                                                               F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                AUG 8 2002
                 UNITED STATES COURT OF APPEALS
                                                           PATRICK FISHER
                                                                     Clerk
                              TENTH CIRCUIT




UNITED STATES OF AMERICA,

     Plaintiff - Appellee,
                                               No. 00-5235
v.                                        (D.C. No. 99-CR-33-C)
                                         (N. District of Oklahoma)
KERMIT OTIS WILLIAMS,

     Defendant - Appellant,


UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                             No. 00-5236
                                          (D.C. No. 99-CR-33-C)
LAMONT WILLIAMS,                         (N. District of Oklahoma)

     Defendant - Appellant,



UNITED STATES OF AMERICA,

     Plaintiff - Appellee,
v.                                             No. 00-5141
                                          (D.C. No. 99-CR-33-C)
CHARLES CALHOUN,                         (N. District of Oklahoma)

     Defendant - Appellant,
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 00-5242
 v.
                                                  (D.C. No. 99-CR-33-C)
                                                 (N. District of Oklahoma)
 DRICK EUGENE WILLIAMS,

          Defendant - Appellant,


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 00-5244
                                                  (D.C. No. 99-CR-33-C)
 v.
                                                 (N. District of Oklahoma)
 STEPHEN THOMAS,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, PORFILIO, and BRORBY, Senior Circuit
Judges.




      *
         Charles Calhoun’s case (number 00-5141) is unanimously ordered
submitted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th
Cir. R. 34.1(G). Oral argument was heard in the cases of Kermit Otis Williams
(number 00-5235), Lamont Williams (number 00-5236), Drick Eugene Williams
(number 00-5242), and Stephen Thomas (number 00-5244).
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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      Defendants Kermit Otis Williams, Lamont Williams, Drick Eugene

Williams, Stephen Thomas, and Charles Calhoun appeal their convictions for

conspiracy to possess, with intent to distribute, cocaine and cocaine base in

violation of 21 U.S.C. § 846. Calhoun also appeals his conviction for possession

of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c). These cases involve similar facts, and defendants raise many of the

same arguments on appeal. Thus, we consolidate the cases for the purposes of

oral argument and decision. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291, and we remand in part and affirm in part.

                                          I

      Because the parties are familiar with the facts, or at least their respective

versions, we need not set them forth here. Defendants raise a total of thirteen

issues on appeal. All defendants claim that the district court erred in refusing to

grant defendants’ requested jury instruction defining the elements of conspiracy;

that the district court should have granted defendants a mistrial after the

admission of allegedly inflammatory hearsay testimony; and that the district court

erred in allowing a conviction for a single conspiracy to stand because more than

one conspiracy was proven at trial. Drick Williams, Lamont Williams, and

Calhoun argue that there was insufficient evidence to establish the type and

quantity of drugs, and that the district court committed error under Apprendi v.


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New Jersey, 530 U.S. 466 (2000), in not submitting the type and quantity of drugs

to the jury for determination. Calhoun and Lamont Williams claim that the

conversion of cocaine to crack was contrary to the law and evidence. Drick

Williams, Thomas, and Calhoun contend that the prosecutor engaged in

prosecutorial misconduct, which denied defendants a fair trial, when he elicited

witness testimony regarding Calhoun’s violent past. Drick Williams asserts that

the district court erred in admitting evidence of his 1994 arrest for cocaine

possession as proof of an overt act for the charged conspiracy, and that there was

insufficient evidence establishing interdependence between Drick and his co-

defendants to convict him of conspiracy. Thomas contends that the district court

erred in admitting his 1991 statement to an Arizona police officer without

determining the voluntariness of the statement, that the district court erred in

admitting evidence of other crimes and not granting a requested limiting

instruction, and that the district court erred in denying his motion to suppress

evidence seized with a search warrant that was based on a flawed affidavit.

Finally, Drick Williams and Thomas allege that there is cumulative error

warranting reversal of their convictions.

                                            II

      We review the district court’s application of the sentencing guidelines de

novo, United States v. Wagner, 994 F.2d 1467, 1470 (10th Cir. 1993), and review


                                            -4-
its factual findings for clear error, United States v. Easterling, 921 F.2d 1073,

1077 (10th Cir. 1990).

