UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4658

JEVAN ANDERSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Terrence W. Boyle, Chief District Judge.
(CR-97-34-BO-1)

Argued: April 6, 2000

Decided: May 15, 2000

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________

COUNSEL

ARGUED: Douglas Everette Kingsbery, THARRINGTON SMITH,
L.L.P., Raleigh, North Carolina, for Appellant. John Howarth Ben-
nett, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: F. Hill Allen, THARRINGTON SMITH,
L.L.P., Raleigh, North Carolina, for Appellant. Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jevan Anderson was convicted under 21 U.S.C. § 846 for conspir-
acy to distribute or possess with intent to distribute crack cocaine. On
appeal, Anderson contends that the government presented insufficient
evidence to support his conviction. Finding no merit to this conten-
tion, we affirm. Anderson also challenges his sentencing on a number
of grounds. For the reasons set forth below, we affirm his sentence
in part and vacate in part. We remand for resentencing under the
applicable sentencing guidelines.

I.

In 1997, the Drug Enforcement Administration Mobile Enforce-
ment Team conducted an investigation in Kinston, North Carolina.
Jevan Anderson was one of the targets of this investigation. In
November 1997, Anderson was arrested and charged under 21 U.S.C.
§ 846 for conspiracy to distribute or possess with intent to distribute
crack cocaine. Trial commenced on August 24, 1998.

Government cooperating witnesses Kenya Jackson, Odell Caracter,
and Carlos Ramos all testified to selling substantial amounts of crack
cocaine to Anderson on multiple occasions. Jackson and Caracter also
spoke of the close relations between Anderson and Sheridon Outlaw
with respect to the drug trade. A paid government informant likewise
testified. He recalled purchasing crack cocaine from Anderson on two
separate occasions. Another of the government's witnesses, Shontelle
Poole, also testified to making two crack cocaine purchases from
Anderson. In addition, Poole stated that Anderson sold crack cocaine
"every day."

DEA Special Agent Eric Kolbinsky then testified about the DEA
searches of the house where Anderson sold drugs and the house

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where Anderson resided. While the DEA agents found no drugs, they
did find a set of electronic scales. Kolbinsky testified that such
devices are commonly used for weighing drugs. In Anderson's bed-
room, the DEA discovered $11,825 in cash. Some of the currency was
bundled in $1000 amounts. Kolbinsky testified that such bundling is
very common in the narcotics trade. Anderson offered no evidence
and filed a motion to dismiss. The district court denied his motion.
The jury then found Anderson guilty on the single conspiracy count.

On January 13, 1999, the district court held Anderson's sentencing
hearing. The court found that Anderson was responsible for over
1,176 grams of crack cocaine plus a specified amount of powder
cocaine which yielded a base offense level of 36. When combined
with Anderson's criminal history category of IV, a guidelines sen-
tencing range of 262 to 327 months resulted.

The court then addressed the government's request to enhance
Anderson's sentence to a mandatory term of life imprisonment pursu-
ant to 21 U.S.C. § 841(b)(1)(A). The court concluded that Anderson
had been convicted of two prior drug felonies, as required by
§ 841(b)(1)(A). As a result, the court sentenced Anderson to life in
prison. Anderson now appeals both his conviction and sentencing. We
address his claims in turn.

II.

Anderson argues that the evidence submitted by the government at
trial was insufficient to support his conviction under § 846. Anderson
specifically claims that the government did not prove that he was con-
spiring with others in furtherance of his drug trade. See United States
v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc) ("[I]n addition
to proving the existence of a conspiracy beyond a reasonable doubt,
the Government must also prove a defendant's connection to the con-
spiracy beyond a reasonable doubt.").

We disagree. "When assessing the sufficiency of the evidence of
a criminal conviction on direct review, `[t]he verdict of [the] jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.'" United States v.
Mitchell, No. 99-4008, 2000 WL 309298, at *5 (4th Cir. Mar. 27,

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2000) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)).
Viewing the evidence in the light most favorable to the government,
we conclude that there is substantial evidence that Anderson con-
spired with others to distribute crack cocaine.

Kenya Jackson and Odell Caracter both testified that Anderson
acted in concert with Sheridon Outlaw. Jackson testified that the two
men were frequently seen together and that Jackson jointly sold them
drugs. Furthermore, Jackson described Outlaw as a"partner" of
Anderson's. And Caracter recalled that Anderson and Outlaw were
always together when he sold drugs to Outlaw.

Kenya Jackson also testified that on three occasions he sold Ander-
son a total of 482 grams of crack cocaine. See United States v. Mills,
995 F.2d 480, 485 n.1 (4th Cir. 1993) ("[W]e believe evidence of a
buy-sell transaction, when coupled with a substantial quantity of
drugs, would support a reasonable inference that the parties were
coconspirators."). Odell Caracter and Carlos Ramos testified that they
met Anderson through Jackson. Caracter sold Anderson over 510
grams of crack cocaine, and Ramos sold Anderson over 170 grams.
The government's evidence also showed that Anderson used the ser-
vices of Shontelle Poole in furtherance of his drug business. For
example, Poole took Anderson to the Washington, D.C., area to pur-
chase drugs. For her services, Poole was compensated with crack
cocaine. The testimony of all of these witnesses provides substantial
evidence that Anderson did in fact conspire with others to distribute
crack cocaine.

III.

A.

