                                                FILED:   April 3, 2008


                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT

                            No. 03-4389
                            (CR-02-548)



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JOHNNY FRANK DAVIS,

                                                Defendant - Appellant.



                            No. 03-4406



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DEMETRIUS MONQUITE GREEN, a/k/a Meech,

                                                Defendant - Appellant.



                            No. 04-4095



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,
          versus
ANTONIO OWENS, a/k/a Tonio,

                                            Defendant - Appellant.



                              No. 04-4137



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


TANESHA BANNISTER,

                                            Defendant - Appellant.




                              No. 04-4164



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


DONALD EDWARD BYRD,

                                            Defendant - Appellant.



                              No. 04-4176



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

                                   2
          versus


FURMAN BENJAMIN QUATTLEBAUM,

                                             Defendant - Appellant.




                               No. 04-4185



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHNNY WILLIAM COOPER, JR., a/k/a Buck,


                                             Defendant - Appellant.




                               No. 04-4205



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CHRISTOPHER TOBY HAYES,

                                             Defendant - Appellant.




                                    3
                            No. 04-4206



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


DARREN WHITE, a/k/a Doctor, a/k/a Coolie,

                                            Defendant - Appellant.




                            No. 04-4238



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


MARQUEL DUSHUAN RILEY, a/k/a Mark Riley,

                                            Defendant - Appellant.




                            No. 04-4239



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,



                                 4
          versus

ANTHONY KEITH WILSON,

                                          Defendant - Appellant.




                            No. 04-4264



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


DAVID KEITH MILES,

                                          Defendant - Appellant.




                            No. 04-4335



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus

JOSEPH TROY MCCONNELL,

                                          Defendant - Appellant.




                                 5
                            No. 04-4404



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


ARMAND A. HAMMOND,

                                          Defendant - Appellant.




                            No. 04-4440



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


WILLIAM EDWARDS,

                                          Defendant - Appellant.




                                 6
                            O R D E R



    The court amends its opinion filed March 17, 2008, as follows:

    On Page 40, section 4., the fourth sentence, the words "50

kilograms of cocaine" should be corrected to read "5 kilograms of

cocaine."



                             For the Court - By Direction

                                /s/ Patricia S. Connor

                                         Clerk




                                7
                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4389



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHNNY FRANK DAVIS,

                                            Defendant - Appellant.



                            No. 03-4406



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DEMETRIUS MONQUITE GREEN, a/k/a Meech,

                                            Defendant - Appellant.



                            No. 04-4095



UNITED STATES OF AMERICA,

                                            Plaintiff -   Appellee,

          versus
ANTONIO OWENS, a/k/a Tonio,

                                            Defendant - Appellant.



                              No. 04-4137



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


TANESHA BANNISTER,

                                            Defendant - Appellant.



                              No. 04-4164



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


DONALD EDWARD BYRD,

                                            Defendant - Appellant.



                              No. 04-4176



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

                                   2
          versus


FURMAN BENJAMIN QUATTLEBAUM,

                                          Defendant - Appellant.



                            No. 04-4185



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


JOHNNY WILLIAM COOPER, JR., a/k/a Buck,

                                          Defendant - Appellant.



                            No. 04-4205



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


CHRISTOPHER TOBY HAYES,

                                          Defendant - Appellant.




                                 3
                            No. 04-4206



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


DARREN WHITE, a/k/a Doctor, a/k/a Coolie,

                                            Defendant - Appellant.



                            No. 04-4238



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

          versus


MARQUEL DUSHUAN RILEY, a/k/a Mark Riley,

                                            Defendant - Appellant.



                            No. 04-4239



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,




                                 4
          versus


ANTHONY KEITH WILSON,

                                          Defendant - Appellant.



                            No. 04-4264



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


DAVID KEITH MILES,

                                          Defendant - Appellant.



                            No. 04-4335



UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,

          versus


JOSEPH TROY MCCONNELL,

                                          Defendant - Appellant.




                                 5
                             No. 04-4404



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ARMAND A. HAMMOND,

                                             Defendant - Appellant.



                             No. 04-4440



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


WILLIAM EDWARDS,

                                             Defendant - Appellant.



Appeals from the United States District Court for the District of
South Carolina, at Columbia.    Cameron McGowan Currie, District
Judge. (CR-02-548)


Argued:   December 6, 2007                 Decided:   March 17, 2008


Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.


                                  6
Affirmed in part, vacated and remanded in part, and judgment
withheld in part by unpublished opinion. Judge Duncan wrote the
opinion, in which Chief Judge Williams and Judge Bailey joined.
Judge Bailey wrote a separate concurring opinion.


ARGUED: Marcia Gail Shein, Decatur, Georgia; James Harold Babb,
HOWLE & BABB, L.L.P., Sumter, South Carolina; Mary Jude Darrow,
Raleigh, North Carolina; James B. Craven, III, Durham, North
Carolina, for Appellants. Mark C. Moore, Assistant United States
Attorney, Jane Barrett Taylor, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Michael A. Grace, GRACE, HOLTON, TISDALE &
CLIFTON, Winston-Salem, North Carolina, for Appellant Johnny Frank
Davis; Matthew Anthony Victor, VICTOR, VICTOR & HELGOE, L.L.P.,
Charleston, West Virginia, for Appellant Donald Edward Byrd;
Jeffrey M. Brandt, ROBINSON & BRANDT, Cincinnati, Ohio, for
Appellant Antonio Owens; Marc Seguinot, McLean, Virginia, for
Appellant Christopher Toby Hayes; Cecelia Robinson, Columbia, South
Carolina, for Appellant Johnny W. Cooper, Jr.; Anthony O’Neil Dore,
Beaufort, South Carolina, for Appellant Demetrius Monquite Green;
John McIver Ervin, III, Darlington, South Carolina, for Appellant
Furman Benjamin Quattlebaum; James Edward Holler, HOLLER, DENNIS,
CORBETT, GARNER & ORMOND, Columbia, South Carolina, for Appellant
Darren White; Michael W. Chesser, Aiken, South Carolina, for
Appellant Anthony Keith Wilson; Jeffrey Falkner Wilkes, CRAVEN &
WILKES, Greenville, South Carolina, for Appellant Tanesha
Bannister; C. Rauch Wise, Greenwood, South Carolina, for Appellant
David Keith Miles; Lourie A. Salley, III, Lexington, South
Carolina, for Appellant Marquel Dushuan Riley; Leland Bland
Greeley, Rock Hill, South Carolina, for Appellant James Hampton
Williams, II. Reginald I. Lloyd, United States Attorney, Robert
Daley, Jr., Assistant United States Attorney, J. D. Rowell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                7
DUNCAN, Circuit Judge:

       Johnny    Frank    Davis      (“Davis”)   and     fourteen      others

(collectively,“Appellants”) appeal their convictions and sentences

for conspiracy to possess with intent to distribute 5 kilograms or

more of (powder) cocaine and 50 grams or more of cocaine base

(commonly known as “crack cocaine”), in violation of 21 U.S.C.

