booker,    courts    must    calculate      the     appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),

and impose a sentence.            If a court imposes a sentence outside the


                                       - 13 -
guideline range, the district court must state its reasons for

doing so.    Hughes, 401 F.3d at 546.        This remedial scheme applies

to any sentence imposed under the mandatory sentencing guidelines,

regardless of whether or not the sentence violates the Sixth

Amendment.    Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,

J., opinion of the Court)).

            In this case, as in Hughes, the district court sentenced

Anthony and    Scott   by   applying   the    guidelines   as   a   mandatory

determinant in sentencing and based upon facts not authorized by

the jury’s findings.        In light of the change in the law, we

conclude that the district court erred in determining Appellants’

sentences, that the error was plain and affected Appellants’

substantial rights, and that we should exercise our discretion to

notice the error.       We therefore vacate Anthony’s and Scott’s
                                               9
sentences and remand for resentencing.8


     8
      Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767.      On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.
§ 3553(a), and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2). Id. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
     9
      We decline to address the propriety of the district court’s
refusal to apply USSG § 3B1.2 to Anthony’s sentence, in light of
the disposition of this appeal. Id. at 556 n.15.

                                 - 14 -
          Accordingly, although we affirm Anthony’s and Scott’s

convictions, we vacate their sentences and remand to the district

court for resentencing in accordance with Booker and Hughes.    We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




                              - 15 -
