                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4250



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus

JOE ANTHONY BROWN,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-185-V)


Argued:   December 3, 2004                 Decided:   April 25, 2005


Before LUTTIG, TRAXLER, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


ARGUED: Richard Deke Falls, BARNETT & FALLS, Charlotte, North
Carolina, for Appellant. Karen Marston Wilson, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Joe Anthony Brown appeals his convictions and sentence on

three drug- and firearm-related charges.                   Brown maintains that the

district    court   erred    in    denying          his   motions   for   judgment   of

acquittal on two of those counts, and in sentencing him to a prison

term of life plus 134 months.                  As explained below, we affirm

Brown’s convictions.        However, we vacate his sentence and remand

for resentencing in light of United States v. Booker, 125 S. Ct.

738 (2005), and its progeny.


                                        I.

     In 2001, a grand jury in the Western District of North

Carolina charged Brown in three counts of a nine-count indictment

with:     (1) conspiracy to possess with intent to distribute more

than fifty grams of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 846 (the “drug conspiracy count”); (2) possession

with intent to distribute more than five grams of cocaine base, and

aiding    and   abetting    the    same,       in    contravention    of   21   U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2 (the “drug possession count”); and

(3) use, carrying, and discharge of a firearm during and in

relation to the drug conspiracy, and possession and discharge of

the firearm in furtherance of the conspiracy, in violation of 18

U.S.C. § 924(c)(1) (the “firearm count”).                      Also charged in the

indictment were Linwood Kenny (“Kenny”), and Byron Tate, Darius

Tate,    and    Lamont   Tate     (individually,           “Byron,”   “Darius,”      and

                                           2
“Lamont,” and collectively, the “Tate brothers”).               Kenny and the

Tate brothers each entered into plea agreements with the Government

and testified against Brown at trial.

     Brown’s trial began on January 29, 2003.                 The prosecution

presented evidence of a drug conspiracy involving Brown, Kenny, the

Tate brothers, and others to distribute crack cocaine in the Reid

Park neighborhood of Charlotte, North Carolina, between mid-1997

and August 1999. Kenny and the Tate brothers were “weight dealers”

with close business and personal ties to each other, whereas Brown

was a “street dealer.”        Special Agent Rodney Blacknall of the

Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATF”), who

testified   for   the   prosecution   as   an   expert   in    narcotics   and

firearms, explained that weight dealers sell drugs in bulk to

street dealers, who then resell the drugs in smaller quantities to

addicts and other users “at the bottom of the line.”

     According to the trial testimony, Brown bought crack on a few

occasions from Byron and Darius, but more often obtained it from

Kenny, to “cut it up” and sell in smaller quantities on the street.

Kenny would sometimes “front” drugs to Brown, i.e., allow Brown to

take the drugs now and pay for them later.          BATF Agent Blacknall

testified that, in his experience, weight dealers “front” only to

street dealers whom they trust and have dealt with on numerous

occasions; based on that established relationship, the weight

dealer knows that the street dealer will sell the drugs and make a


                                      3
profit, and then will return to pay the debt and buy even more

drugs from the weight dealer.

       The trial evidence showed that the relationship between Brown

(on the one hand), and Kenny and the Tate brothers (on the other

hand), took a violent turn in August 1999, after Kenny sold Brown

a quantity of “bad dope” without refunding Brown’s payment for it.

Brown shot at Byron on August 17, 1999, while Byron was sitting in

a   car         in   his    grandmother’s   driveway    in   Charlotte.   Brown

acknowledged to a friend that a retaliatory shooting was likely,

but nonetheless attended a party the following night in the front

yard of the nearby home of his girlfriend, Tawania Mason.                 After

Brown’s friend expressed concern that those gathered for the party

were       in    danger,     Brown   responded   that   “[i]t’s   straight”   and

indicated that he was carrying a gun.             Sometime thereafter, Kenny,

Lamont, Darius, and a cohort arrived by car, and a shootout with

Brown ensued.              Several persons were wounded by the gunfire, and

Mason was killed.1

       After the prosecution presented its case-in-chief, Brown made

a motion for judgment of acquittal on the drug conspiracy and

firearm counts, which the district court denied.                The defense then




       1
      As part of their plea agreements, Kenny and Lamont pleaded
guilty to murdering Mason in the course of the drug conspiracy, and
each of them was sentenced to 30 years of imprisonment. Brown was
not charged for his participation in the shootout.