§§ 841(a), 846.       Appellants challenge their convictions, arguing

that   there    was   insufficient    evidence   to    support   the   jury’s

verdicts, and that the verdicts were tainted by the complexity that

resulted from the district court’s denial of certain Appellants’

motions for severance and by improper prosecutorial vouching.

Appellants also seek resentencing in light of United States v.

Booker, 543 U.S. 220 (2005), and, in addition, resentencing because

the trial court committed error by declining to instruct the jury

to find the amounts of drugs individually attributable to each

defendant, in violation of United States v. Collins, 415 F.3d 304

(4th Cir. 2005).      We find no infirmity in Appellants’ convictions,

but vacate the sentences and remand for resentencing in light of

Booker for all Appellants except Johnny Frank Davis and William

Edwards. For William Edwards, we find reversible Collins error and

remand.




                                       8
                                    I.

     This appeal centers on a large-scale, ten-year conspiracy to

distribute cocaine in the southeastern United States. The regional

kingpin, John Williams, procured large quantities of cocaine from

international suppliers.       He then utilized a number of so-called

“lieutenants” to coordinate further distribution, often through the

use of middlemen or mules, to local drug dealers in Georgia and

South Carolina.      Such lieutenants included, at different times,

Appellants David Miles and, as part of a business partnership with

another defendant, Demetrius Green.         The hierarchy was loosely

organized, however; conspiracy members would often buy and sell

cocaine amongst themselves depending on their vacillating supplies

and demands.

     Investigators     from   the   Richland      County,   South   Carolina

Sheriff’s   Office   first    infiltrated   the    conspiracy    when   their

undercover agent (“UCA”) met conspirator Jonathan Stroman for the

purpose of obtaining significant quantities of cocaine in the

summer of 2001.       Stroman arranged for the UCA to meet John

Williams’s nephew, Corey Williams, who was serving as one of John

Williams’s downstream distributors at the time.             The UCA effected

a series of controlled purchases, each of one-half to one kilogram

of cocaine, from Corey Williams. The investigators then sought and

obtained orders authorizing the interception of communications




                                     9
occurring over Corey Williams’s cell phones (the “wiretap”).                  The

wiretap ultimately recorded drug-related conversations with each

Appellant, save Johnny Frank Davis, Johnny Cooper, and Anthony

Wilson.

      After several months of monitoring, the investigators learned

from wiretap intercepts that Corey Williams was planning to meet

his brother1 in Atlanta to procure 3 kilograms of cocaine.                  Corey

Williams delivered $60,000 to his brother and arranged for future

delivery of the cocaine.            On Corey Williams’s way back to South

Carolina, police apprehended him and transported him to an FBI

office to discuss his possible cooperation with authorities in the

ongoing investigation of the conspiracy.                 Corey Williams agreed,

and   proceeded       to   record    via      wire   a   number   of    in-person

conversations with certain coconspirators, including Appellants

William Edwards, Johnny Frank Davis, Johnny Cooper, and Christopher

Hayes.    As    the    evidence     of   the    conspiracy    accumulated,     the

investigators     began    making     arrests.       Ultimately,       forty-three

defendants were charged in the Third Superseding Indictment (the

“Indictment”) with conspiracy to possess with intent to distribute

5 kilograms or more of (powder) cocaine and 50 grams or more of

cocaine base (commonly known as “crack cocaine”), in violation of



      1
      This brother, James Williams, was tried and convicted along
with Appellants, but his appeal was deconsolidated from the others
and heard separately by this court. See United States v. Williams,
227 Fed. Appx. 307 (4th Cir. 2007).

                                         10
21 U.S.C. §§ 841(a), 846, eighteen of which, including all fifteen

Appellants, went to trial.

      Shortly before trial, Corey Williams, who was slated to

testify against many of his coconspirators, was murdered.               The

government was able to proceed, however, on the strength of the

wiretap and wire recordings, and the testimony of other cooperating

witnesses.     In particular, the government introduced extensive

testimony at trial from kingpin John Williams himself.                 John

Williams testified that he began dealing drugs in 1993 in Athens,

Georgia, traveling to New York City periodically to replenish his

supply.   He later enlisted the assistance of his nephew, Corey

Williams, among others, to distribute the cocaine in Athens and

Columbia, South Carolina.       The operation soon outgrew its initial

suppliers, and John Williams began procuring shipments of cocaine

via   small   planes   from   California   and   Mexico.     Each   shipment

typically weighed between 30 and 100 kilograms.

      At first, John Williams personally distributed the cocaine to

a number of dealers, including Christopher Hayes (in amounts up to

8 kilograms per transaction) and Marquel Riley.            Eventually, John

Williams grew wary of direct involvement with so many individuals,

and limited his direct sales to his lieutenants, who in turn

distributed the drugs to other middlemen and dealers. Though Corey

Williams acted as a lieutenant early in the conspiracy, John

Williams came to find him unreliable, and began searching for a


                                    11
replacement.        Cooperating witness John Dickerson (“Dickerson”), a

mid-level      distributor      in   the    organization,         testified   that   he

introduced Appellant David Miles (“Miles”) to John Williams as a

suitable candidate, and that Miles was hired as John Williams’s

lieutenant in 2000.       Miles then moved to Athens and managed a stash

house for John Williams and oversaw further distribution to South

Carolina.

       John Williams testified that Miles was “the best middleman

[he]   ha[d]    ever    had.”        J.A.    3503.        Miles   supplied    multiple

kilograms of cocaine to Appellants Anthony Wilson, Christopher

Hayes, Marquel Riley, and Johnny Cooper, using intermediaries such

as Dickerson and Appellant Tanesha Bannister.                     Nevertheless, John

Williams grew distrustful of Miles, and ultimately replaced him as

lieutenant with Joe Lark (“Lark”), accompanied often by his drug

business    partner,     Appellant         Demetrius      Green    (“Green”).    John

Williams testified that on at least ten occasions, Green and Lark

picked up between 12 and 17 kilograms of cocaine from him, and

delivered them to South Carolina.

       During this time, Corey Williams and other lieutenants emeriti

continued      to    receive    cocaine,         albeit    indirectly,    from   John

Williams. Corey Williams in particular supplied Appellants Antonio

Owens, Donald Byrd, Johnny Frank Davis, Armand Hammond, Joseph

McConnell, Marquel Riley, Furman Quattlebaum, and Darren White.

When Corey Williams was short on supply, Darren White would at


                                            12
times secure shipments from another source and distribute them

among the same group.

     Appellant William Edwards (“Edwards”), a disbarred attorney,

assisted Corey Williams in establishing sham businesses to process

his drug earnings.   From time to time, Edwards would obtain small

quantities of cocaine from Corey Williams for his personal use and

for use in “greasing,” or incentivizing, such business deals for

Corey Williams.