                                          A

      Calhoun was sentenced to 360 months’ imprisonment for conspiracy to

possess, with intent to distribute, cocaine and cocaine base in violation of 21

U.S.C. § 846. He contends that because the issue of drug quantity was never

submitted to the jury and the maximum sentence without this finding was 240

months, his sentence suffers from Apprendi error.

      Even though Calhoun did not raise this objection at trial or during

sentencing, the government tells us that, “[i]n light of the sentencing court’s

eventual application of Apprendi to the co-defendant’s sentence, fairness and

equity would seem to dictate a likewise treatment of Calhoun.” (Appellee’s Br. at

48.) Counsel for the government reiterated this sentiment at oral argument.

Given the government’s position and the stated purpose of the sentencing

guidelines to eliminate disparate sentencing, U.S.S.G. ch. 1, pt. A, § 3, we remand

the issue of Calhoun’s sentence so that the trial court may consider the

government’s appellate position.

                                          B

      Lamont Williams was sentenced to twenty years’ imprisonment based on

the adoption by the district court of the factual findings and guidelines application


                                          -5-
set forth in the October 24, 2000 presentence investigation report (“PSR”). That

PSR stated:

      Over the life of the conspiracy [Lamont] Williams caused the
      procurement, transportation, and processing of at least 269.75 grams
      of cocaine base and approximately 3,000 grams of cocaine. The
      object of the conspiracy was to distribute crack cocaine; therefore,
      for sentencing purposes, amounts of powder cocaine are converted to
      amounts of crack cocaine. [Lamont] Williams is responsible for
      3,269.75 grams, or 3.270 kilograms, of crack cocaine.

(2(B) R. at 9.) This drug quantity resulted in a base offense level of thirty-eight.

(2(B) R. at 10.) Taking into account other adjustments and Lamont Williams’s

criminal history category of I, the relevant sentencing range was 360 months to

life. Due to the district court’s concern that a sentence within this range would

run afoul of Apprendi, the court sentenced Lamont Williams to the statutory

maximum of 240 months.

      Lamont Williams objected to the arithmetic utilized below, and on appeal

again disputes the district court’s application of the sentencing guidelines in

calculating the quantity of cocaine base attributable to him.

      “Under the guidelines, it is proper to sentence a defendant under the drug

quantity table for cocaine base if the record indicates that the defendant intended

to transform powdered cocaine into cocaine base.” United States v. Angulo-

Lopez, 7 F.3d 1506, 1511 (10th Cir. 1993), supercession on other grounds

recognized by United States v. Kissick, 69 F.3d 1048, 1053 (10th Cir. 1995). The


                                          -6-
application notes further provide, “Where there are multiple transactions of

multiple drug types, the quantities of drugs are to be added. Tables for making

the necessary conversions are provided below.” U.S.S.G. § 2D1.1, cmt. n.6.

Utilizing the tables, one gram of cocaine is equivalent to 200 grams of marihuana,

and one gram of cocaine base is equivalent to 20,000 grams of marihuana.

      The district court erred in adopting the PSR’s calculation, which did not

convert the amount of cocaine to its cocaine-base equivalent before adding the

quantities. Under the guidelines, 3000 grams of cocaine is equivalent to 600,000

grams of marijuana, which, in turn, is equivalent to 30 grams of cocaine base.

Added to the other 269.75 grams of cocaine base attributable to Lamont Williams,

the total relevant drug quantity is 299.75 grams, not 3,269 grams as the district

court held. This quantity produces a base offense level of 34 and, when combined

with other adjustments and Lamont Williams’s criminal history category of I,

leads to a sentencing range of 235 to 293 months. See U.S.S.G. Ch. 5 Pt. A.

      Not knowing that he was eligible for a lesser sentence, the district court

sentenced Lamont Williams to serve 240 months’ imprisonment. We cannot

conclude that its error was harmless, and we therefore vacate Lamont Williams's

sentence and remand his case for further proceedings consistent with this order

and judgment.




                                         -7-
                                       III

      Having heard oral argument and having carefully considered the record, the

briefs, and applicable law, we conclude the remaining issues are not meritorious.

We therefore AFFIRM the convictions of Calhoun and Lamont Williams and the

convictions and sentences for Kermit Williams, Drick Williams, and Thomas. We

REMAND Calhoun’s sentence for reconsideration and VACATE and REMAND

Lamont Williams’s sentence.



                                      ENTERED FOR THE COURT



                                      PER CURIAM




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