                                            4
rested without presenting any evidence.           On January 31, 2003, the

jury found Brown guilty on each of the three charges against him.

     The district court conducted a sentencing hearing on February

19, 2004, and entered its judgment on March 23, 2004.             The court

calculated Brown’s sentence in accordance with the then-mandatory

Sentencing Guidelines.         In determining Brown’s sentencing range,

the court grouped the drug conspiracy and drug possession counts

together.    See USSG § 3D1.2(d) (2002).          Brown was assigned a base

offense level of 36 for the grouped counts, because he was found

responsible for between 500 grams and 1.5 kilograms of crack.           See

id. § 2D1.1(c)(2).2     The court then applied the cross-reference for

murder,     and   the   base   offense    level    became   43.   See   id.

§ 2D1.1(d)(1) (directing court to utilize base offense level for

first-degree murder “[i]f a victim was killed under circumstances

that would constitute murder under 18 U.S.C. § 1111”); see also id.

§ 2A1.1 (providing for base offense level of 43 for first-degree

murder).3     With an offense level of 43, as well as a criminal


     2
      At the sentencing hearing, the court overruled Brown’s
objection to the drug quantity finding of 500 grams to 1.5
kilograms, observing that “[t]he drug quantity was found by the
jury and the court believes the evidence supported that.” However,
the jury specified only that the drug conspiracy and drug
possession counts together involved 55 grams or more of crack, as
charged in the indictment, thus qualifying Brown for an offense
level of 32. See USSG § 2D1.1(c)(4) (2002).
     3
      The court applied the murder enhancement to Brown because of
the killing of Mason (Brown’s girlfriend) during the shootout on
August 18, 1999. The prosecution had urged that enhancement on the
ground that, after shooting at Byron the previous day, Brown knew

                                      5
history category of II, the applicable sentence on the grouped drug

counts was life imprisonment.    The statutory maximum sentence on

the drug conspiracy count was life, see 21 U.S.C. § 841(b)(1)(A),

and on the drug possession count it was forty years, see id.

§ 841(b)(1)(B).   The court imposed concurrent sentences of life on

the drug conspiracy count and sixty months on the drug possession

count.4

     As for the firearm count, the Guidelines required the court to

impose the minimum term of imprisonment mandated by 18 U.S.C.

§ 924(c), which was a consecutive sentence of ten years.   See USSG

§ 2K2.4(b) (2002).   The prosecution moved for an upward departure

to life imprisonment on the firearm count, in the event that the

sentencing court declined to apply the murder enhancement on the

grouped drug counts.   See id. § 4A1.3 (permitting court to impose




that a retaliatory shooting was likely and had armed himself with
a loaded handgun in anticipation of it, yet he allowed Mason and
others to be targets anyway.       The court observed that Brown
“through his actions put in jeopardy the lives of others including
the deceased in a very foreseeable fashion.”        The court then
concluded that, because those circumstances supported a finding of
second-degree murder within 18 U.S.C. § 1111, the murder cross-
reference was applicable, relying on the Eighth Circuit’s decision
in United States v. Graham, 323 F.3d 603, 609-10 (8th Cir. 2003)
(affirming murder enhancement where coconspirator died in explosion
and fire at defendant’s methamphetamine laboratory, because
defendant had been aware of serious risk of death or serious bodily
injury associated with operation of laboratory).
     4
      Based only on the drug quantity found by the jury, and
without applying the murder enhancement predicated on facts found
by the judge, Brown’s applicable sentencing range would have been
135 to 168 months of imprisonment on the grouped drug counts.

                                 6
sentence departing from otherwise applicable Guidelines range “[i]f

reliable information indicates that the criminal history category

does not adequately reflect the seriousness of the defendant’s past

criminal conduct”).    Even though it applied the murder enhancement

on the grouped drug counts, the court also departed upward from the

Guidelines sentence on the firearm count (although not to life

imprisonment).5    The court imposed a sentence on the firearm count

of 134 months of imprisonment, to run consecutively to the prison

term on the grouped drug counts, resulting in a total term of life

plus 134 months.