     On May 2, 2003, the jury found all fifteen Appellants guilty

of conspiracy under 21 U.S.C. § 846 to possess with intent to

distribute 5 kilograms or more of cocaine, or2 50 grams or more of

cocaine base, in violation of § 841(a) and § 841(b)(1)(A)(ii)(II),




     2
      Section 841 punishes the possession with intent to distribute
of either cocaine, § 841(b)(1)(A)(ii)(II), or cocaine base,
§ 841(b)(1)(A)(iii). Nevertheless, the Indictment charged the two
drugs in the conjunctive. See J.A. 64 (charging Appellants with
conspiracy to possess with intent to distribute “5 kilograms or
more of cocaine, and 50 grams or more of cocaine base”) (emphasis
added). The jury instructions, on the other hand, followed the
language of the statute, allowing conviction if either drug was
found to be within the scope of the conspiracy in the relevant
amount. See J.A. 970 (“The government is not required to prove
that the conspiracy involved both cocaine and cocaine base . . . .
But the government must prove that the overall scope of the
conspiracy involved at least five kilograms of cocaine or at least
50 grams of cocaine base.”) (emphasis added).          Contrary to
Appellants assertion, this seeming discrepancy does not actually
pose a meaningful variance, and certainly does not undermine
Appellants’ convictions. See Turner v. United States, 396 U.S.
398, 420 (1970) (“The general rule is that when a jury returns a
guilty verdict on an indictment charging several acts in the
conjunctive, . . . the verdict stands if the evidence is sufficient
with respect to any one of the acts charged.”).

                                13
(iii).3       Appellants were individually sentenced during the early

months of 2004 to terms of imprisonment ranging from 120 months to

life in prison.          Appellants timely appealed.



                                            II.

                                            A.

       Appellants        first    challenge       their   conspiracy    convictions,

contending that there was insufficient evidence for the jury to

find       that   Appellants      were    collectively     involved     in   a   single

conspiracy.         The convictions must be upheld if, “viewing the

evidence      in   the    light    most    favorable      to   the   government,   any

rational trier of facts could have found the defendant[s] guilty

beyond a reasonable doubt.”               United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982).              “[D]eterminations of credibility ‘are

within the sole province of the jury and are not susceptible to

judicial review.’”         United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc) (quoting United States v. Lowe, 65 F.3d 1137,

1142 (4th Cir. 1995)).

       To prove each charge of conspiracy to possess cocaine with

intent to distribute, in violation of § 846, the government must


       3
      Appellant Joseph McConnell was the only Appellant charged and
tried with a substantive violation of § 841(a), for possession with
intent to distribute 500 grams or more of cocaine.        The jury
convicted him on that count as well. Appellant Donald Byrd was
also convicted of possessing a firearm despite being a convicted
felon, in violation of 18 U.S.C. § 922(g)(1).        Neither party
presented argument on appeal that those convictions are unsound.

                                            14
establish that: “(1) an agreement to possess cocaine 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.    Direct evidence of an agreement obviously suffices to prove

the first element, but circumstantial evidence of such coordination

can also prove the existence of an agreement by inference.                      Id. at

857-58.      The second element--knowledge of the conspiracy--does not

require that the defendant have personal knowledge of each member

or action taken in furtherance of the joint goal.                         Instead, an

unlawful conspiracy “can have an elusive quality”; “a defendant may

be convicted of conspiracy with little or no knowledge of the

entire breadth of the criminal enterprise.”                   Id.     Finally, the

third   element,     the    joining    of   the    conspiracy,      can    be   proved

whenever the evidence at least “establish[es] a slight connection

between the defendant and the conspiracy.”                  Id. at 861 (internal

quotations      omitted).      In     challenging     the   sufficiency         of   the

evidence      to   support    the     conspiracy      convictions     here,      then,

Appellants “face[] a heavy burden.”               United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007).

       In the face of mountainous and damning evidence provided by

the numerous cooperating witnesses at trial, many of whom were

high-ranking members of the conspiracy, Appellants predicate their

sufficiency-of-the-evidence challenge on their characterization of


                                          15
their trial as “a classic example of the concept [of federal

conspiracies] grown out of control.”                   Appellants’ Br. at 45.

Appellants contend that, at most, the evidence tended to show the

existence of multiple conspiracies, and the government’s attempt to

prove    otherwise    required       the        “‘piling    [of]     inference     upon

inference.’” Id. at 51 (quoting Direct Sales Co. v. United States,

319 U.S. 703, 711 (1943)).          In essence, Appellants request that we

go   beyond   the    usual    principles         governing    sufficiency-of-the-

evidence   review,     as    detailed      above,     and    impose       a   heightened

standard of review to ensure that the convictions are sound.

       This court, sitting en banc, rejected precisely this challenge

in Burgos. Drug-conspiracy appellants had argued that our decision

in United States v. Giunta, 925 F.2d 758 (4th Cir. 1991), required

a “heightened degree of review regarding sufficiency challenges to

conspiracy convictions.”            Burgos, 94 F.3d at 859.               Finding such

elevated      scrutiny       “not     consistent           with     our       conspiracy

jurisprudence,” this court overruled Giunta and reaffirmed the

principle that the jury is entitled to the same respect, and its

verdict the same deference, regardless of whether it finds guilt

for conspiracy or for a substantive offense.                      Burgos, 94 F.3d at

860.

       Moving then to our limited review of the convictions here, we

find ample evidence to support the jury’s verdicts.                            Far from

requiring the “piling of inference upon inference,” the facts


                                           16
adduced at trial show a singular cohesiveness to the instant

conspiracy.      With the extensive live testimony of kingpin John

Williams,      distributor    John   Dickerson,       and    others,    and     the

intercepted wiretap and consensual wire recordings of the dealings

of distributor Corey Williams, the government was able to show

multiple connections both among Appellants and between Appellants

and John Williams’s sophisticated drug-distribution organization.

John Williams testified to engaging personally in a number of large

cocaine transactions with Appellants David Miles and Demetrius

Green.    Further, Dickerson testified to Bannister’s involvement

with   Miles    as   an   intermediary,    and   to   the    buying    habits    of

Appellants Anthony Wilson, Johnny Cooper and Christopher Hayes.

Finally, the recordings of Corey Williams provided direct evidence

of the purchasing proclivities of Appellants Antonio Owens, Donald

Byrd, Furman Quattlebaum, Armand Hammond, Marquel Riley, Joseph

McConnell, Darren White, Johnny Frank Davis, and William Edwards.

Thus, the evidence before the jury showed that each Appellant was

linked to the conspiracy, not by tenuous association with other

minor conspirators, but by direct transactions with one or more of

three high-ranking members of John Williams’s drug business. Given

the    inappropriateness     of   second-guessing      the    jury’s    apparent

crediting of some or all of this testimony, we cannot say that the

jury acted irrationally in returning convictions for Appellants.




                                      17
                                      B.

     Four Appellants seek to have their convictions overturned on

the theory that the district court’s denial of their motions for

severance under Federal Rule of Criminal Procedure 14 unfairly

prejudiced their defense.4      We review the district court’s denial

of such motions for abuse of discretion.       United States v. Reavis,

48 F.3d 763, 767 (4th Cir. 1995).

     It   has    long   been    the   rule   that,   “[b]arring    special

circumstances,    individuals    indicted    together   should    be   tried

together.”    United States v. Brugman, 655 F.2d 540, 542 (4th Cir.

1981).    The mere fact that the charge to be tried is one of

conspiracy provides no exception to this general precept.                See

United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).             On

the contrary, the joint-trial “presumption is especially strong in

conspiracy cases.” United States v. Harris, 498 F.3d 278, 291 (4th

Cir. 2007).      The existence of “special circumstances” is rare,

indeed; “a district court should grant a severance under Rule 14

only if there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.”