With respect to sentencing, Anderson first contends that the district
court clearly erred in calculating the amount of drugs attributable to
him in determining his base offense level under the guidelines.
Anderson initially asserts that the government did not adequately
prove that the drugs referenced in Anderson's presentence report were
part of the § 846 conspiracy. The government bears the burden of
proving that drugs are attributable to a defendant by a preponderance
of the evidence, see United States v. Lamarr, 75 F.3d 964, 972 (4th

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Cir. 1996), and evidence introduced at trial can be used to satisfy this
burden, see United States v. Williams, 986 F.2d 86, 90-91 (4th Cir.
1993). The government introduced evidence at trial showing that
Jackson, Caracter, and Ramos all sold substantial amounts of crack
cocaine to Anderson -- an amount totaling over 1,162 grams. The
government's evidence also showed that Jackson introduced Ander-
son to both Caracter and Ramos. Based on this evidence, we cannot
conclude that the district court clearly erred by concluding that these
amounts of drugs were connected to a single conspiracy.

Anderson also contends that the district court clearly erred in attri-
buting to him the 1,000 grams of the so-called "fish scale" cocaine.
The error, if any, is clearly harmless. As Anderson concedes, the dis-
trict court did not count the "fish scale" cocaine as crack cocaine, but
rather as powder cocaine. Thus, the district court's crack cocaine total
of 1,176.525 grams is unaffected. This quantity of crack cocaine is
more than enough for base offense level 36 to apply to Anderson. See
U.S. Sentencing Guidelines Manual § 2D1.1(c)(2)(1998) (Level 36
applies to offenses involving at least 500 grams but less than 1,500
grams of crack cocaine.).

B.

Anderson next contends that the district court erred by applying the
21 U.S.C. § 841(b)(1)(A) life imprisonment sentencing enhancement
to him. Section 841(b)(1)(A) provides, "If any person commits a vio-
lation of this subparagraph or of section 849, 859, 860, or 861 of this
title after two or more prior convictions for a felony drug offense have
become final, such person shall be sentenced to a mandatory term of
life imprisonment without release . . . ."

Anderson initially contends that because § 841(b)(1)(A) does not
explicitly refer to § 846, this enhancement cannot apply to his § 846
conviction. While Anderson is correct in noting that§ 841(b)(1)(A)
does not explicitly list § 846, § 846 itself states, "Any person who
attempts or conspires to commit any offense defined in this subchap-
ter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy." (emphasis added). In this case, the object of Anderson's
conspiracy was violating § 841, which makes it illegal to distribute

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crack cocaine. Because § 846 adopts the § 841 penalty structure in
full, the § 841(b)(1)(A) life imprisonment enhancement can be
applied to Anderson's § 846 conviction.

Anderson contends, however, that one of the two prior felony drug
convictions relied on by the government cannot count as a predicate
offense under § 841(b)(1)(A). See 21 U.S.C. § 851(c). He argues that
his 1996 North Carolina felony drug conviction was obtained in viola-
tion of the Constitution's prohibition against double jeopardy. Ander-
son notes that prior to his North Carolina conviction, the state
assessed and collected a portion of its drug tax against him with
respect to the very drugs at issue in his conviction-- a fact the gov-
ernment has not disputed. See N.C. Gen. Stat. §§ 105-113.105 to 105-
113.113 (1999). Anderson then notes that this circuit has held North
Carolina's drug tax to constitute a criminal penalty for purposes of the
Double Jeopardy Clause. See Lynn v. West, 134 F.3d 582, 588-93 (4th
Cir.), cert. denied, 119 S. Ct. 47 (1998). As a result of the drug tax
being a criminal penalty, Anderson argues, his subsequent state con-
viction violated the Double Jeopardy Clause.

The government argues that Anderson waived this claim. While we
agree with the government that a double jeopardy claim can, at least
in some circumstances, be waived, see United States v. Broce, 488
U.S. 563 (1989), we cannot conclude that there has been a waiver in
this case. Anderson cannot be said to have waived his double jeop-
ardy claim as it simply would have been futile for Anderson to have
raised this claim in state court. Prior to Anderson's conviction on the
drug charge, North Carolina courts had determined that the North
Carolina drug tax was not a criminal penalty for purposes of the Dou-
ble Jeopardy Clause. See State v. Ballenger, 472 S.E.2d 572, 572-75
(N.C. Ct. App. 1996), aff'd per curiam, 481 S.E.2d 84, cert. denied,
522 U.S. 817 (1997); State v. Creason, 473 S.E.2d 771, 772 (N.C. Ct.
App. 1996), aff'd per curiam, 484 S.E.2d 525 (1997). A subsequent
North Carolina case even pointed out that state courts were not bound
by the Fourth Circuit Lynn v. West decision, but rather were bound
by the state court pronouncements on the matter. See State v. Adams,
513 S.E.2d 588, 589 (N.C. Ct. App. 1999).

In this forum, to say the least, Lynn v. West is binding. And pursu-
ant to Lynn v. West, Anderson's subsequent North Carolina drug con-

                    6
viction constituted double jeopardy. As a result, the conviction cannot
be used as a predicate offense under § 841(b)(1)(A). We thus vacate
Anderson's sentence and remand for resentencing under the applica-
ble sentencing guidelines.

IV.

For the foregoing reasons, we affirm Anderson's conviction and
affirm his sentence in part and vacate in part. We remand for resen-
tencing under the applicable sentencing guidelines.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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