     Brown filed a timely notice of appeal.       On June 7, 2004, he

filed his opening brief, contending that the district court erred

in denying his motion for judgment of acquittal on the drug

conspiracy and firearm counts, and in calculating his sentence

under the Sentencing Guidelines.       Shortly after the Supreme Court

issued its decision in Blakely v. Washington, on June 24, 2004,

Brown then filed a supplemental opening brief, challenging his

sentence on Sixth Amendment grounds.      See 124 S. Ct. 2531, 2537-38



     5
      In support of its motion for upward departure, the
prosecution presented evidence that, on August 12, 2000, following
the incidents at issue herein, Brown had shot Byron five times at
point-blank range while stating, “It ain’t over.” The sentencing
court concluded that Brown had attempted to murder Byron, and that
a state court conviction on such an offense would have yielded
Brown three additional criminal history points, elevating his
criminal history category from II to III. Accordingly, the court
added 14 months to the Guidelines sentence of 120 months (10 years)
on the firearm count.

                                   7
(2004)   (holding   that   sentence    imposed     under   Washington   State

sentencing scheme violated Sixth Amendment because it was enhanced

based on judge-found facts).      We address Brown’s contentions in

turn.

                                  II.

     Brown first contends that the district court erred in denying

his motion for judgment of acquittal on the drug conspiracy and

firearm counts.     We review de novo the denial of a motion for

judgment of acquittal. See United States v. Ryan-Webster, 353 F.3d

353, 359 (4th Cir. 2003).      We must sustain the jury verdict “‘if

there is substantial evidence, taking the view most favorable to

the Government, to support it.’”          United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996) (en banc) (quoting Glasser v. United

States, 315 U.S. 60, 80 (1942)).          We define “substantial evidence”

as “evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”          Id.   And we “remain cognizant of

the fact that the jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence presented.” Id. (internal quotation marks omitted). With

these principles in mind, and for the reasons that follow, we

affirm Brown’s convictions.

                                      A.




                                      8
      As for the drug conspiracy count, the prosecution was required

to prove that: “(1) an agreement to possess cocaine [base] with

intent to distribute existed between two or more persons; (2) the

defendant knew of the conspiracy; and (3) the defendant knowingly

and voluntarily became a part of this conspiracy.” Burgos, 94 F.3d

at   857.   Brown   concedes   proof   of   the   first   two   elements,

acknowledging that the evidence established that he, Kenny, and the

Tate brothers all distributed crack in the Reid Park neighborhood,

that he knew that Kenny and the Tate brothers were weight dealers

who “dealt together as a unit,” and that he was a frequent customer

of Kenny (who would sometimes “front” drugs to Brown) and an

occasional customer of Byron and Darius.

      However, Brown challenges the sufficiency of the evidence on

the third element of the conspiracy offense, contending that the

prosecution proved only a conspiracy between Kenny and the Tate

brothers, of which Brown was not a part.     Brown points to evidence

that Kenny and the Tate brothers grew up together, socialized

together, pooled resources to purchase drugs, shared profits from

their resale, and teamed together to retaliate against Brown for

shooting at Byron in August 1999.      According to Brown, he merely

engaged in a buyer-seller relationship with Kenny, which, under our

decision in United States v. Mills, does not equate Brown as a

“coconspirator” of Kenny and the Tate brothers.       See 995 F.2d 480,




                                  9
485 (4th Cir. 1993) (recognizing “that there may be instances where

one is merely a buyer or seller, but not a conspirator”).6

     We also recognized in Mills, however, that “evidence of a buy-

sell transaction is at least relevant . . . on the issue of whether

a conspiratorial relationship exists,” and that such evidence,

“when coupled with a substantial quantity of drugs, would support

a reasonable inference that the parties were coconspirators.”   995

F.2d at 485 n.1.     Here, the evidence established that Brown

purchased drugs from Kenny and, to a lesser extent, from Byron and

Darius, over a period of at least two years.   Kenny testified that,

during that time period, he sold Brown a total of approximately 504

to 560 grams of crack, which is a substantial quantity of drugs.