     4
      Rule 14(a) provides: “If the joinder of offenses or
defendants in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the court
may order separate trials of counts, sever the defendants’ trials,
or provide any other relief that justice requires.” Fed. R. Crim.
P. 14(a).

                                      18
Zafiro v. United States, 506 U.S. 534, 539 (1993); see also Harris,

498 F.3d at 291.        At bottom, we reverse the denial of a severance

motion only when such denial would “deprive[] the defendants of a

fair trial and result[] in a miscarriage of justice.”                    Harris, 498

F.3d at 291 (internal quotations omitted).

       Appellants Green, Miles, Johnny Frank Davis and Anthony Wilson

argue in Appellants’ collective brief that the strength of evidence

against the high-ranking members of the conspiracy might have

impermissibly tainted the jury’s determinations of guilt for “[t]he

more peripheral defendants.” Appellants’ Br. at 56. This argument

must fail.       The district court was careful to instruct the jury

that       “[e]ach   count,    as   to    each   defendant,   and   the    evidence

pertaining      to   that     count   and    defendant   should     be   considered

separately and individually.              The fact that you may find one of the

defendants guilty or not guilty should not control your verdict as

to the other defendants.”                J.A. 959.   We presume that the jury

complied with this instruction.              See United States v. Alerre, 430

F.3d 681, 692 (4th Cir. 2005).               We therefore find nothing in the

record to suggest that the jury was prevented “from making a

reliable judgment about guilt or innocence” as to each Appellant.

Zafiro, 506 U.S. at 539.5


       5
      We also note that Appellants Green and Miles, both of whom
appeal the denial of their motions for severance, can hardly claim
to be “peripheral defendants,” as both, on multiple occasions,
received large amounts of cocaine for distribution from John
Williams, either directly or as part of a business partnership.

                                            19
       Appellant Anthony Wilson raises the additional argument that

the calling of his brother, Perry Wilson, by the government in its

case-in-chief unduly prejudiced the jury against him. Perry Wilson

was slated to testify only as to David Miles’s involvement in the

conspiracy, but on cross-examination by Miles’s trial counsel, was

asked several questions regarding Anthony Wilson’s prior drug

dealing. Anthony Wilson’s counsel objected, seeking a mistrial and

severance.    The district court denied the motion, striking the

portions of Perry Wilson’s testimony pertaining to Anthony Wilson.

The district court immediately admonished the jury that such

testimony “may not be considered by you for any purpose during your

deliberations in this case.”    J.A. 638.

       “‘[C]ourts generally have discerned no reversible error where

the trial court has acted promptly in sustaining an objection and

advising the jury to disregard the testimony.’”    United States v.

Hayden, 85 F.3d 153, 158 (4th Cir. 1996) (quoting United States v.

Dorsey, 45 F.3d 809, 816 (4th Cir. 1995)).     As before, we see no

reason to assume that the jury allowed Perry Wilson’s testimony to

color its verdict against Anthony Wilson.   See Alerre, 430 F.3d at

692.     Finding no “special circumstances” that would recommend

deviation from the presumption of trying Appellants jointly, we




                                 20
cannot say that the district court abused its discretion here in

denying the motions for severance.6

                                          C.

     Appellants finally seek to have their convictions overturned

because    the   prosecution       allegedly    improperly   vouched     for   the

veracity of cooperating witnesses.             The issue of improper vouching

is a question of law that we review de novo.                 United States v.

Collins, 415 F.3d 304, 307 (4th Cir. 2005).

     Appellants assert that, on direct examination of certain

cooperating      witnesses,     the    prosecutor     mentioned     that   those

witnesses had entered into plea agreements requiring that the

witnesses tell the truth. Such plea agreements were also mentioned

in   two   instances      during    the    prosecution’s     closing    rebuttal

argument.        First,   the   prosecutor      explained    to   the   jury   the

consequences John Williams would face if he were found to have

provided less than full cooperation: “Mr. Williams understands

better than anybody else what it means if he fails to cooperate, if

he discontinues that cooperation, or if he gives the government any

reason to think that he’s being less than forthcoming.”                 J.A. 894-




     6
      Appellant Armand Hammond also joins in the appeal from the
denial of the motions to sever, echoing the same arguments of the
other four Appellants, but does not point to any record citation of
his having made such a motion before the district court.       Even
assuming such a motion was made, the district court would not have
abused its discretion by denying it for the reasons discussed
above.

                                          21
95.     Later, the prosecutor reminded the jury of the testimony of

Perry Wilson, then opined:

        Perry Wilson didn’t want to talk about his brother
        [Anthony Wilson], and he will be dealt with at a later
        time. It’s not over. I don’t know if I can blame him
        for not wanting to talk about his brother, but that’s not
        my call. He will be dealt with at a later time.

J.A. 904.

        As a general matter, “[t]estimony concerning the existence of

a plea or immunity agreement concerning a government witness can

cut both ways.”      United States v. Henderson, 717 F.2d 135, 137 (4th

Cir. 1983).        On the one hand, the defense may benefit from the

inference that a cooperating witness will tell the government what

it wants to hear in exchange for a reduced sentence or other

concessions, reducing his credibility.                 On the other hand, the

government may benefit from the inference that it has the power to

force    the   cooperating      witness    to   tell   the   truth,    lest      those

concessions be retracted, enhancing the credibility of the witness.

As such, the decision by a district court to allow discussion on

direct examination of the existence of a plea agreement and the

cooperating witness’s attendant promise of truthfulness does not,

without    more,    constitute     reversible     error.      See     id.   at    138.

Impermissible vouching arises only when the prosecutor cultivates

the     inference    in   his    favor     by   “‘explicitly     or     implicitly

indicat[ing] that [he] can monitor and accurately verify the

truthfulness of the witness’ testimony.’” Collins, 415 F.3d at 308


                                          22
(quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.

1990)).      Such vouching is particularly pernicious “during an

attorney’s    soliloquy    to    the   jury”   because    the   prosecutor   is

untethered    from   the   question-and-answer      format,     and   therefore

“potentially prejudicial statements made during closing arguments

require closer scrutiny than the eliciting of information about the

plea agreement during the prosecutor's case in chief.”                Collins,

415 F.3d at 308.

     In Collins, the prosecutor explained in her closing rebuttal

argument that witnesses subject to plea agreements were under an

obligation to tell the truth.          She continued, “The government is

always seeking to determine whether they are telling the truth.”

Id. at 307.      The Collins court, however, declined to determine

whether   such   statement      constituted    improper   vouching,    instead

finding that even if the statement were considered prosecutorial

misconduct, it was harmless, as it did not “‘so infect[] the trial

with unfairness as to make the resulting conviction a denial of due

process.’”    Id. at 309 (quoting United States v. Scheetz, 293 F.3d

175, 185 (4th Cir. 2002)) (omission in Collins).                This prejudice

inquiry turns on analysis of four factors, cited in Collins: “(1)

the degree to which the comments could have misled the jury; (2)

whether the comments were isolated or extensive; (3) the strength

of proof of guilt absent the inappropriate comments; and (4)

whether the comments were deliberately made to divert the jury's


                                       23
attention.”    United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.