The conspiracy verdict is further supported by evidence that Brown

was “fronted” drugs by Kenny to sell on the street, as well as by

the expert testimony of BATF Agent Blacknall.   See Burgos, 94 F.3d

at 858 (observing that “[c]ircumstantial evidence tending to prove

a conspiracy may consist of a defendant’s relationship with other

members of the conspiracy, the length of this association, the

defendant’s attitude and conduct, and the nature of the conspiracy”

(internal quotation marks and alterations omitted)).       In these

circumstances, there was substantial evidence to establish that


     6
      Notably, the jury was instructed that evidence of a mere
buyer-seller relationship would be insufficient to convict Brown on
the drug conspiracy count, and that the prosecution was required to
prove the existence of the single conspiracy alleged in the
indictment, involving Brown, Kenny, and the Tate brothers.

                                10
Brown, Kenny, and the Tate brothers shared a common conspiratorial

purpose of profiting from supplying crack to users in the Reid Park

neighborhood.      See    id.   (recognizing     that    “contemporary    drug

conspiracies can contemplate only a loosely-knit association of

members linked only by their mutual interest in sustaining the

overall   enterprise     of   catering    to   the   ultimate   demands   of   a

particular drug consumption market” (internal quotation marks and

alterations omitted)).        It is of no significant consequence that

Brown’s contacts with Kenny and the Tate brothers were related

strictly to business, while Kenny and the Tate brothers were close

friends and associates.          One can be “a knowing and voluntary

participant in the drug conspiracy, even though he might have

operated at the perimeter.” United States v. Wilson, 135 F.3d 291,

306-07 (4th Cir. 1998).

     In summary, upon reviewing the evidence in the light most

favorable to the prosecution, a reasonable trier of fact could have

found Brown guilty on the drug conspiracy count.            See Glasser, 315

U.S. at 80.    Therefore, the district court properly denied Brown’s

motion for judgment of acquittal, and we affirm his conviction on

that charge.

                                     B.

     The factual predicate for the firearm count was Brown’s

shooting at Byron on August 17, 1999, after Kenny sold Brown “bad

dope.”    The district court instructed the jury that, in order to


                                     11
convict Brown on the firearm count, it had to find that either:

(1) Brown “knowingly used or carried a firearm . . . during and in

relation to” the charged drug conspiracy; or (2) he knowingly

“possessed a firearm in furtherance of” the conspiracy.7            The jury

also was instructed to answer whether Brown discharged the firearm

in connection with this offense.

       Rather than challenging these instructions on appeal, Brown

contends that the district court erred in denying his motion for

judgment of acquittal on the firearm count.            Brown maintains that

his conviction on this charge cannot be sustained under 18 U.S.C.

§ 924(c)(1) absent proof that his use or carrying of a firearm

“facilitate[d]” the charged drug conspiracy, United States v.

Patterson, 348 F.3d 218, 226 (7th Cir. 2003) (defining “in relation

to”), or that his possession of a firearm “furthered, advanced, or

helped forward” the conspiracy, United States v. Lomax, 293 F.3d

701,       705   (4th   Cir.   2002)   (discussing   “in   furtherance   of”).

According to Brown, the evidence supports only the conclusion that

his shooting at Byron on August 17, 1999, hindered — rather than

facilitated or furthered — the conspiracy between Brown, Kenny,

and the Tate brothers.          That is, in shooting at Byron, “Brown made

a unilateral decision to violently go after his other conspirators,



       7
      In instructing the jury, the court defined “in furtherance
of,” but did not define “during and in relation to.” Brown did not
object to these instructions in the district court, and he does not
challenge them on appeal.

                                         12
an act which could only hinder the conspiracy, not further its

goals.”   (Appellant’s Br. at 22).

     Even accepting Brown’s framing of this issue as a challenge to

the sufficiency of the evidence (rather than the substance of the

instructions), his contention lacks merit.            As the prosecution

maintains, the jury was entitled to find that Brown shot at Byron

to send a message to Kenny that he would not accept “bad dope.”            As

a result, viewed in the light most favorable to the prosecution,

the evidence supports the inference that Brown shot at Byron as

“one way to ensure he received good quality crack in the future,”

and thus to facilitate or further the conspiracy.          (Appellee’s Br.

at 21); see also Glasser, 315 U.S. at 80.         The district court thus

properly denied Brown’s motion for judgment of acquittal on the

firearm count, and we affirm his conviction on that charge.


                                   III.