1997).

     We follow the example set forth by the Collins court and

assume,    without    deciding,      that   the   statements   made    by   the

prosecutor     here    constituted     improper    vouching.      A    careful

consideration of the same four factors reveals that any such

vouching did not unfairly prejudice Appellants.7 First, Appellants

lodged a contemporaneous objection to the statements offered by the

prosecutor in closing arguments.            The district court issued an

immediate curative instruction, as in Collins, clarifying that

     the question of what will happen in the future to a
     cooperating witness is a matter that is not in evidence
     in this case. The only thing that is in evidence are the
     factors that you heard about their plea agreements [and]
     their opportunity to possibly earn a sentencing
     reduction.

J.A. 904-05.    Because this curative instruction was given in close

proximity to the allegedly improper statements, and because the

district     court    so   clearly    delineated    the   scope   of    proper

consideration of the specifics of plea agreements, the first factor

weighs strongly in favor of the government.           See Collins, 415 F.3d

at 309.

     The other factors also weigh in favor of the government.               The

statements were fleeting, occupying only a brief portion of the



     7
      Appellants do not discuss these factors, nor do they make any
attempt to demonstrate why any improper vouching during the trial
should not be considered harmless error.

                                       24
prosecutor’s one-hour closing rebuttal argument.         Next, there was

overwhelming evidence of the existence of the conspiracy, and the

prosecutor’s statements did little to undercut the connection of

any     given   Appellant   to   the   broader   conspiracy.8   Finally,

Appellants have not suggested, nor is there any evidence in the

record to suggest, that the statements were deliberately made to

divert the jury’s attention from the important decisions before

them.     On balance, we conclude, as did the Collins court, that any

impermissible vouching that might have occurred was harmless.




      8
      We note that the jury was twice cautioned against using
witness Perry Wilson’s statements as evidence against Anthony
Wilson, once immediately following Perry Wilson’s testimony and
again in connection with the allegedly improper vouching.
Therefore, we do not find that the stricken statements of Perry
Wilson regarding Anthony Wilson’s prior drug dealing substantially
undermined the other evidence of Anthony Wilson’s guilt of the
conspiracy charge.

                                       25
     Having considered and rejected all of Appellants’ arguments

suggesting that their convictions are unsound,9 we now consider


     9
      Appellants detail a number of other arguments attacking their
convictions. For example, Appellants argue that the admission of
the statements of the late Corey Williams, captured via wiretap
(before his cooperating with authorities) and via wire (with Corey
Williams’s consent), violated their right under the Sixth Amendment
to “confront[] . . . the witnesses against [them].” U.S. Const.
amend. VI. We review de novo the legal question of whether the
admission of certain evidence violates the Confrontation Clause.
United States v. Halteh, 224 Fed. Appx. 210, 216 (4th Cir. 2007).
     Only admission of “testimonial” statements implicates the
Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 68
(2004).    Statements in furtherance of a conspiracy are not
testimonial. See id. at 56; United States v. Sullivan, 455 F.3d
248, 258 (4th Cir. 2006).         Prior to his cooperation with
authorities, Corey Williams was a coconspirator to Appellants. Any
statements captured by the wiretap, therefore, are non-testimonial
and their admission does not violate the Confrontation Clause.
     Furthermore, the district court carefully circumscribed the
jury’s consideration of those statements of Corey Williams
captured, with his consent, via wire. The court cautioned the jury
that the statements “are not offered to prove the truth of the
matter.   In other words, you may not take as true what Cor[e]y
Williams is saying.” S.J.A. 746. Instead, Corey Williams’s half
of the conversation was admitted to provide context for the
captured statements made by others.          A statement is not
“testimonial” unless “made for the purpose of establishing or
proving some fact.” Crawford, 541 U.S. at 51 (internal quotations
omitted). Because Corey Williams’s statements were not admitted
for their truth, they were not testimonial. The cooperating Corey
Williams was not, then, a “witness[] against [Appellants],” U.S.
Const. amend. VI, and the admission of his statements therefore
poses no Confrontation Clause problem.
     Other challenges to the convictions were made by individual
Appellants in their supplemental briefs. For example, Appellant
William Edwards contends that his conviction must be overturned in
light of the Speedy Trial Act (the “STA”), 18 U.S.C. § 3161 et seq.
The STA requires that a defendant’s trial begin within seventy days
of the filing date of the indictment. Id. § 3161(c)(1). The STA
allows for tolling of that period under certain circumstances,
however.   For example, delays attributable to the joinder of a
codefendant, § 3161(h)(7), or to the court’s granting of any
reasonable continuance, § 3161(h)(8), are excluded from the
seventy-day timespan. Though William Edwards’s trial did not begin

                                26
Appellants’ arguments made with respect to their sentences.



                                  III.

                                   A.

     Appellants first challenge their sentences as violative of

United States v. Booker, 543 U.S. 220 (2005).      The district court

sentenced each Appellant under the then-mandatory United States

Sentencing   Guidelines.    The     government   concedes   that    this

constitutes statutory error under Booker, regardless of whether the

district court also violated the Sixth Amendment by “enhancing

[the] sentences based on facts found by the court alone.”          United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005); see also id.

at 547 (“The Booker Court concluded that [its] remedial scheme

should apply not only to those defendants . . . whose sentences had

been imposed in violation of the Sixth Amendment, but also to those

defendants . . . who had been sentenced under the mandatory regime

without suffering a constitutional violation.”).




until several months after he was first indicted, much of that time
coincided with the serial arrests of the Appellants throughout
2002, and with the continuance granted after the murder of Corey
Williams. In light of these exclusions, the relevant time period
totals fewer than seventy days.      William Edwards’s conviction
therefore did not violate the STA.
     We have carefully reviewed all the other arguments made by
Appellants jointly and individually attacking their convictions,
and find them to be either without merit or to describe errors that
we find harmless.

                                  27
     The government also concedes that Appellants preserved the

error in the district court.         See United States v. Rodriguez, 433

F.3d 411, 416 (4th Cir. 2006) (noting that a claim of statutory

Booker error is properly preserved when the defendant “plainly

notified the court of his position that he was being sentenced

illegally” and “identified the line of Supreme Court precedent upon

which   he    now   relies”).      Therefore,   we   review   the   error   for

harmlessness.       Id.

     The government seeks to prove harmlessness with respect to

only one Appellant--Johnny Frank Davis.          It concedes, wisely, that

the Booker error is reversible for the other fourteen Appellants.

A defendant properly subject to the penalties of 21 U.S.C. §

841(b)(1)(A)        faces    a   mandatory   minimum    sentence     of     life

imprisonment if commission of the instant offense occurs “after two

or more prior convictions for a felony drug offense have become

final.”      21 U.S.C. § 841(b)(1)(A).       “Booker did nothing to alter

the rule that judges cannot depart below a statutorily provided

minimum sentence.”          United States v. Robinson, 404 F.3d 850, 862

(4th Cir. 2005).          This is so because, regardless of the role of

discretion in affixing guidelines ranges, “a district court has no

discretion to impose a sentence outside of the statutory range

established by Congress for the offense of conviction.”                     Id.