     Finally, Brown challenges his sentence on various grounds. As

explained   below,   we   agree   that    his   sentence   was   imposed   in

violation of the Sixth Amendment.         See Booker, 125 S. Ct. at 746

(concluding that Sixth Amendment as construed in Blakely applies to

Sentencing Guidelines).      Accordingly, we vacate Brown’s sentence

and remand this matter for resentencing, without addressing Brown’s

other contentions of sentencing error.8


     8
      In his other sentencing contentions, Brown asserts that the
court erred in: (1) applying the murder enhancement on the grouped

                                    13
     Because Brown raised his Sixth Amendment contention for the

first time on appeal, it is subject to review for plain error only.

See United States v. Hughes, No. 03-4172, 2005 WL 628224, at *5

(4th Cir. Mar. 16, 2005).    As set forth in United States v. Olano,

the plain error mandate is satisfied if:     (1) there was error; (2)

it was plain; and (3) it affected the defendant’s substantial

rights.   507 U.S. 725, 732 (1993).    If these conditions are met, we

may then exercise our discretion to notice the error, but only if

it “seriously affects the fairness, integrity or public reputation

of judicial proceedings.”       Id. (internal quotation marks and

alteration omitted).    The Olano conditions are satisfied here.

     First, the prison term imposed on Brown constituted error

under Booker.    See 125 S. Ct. at 755-56 (holding Sixth Amendment

contravened when sentencing court, acting pursuant to Guidelines,

imposes sentence greater than maximum authorized by facts found by

jury alone).    Under the then-mandatory Guidelines regime, the jury

verdict supported an offense level of 32 on the grouped drug

counts, resulting in a sentencing range of 135 to 168 months.

However, the court’s application of the murder cross-reference —


drug counts, in that, inter alia, the killing of Mason by Brown’s
coconspirators was not “relevant conduct” for which Brown can be
held responsible under the Guidelines, see USSG § 1B1.3(a) (2002);
(2) imposing the upward departure on the firearm count, even though
the prosecution requested such departure only in the event that the
court declined to apply the murder enhancement; and (3) justifying
its drug quantity finding of 500 grams to 1.5 kilograms as the
finding of the jury, which specified only that Brown’s offenses
involved 55 grams or more of crack.

                                  14
predicated on facts related to Mason’s murder that were not found

by the jury — increased Brown’s offense level to 43 and required

a life sentence.     Pursuant to Booker, the court erred in relying on

its own fact-finding to impose a sentence on the grouped drug

counts of more than 168 months.          See Hughes, 2005 WL 628224, at *5

(recognizing that imposition of sentence, “in part based on facts

found by the judge, . . . constituted error”).9

      Second,    although      Brown’s   Sixth    Amendment    contention    was

foreclosed by our precedent at the time of his sentencing, Booker

has since “abrogated our previously settled law,” rendering the

error plain.     Hughes, 2005 WL 628224, at *5.          And third, the error

was prejudicial, in that Brown’s life sentence on the grouped drug

counts was greater than the 168-month maximum authorized by the

facts found by the jury alone.           See id. at *5-6.

      Finally, to affirm Brown’s sentence despite the error would

seriously affect the fairness, integrity, or public reputation of

these judicial proceedings.        In the wake of Booker, the Guidelines

are   to   be   treated   as    advisory      (rather   than   mandatory),   and

sentences that fall within the statutorily prescribed range are

reviewable only for reasonableness.            Hughes, 2005 WL 628224, at *3

(citing Booker, 125 S. Ct. at 765-68).             The record before us does


      9
      Because the application of the murder enhancement on the
grouped drug counts constituted Sixth Amendment error, we must
vacate Brown’s entire sentence. Therefore, we need not reach the
issue of whether, as Brown contends, the imposition of the upward
departure on the firearm count constituted similar error.

                                         15
not indicate what sentence the court would have imposed on Brown

had it exercised its discretion under 18 U.S.C. § 3553(a) and

treated the Guidelines as merely advisory; although it is possible

that Brown will receive the same sentence on remand, “[t]his

possibility is not enough to dissuade us from noticing the error.”

Id. at *13.   We therefore vacate Brown’s sentence, and remand for

resentencing consistent with Booker and its progeny.


                                IV.

     Pursuant to the foregoing, we affirm Brown’s convictions,

vacate his sentence, and remand for resentencing.

                                AFFIRMED IN PART, VACATED IN PART,
                                                      AND REMANDED




                                16