Johnny Frank Davis had three “prior convictions for a felony drug

offense,” 21 U.S.C. § 841(b)(1)(A): one for possession of cocaine,


                                       28
one   for    trafficking     in    cocaine,     and   one   for    distribution   of

cocaine.         Thus, the mandatory or advisory nature of the Guidelines

could have no impact on Johnny Frank Davis’s sentence, which could

not be set lower than the statutory minimum of life imprisonment.

We therefore find that remand for resentencing on the basis of

Booker for Johnny Frank Davis would be futile.

      We must vacate the sentences of the other fourteen Appellants,

however, and remand to the district court for resentencing.                       We

have no reason to doubt that the court is not, by now, well-versed

in post-Booker sentencing procedures. See Hughes, 401 F.3d at 546-

47 (laying out such procedures).                We also direct the court to

consult United States v. Pauley, 511 F.3d 468, (4th Cir. 2007), to

assist in applying the Supreme Court’s most recent pronouncements

in the area of sentencing law.            See Gall v. United States, 128 S.

Ct. 586 (2007); Kimbrough v. United States, 128 S. Ct. 558 (2007).

                                          B.

      Finally, Appellants challenge their sentences under United

States      v.    Collins,   415   F.3d   304    (4th   Cir.      2005).   A   brief

discussion of the issue this court addressed in Collins would

provide useful background for our current analysis.

                                          1.

      The Collins court considered the extent to which Apprendi v.

New Jersey, 530 U.S. 466 (2000), altered this circuit’s earlier

drug conspiracy precedents, most notably United States v. Irvin, 2


                                          29
F.3d 72 (4th Cir. 1993).          The Irvin court had been tasked with

choosing between two competing “plausible interpretation[s]” of the

interplay between § 846, the conspiracy statute, and § 841(b), a

statute that imposes penalties for substantive violations of the

narcotics distribution statute § 841(a).              Collins, 415 F.3d at

312.    Section 841(b) details a graduated penalty scheme, whereby a

defendant found guilty of distribution of a certain amount of

narcotics is subjected to one of three different sets of statutory

minimum and maximum sentences based on that drug amount.                See §

841(b)(1)(A), (B), (C).           Insofar as § 846 subjects those who

conspire to commit a § 841(a) offense “to the same penalties as

those    prescribed    for   [a   substantive   §    841(a)]   offense,”   the

question posed to the Irvin court was whether the district court

should “aggregate the[] amounts . . . involved in each object of

the offense of the conspiracy, . . . and then assign to each

coconspirator    the     mandatory    minimum       sentence   of   §   841(b)

corresponding to the aggregated quantity of narcotics,” or should

instead “individualize[]” each coconspirator’s sentence “to reflect

[his] relative culpability in the conspiracy.”             Irvin, 2 F.3d at

76.     The Irvin court selected the latter interpretation as “the

most reasonable,” holding that “the statutes require a district

court to determine the accountability of each coconspirator for

each object offense and the quantity of narcotics involved in each

object offense using the principles of Pinkerton [v. United States,


                                      30
328 U.S. 640 (1946)].”    Id.   As a result, in the post-Irvin era,

the proper quantity of narcotics was determined by the district

court itself, then matched with the corresponding range in § 841(b)

to determine the appropriate maximum and minimum penalty.

     In 2000, however, the Supreme Court issued its landmark

decision in Apprendi, announcing that “[o]ther than the fact of

prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”      530 U.S. at 490.

This court soon thereafter convened en banc to consider the effect

of Apprendi on the levying of § 841(b) penalties for substantive

violations (as opposed to conspiratorial violations via § 846)   of

§ 841(a).   See United States v. Promise, 255 F.3d 150, 156 (4th

Cir. 2001) (en banc).    We concluded that “the prescribed statutory

maximum” benchmarked in Apprendi is that found in the third and

most lenient subsection of § 841(b)(1), namely § 841(b)(1)(C),

applicable to cases involving drug amounts less than the thresholds

described in the other two subsections, § 841(b)(1)(A) and (B).

Promise, 255 F.3d at 156.       “Apprendi dictates that in order to

authorize the imposition of a sentence exceeding the maximum

allowable without a jury finding of a specific threshold drug

quantity, the specific threshold drug quantity must be treated as

an element of an aggravated drug trafficking offense, i.e., charged




                                  31
in the indictment and proved to the jury beyond a reasonable

doubt.”    Id.

     The Promise court did not, however, have occasion to address

whether Apprendi’s “prescribed statutory maximum” for a violation

of § 841(a) via the conspiracy statute of § 846 was that found in

the subsection of § 841(b)(1) corresponding to the amount of drugs

contemplated by the conspiracy as a whole or in the subsection

corresponding    to    the    amount     of     drugs   attributable    to     each

individual defendant.         It is this lacuna that was filled by the

Collins court.

     The    Collins     court    harmonized          Irvin    and   Apprendi     by

substantially reaffirming the holding of Irvin but reassigning,

from the district court to the jury, the role of determining the

amounts attributable to individual conspirators.

     Irvin’s holding that Pinkerton principles should be used
     to determine, for sentencing purposes, the amount of
     narcotics attributable to any one individual in a
     conspiracy, remains good law. Under current precedent,
     rather than the district court applying Pinkerton
     principles when determining the appropriate sentence
     under § 841(b), that same court must instead instruct a
     jury to use Pinkerton principles when making the same
     determination.

Collins, 415 F.3d at 314; see also United States v. Foster, 507

F.3d 233, 250-51 (4th Cir. 2007) (recognizing that, under Collins,

“in order for the statutory maximums and mandatory minimums of

§ 841(b) to apply in a drug conspiracy case, the jury must

determine    that     the    threshold        drug   amount   was   reason[]ably


                                         32
foreseeable to the individual defendant”).             To hold otherwise, the

court feared, would “attribute[] to . . . an individual member of

the conspiracy[] the quantity of [drugs] distributed by the entire

conspiracy” in violation of the individual-attribution principle of

Irvin.    Collins, 415 F.3d at 314.

       Because the district court in Collins had expressly instructed

the jury to concern itself only with the amount of drugs that

“applie[d] to the entire group of conspirators,” the Collins court

found error.       Id. at 311.       We note that the Collins court found

such     error   to    be   merely    that    of    providing   improper     jury

instructions. See id. at 306 (summarizing Collins’s argument under

Irvin as contending “that the district court gave improper jury

instructions”); id. at 311 (analyzing Collins’s claim under the

heading    “Jury      Charge   Regarding     Drug   Quantity”);   id.   at    314

(discussing the error as “the district court’s failure to issue

appropriate jury instructions concerning the facts necessary to

determine Collins’ sentence”); see also United States v. Ferguson,

245 Fed. Appx. 233, 246 (4th Cir. 2007) (unpublished) (Niemeyer,

J., dissenting) (explaining that, where the jury does make a

finding under Promise of the amount of drugs involved in the

conspiracy, the failure of the district court to further ask the

jury to determine the individual amount attributable to each

conspirator “is simply an error of instruction”).




                                        33
                                 2.

     Having summarized the import of Collins, we can now apply its

holding to Appellants here.    Before doing so, however, we must

determine whether Appellants preserved a Collins objection below,

as the answer in turn determines the appropriate standard of review

we must apply to Appellants’ challenge.

     The government suggests that “a close review of the record

below indicates that these defendants did not preserve the alleged

error.” Appellee’s Br. at 82. The government’s argument is simply

incorrect.   Counsel for Antonio Owens beseeched the district court

at the charge conference:

     Based on the conference we had earlier, the concern of
     the group appears to be that in this post Apprendi era
     that we are confronted with an area of the law that still
     is very much in a state of flux, that the United States
     Supreme Court has not yet addressed many of the areas
     that the Fourth Circuit is just now addressing with
     regard to Apprendi concerns.

     And for that reason the defense as a whole collectively
     is requesting that Your Honor require that the jury find,
     factually, weight amounts with regard to powder cocaine
     or crack cocaine, and/or crack cocaine, with regard to
     each individual accused.

     . . .

     And we are urging the court to take the conservative
     approach and have this jury make factual determinations
     with regard to each defendant with regard to whether or
     not the government has met its burden of proof beyond a
     reasonable doubt of the threshold amounts with regard to
     each individual accused.

S.J.A. 780-81.   This request appears to zero in precisely on the

holding later issued by Collins. Notwithstanding the prescience of

                                 34
counsel, the government argues that disagreement among Appellants’

attorneys regarding other issues relating to special verdict forms

suggests that Owens’s counsel was speaking here only for her

client.      This assertion is belied by the comment of the district

court just moments after Owens’s request that “I assume everyone is

joined in these issues, you don’t have to specifically say so.”

S.J.A. 783.

       The district court ultimately denied Appellants’ request for

individualized determinations of drug amounts, and instructed the

jury: “You are not being asked to determine the amount of drugs

each defendant might have been involved with.          It is the amount of

drugs involved in the overall conspiracy which is at issue.”              J.A.

970.        Plainly,   these   instructions   run   afoul   of   the   Collins

requirement that the jury “‘determine the accountability of each

coconspirator for . . . the quantity of narcotics involved in each

object offense using the principles of Pinkerton.’” Collins, 415

F.3d at 313-14 (quoting Irvin, 2 F.3d at 76).10




       10
      The government urges us to gloss over the clear guidance
provided to the jury by the district court, and instead find the
instructions “balanced and fair to both sides” in light of the
length of the trial and complexity of the issues. Appellee’s Br.
at 82. Of course, the government itself is responsible for the
trial and sentencing complexity that resulted from trying eighteen
defendants together. We see no reason to suspect that the jury
failed to follow its express instructions to eschew individualized
attribution. See United States v. Alerre, 430 F.3d 681, 692 (4th
Cir. 2005).

                                      35
     We find, therefore, that the district court committed Collins

error in its jury instructions, and that the error was preserved

below.11   These two findings combine to require that we review the

Collins error for harmlessness.       Before engaging in the review,

however, a brief discussion of the contours of harmless error in

this context is warranted.

                                 3.

     The Supreme Court’s decision in Neder v. United States, 527

U.S. 1 (1999), is instructive.        As a general matter, preserved

errors, even those of constitutional moment, are reviewed for

harmlessness under Federal Rule of Criminal Procedure 52(a).12        See

id. at 7-8.   Indeed, “most constitutional errors can be harmless.”

Id. at 8 (internal quotations omitted).         The narrow exception to

the rule arises in “a limited class of fundamental constitutional

errors that defy analysis by harmless error standards.”        Id. at 7

(internal quotations omitted).        This class of errors, dubbed

“structural    errors,”   encompasses    only    a   small   subset    of

constitutional errors, and requires reviewing courts to examine


     11
      Such error calls into question Appellants’ sentences only,
not their convictions, as suggested by Appellants. See Collins,
415 F.3d at 314 (“Guilt of the substantive offense defined in
§ 841(a) is not dependent upon a determination of the amount or
type of narcotics distributed. Therefore, the error below concerns
not § 841(a), but the penalty provisions in § 841(b). . . .
Collins’ conviction under § 846 is sound.”).
     12
      Rule 52(a) provides, “Any error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52.

                                 36
“all other constitutional errors . . . by apply[ing] Rule 52(a)’s

harmless-error analysis.”             Id. (emphasis added).

        The Neder Court proceeded to find that an error arising from

“a jury instruction that omits an element of the offense . . .

differs markedly from the constitutional violations we have found

to defy harmless-error review.”             Id. at 8.           The Court considered

the complete omission of an element of the offense from jury

instructions to be analogous “to improperly instructing the jury on

an element of the offense, an error which is subject to harmless-

error analysis.”            Id. at 10.   Thus, notwithstanding the fact that

such error “precludes the jury from making a finding on [an] actual

element     of        the    offense,”    id.,        thereby     unconstitutionally

“infring[ing] upon [its] fact-finding role,” id. at 18, a reviewing

court    must    proceed       to   determine    if    the   error   can   be   deemed

harmless.       Id.

        “[T]he test for determining whether a constitutional error is

harmless . . . . is whether it appears beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.”       Id. at 15.         To make this determination, a reviewing

court will often be required to “conduct a thorough examination of

the record” to “safeguard[] the jury guarantee.”                     Id. at 19.    If,

after such determination, “the court cannot conclude beyond a

reasonable doubt that the jury verdict would have been the same

absent the error--for example, where the defendant contested the


                                          37
omitted   element   and   raised   evidence   sufficient   to   support   a

contrary finding--it should not find the error harmless.” Id. The

defendant may not create reasonable doubt by pointing to scant

evidence in the record, however; only such “evidence that could

rationally lead to a contrary finding with respect to the omitted

element” is sufficient to stave off a finding of harmlessness. Id.

     This court has understood Neder to require two inquiries,

either of which may result in a finding of harmlessness.          “First,

‘where a reviewing court concludes beyond a reasonable doubt that

the omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same

absent the error, the erroneous instruction is properly found to be

harmless.’”   United States v. Brown, 202 F.3d 691, 700 (4th Cir.

2000) (quoting Neder, 527 U.S. at 17).13          When a defendant has


     13
      Under plain-error review, a reviewing court might decline to
recognize an error under similar circumstances. See United States
v. Cotton, 535 U.S. 625, 632-33 (2002) (holding that an appellate
court may not recognize as error the omission of drug quantity from
an indictment under § 846, because, since “[t]he evidence that the
conspiracy involved at least 50 grams of cocaine base was
‘overwhelming’ and ‘essentially uncontroverted,’” the error did not
“seriously affect[] the fairness, integrity or public reputation of
judicial proceedings”). Indeed, this court recently applied Cotton
in declining, on plain-error review, to recognize a Collins error
where the evidence of the defendant’s individual responsibility for
an amount in excess of 50 grams of crack “was overwhelming and
essentially uncontroverted.”    Foster, 507 F.3d at 250-51.     The
defendant in Foster had offered only a blanket challenge to the
drug quantities attributed to him, instead focusing his efforts on
challenging his guilt. The Foster court concluded that, in the
balance, “the government’s overwhelming evidence of the substantial
quantities of crack reasonably foreseeable” to the defendant would
have led a properly instructed jury to attribute at least 50 grams

                                    38
contested the evidence supporting the omitted element, however, the

reviewing court must next “determine whether the ‘record contains

evidence that could rationally lead to a contrary finding with

respect to that omitted element.’      If not, then the error is

harmless.” Id. (quoting Neder, 527 U.S. at 19) (internal citations

omitted).14

     This court has had numerous occasions since Brown to apply

Neder.    In one post-Apprendi case, for example, this court found

harmless the district court’s erroneous instruction to the jury

that an element of the offense of “impeding, intimidating, or

obstructing an employee of the United States acting in an official


of crack to him, and affirmed his sentence. Id. at 252.
     We do not apply Cotton here, however.         This court has
recognized that “[t]he Cotton principles . . . are applicable only
on plain error review, [not when we review] for harmless error.”
United States v. Robinson, 460 F.3d 550, 560 (4th Cir. 2006).
Though harmless-error review, detailed in Brown and applied here,
also considers the weight of the evidence and whether the substance
of the underlying omitted element was contested, its framework is
analytically distinct from the plain-error inquiry.      See United
States v. Olano, 507 U.S. 725, 732-35 (1993) (recognizing a four-
part test before reversal for plain error is appropriate, and then,
only at the discretion of the reviewing court). Our holding in
Robinson, though prohibiting application of Cotton here, does not,
as it cannot under Neder, foreclose application of harmless-error
analysis to the Collins error in this case.
     14
      The Brown court analyzed the harmlessness of the district
court’s failure to instruct the jury to identify three specific
criminal acts that constituted a “continuing series” for purposes
of proving a “continuing criminal enterprise” punishable under 21
U.S.C. § 848. Because the government had not sought to identify
any such acts at trial as constituting a “continuing series,” and
Brown had objected to evidence supporting the potential candidates
for such a series, the court ultimately found the error reversible.
Brown, 202 F.3d at 702-03.

                                39
capacity,” in violation of 26 U.S.C. § 7212(a), was reserved to the

court to decide as a matter of law.       United States v. Lovern, 293

F.3d 695, 696-97 (4th Cir. 2002).         In another, this court found

harmless what would come to be known as Promise error because “[n]o

defendant suggested that [the threshold drug] amounts [of § 841(b)]

had   not   been   proven   at   trial,   and   we   conclude   that   the

uncontroverted evidence demonstrated amounts hundreds of times more

than the amounts charged.”       United States v. Strickland, 245 F.3d

368, 380 (4th Cir. 2001) (applying Neder on plain-error review,

while recognizing that the ultimate inquiry in both plain-error and

harmless-error review, that is, “whether substantial rights of the

defendant were affected,” is the same, though the burden of proof

is allocated differently under the two standards). See also United

States v. Higgs, 353 F.3d 281, 308 (4th Cir. 2003) (finding

harmless error the issuance of a capital indictment that failed to

allege the requisite statutory aggravating factors).

                                    4.

      In light of this understanding of harmless-error analysis, we

apply the standard to the Collins errors here.        Each Appellant was

charged and convicted with conspiracy under § 846 to possess with

intent to distribute 5 kilograms of cocaine or 50 grams of cocaine

base in violation of § 841(a) and § 841(b)(1)(A).           The district

court declined to offer instructions that would have allowed the

jury to find an Appellant guilty of conspiracy to distribute a


                                    40
lesser amount of cocaine or cocaine base, as would be punished more

leniently under § 841(b)(1)(B) or (C).        Therefore, the verdicts

returned by the jury necessarily corresponded to the offenses

punished under § 841(b)(1)(A).        As we recognized in Collins, a

§ 846 offense punished under § 841(b)(1)(A) has, as an element that

must be found by the jury, an individualized determination that the

particular defendant was responsible for 5 kilograms of cocaine or

50 grams of cocaine base.    It is this element that was omitted from

the jury instructions, and for which we now review the record to

determine if the evidence supported a finding of the element beyond

a reasonable doubt.

     After careful review of the trial and sentencing transcripts

for all fifteen Appellants, we find that each, to a varying extent,

contested the drug amounts attributed to him or her by trial

testimony and by the district court at sentencing.15 See Brown, 202

F.3d at 700.   We therefore proceed directly to the second Brown

inquiry,   “whether   the   ‘record    contains   evidence   that   could

rationally lead to a contrary finding with respect to th[e] omitted

element’” of the individualized drug amounts of 5 kilograms of

cocaine or 50 grams of cocaine base.          Brown, 202 F.3d at 701

(quoting Neder, 527 U.S. at 19).



     15
      Because the trial and sentencing hearings predated our
decision in Collins, Appellants properly objected at sentencing to
the drug amounts attributed to them, as individualized drug amounts
were, under then-current law, mere sentencing factors.

                                  41
      In his extensive testimony at trial, John Williams recounted

his     years   of   securing   and   distributing   cocaine,   totaling

approximately 2000 kilograms. He also explained that he understood

that the vast majority, if not all, of the cocaine would be

“cooked” into crack before it was sold to the end-user.         Numerous

other witnesses corroborated this understanding.           Furthermore,

recordings from Corey Williams’s wiretap and wire captured various

Appellants discussing crack sales or their prowess in cooking

crack.    As aptly described by the district court at one sentencing

hearing, “Everyone testified [that the cocaine] was converted into

crack, that the whole purpose of this conspiracy was to buy cocaine

that could then be transferred into crack by means of methods that

would increase its weight and increase its profitability.”          J.A.

5808.    We find the evidence overwhelming that each member of the

conspiracy knew full well that the cocaine they were distributing

was being sold as crack.        In most instances, in fact, Appellants

themselves were the “chefs.”      See, e.g., S.J.A. 527 (transcript of

wiretap recording in which Marquel Riley describes “being the chef

for other people” and “[c]ooking they food for ‘em”); J.A. 5808

(same, in which Byrd refers to himself as “a master chef”).

      In light of this overwhelming evidence, we must find each

Collins error harmless, provided that no rational jury could

attribute less than 50 grams of crack (or 50 grams of cocaine,

which would foreseeably be converted to crack) to each Appellant.


                                      42
The evidence at trial showed that, even by conservative estimates,

most Appellants were responsible for many thousands or tens of

thousands of grams of crack.    Even “lower-level” members of the

conspiracy were invariably caught by eyewitnesses, wiretap, wire,

or some combination of the three, engaging in transactions totaling

a few thousand grams of crack.       A closer look at two examples

should serve to illustrate this point.

     So-called peripheral conspirator Johnny Frank Davis engaged in

a number of controlled purchases with a UCA. Each purchase totaled

250 grams of cocaine, and each such meeting was recorded and

videotaped.   These recordings also captured Davis bragging about

his ability to cook “crack” from cocaine and his skill in selling

drugs. Another witness testified that Davis had traded a Mercedes-

Benz automobile for another 250 grams of cocaine.   Davis was also

caught on a wiretap recording discussing past deals with Corey

Williams, informing him that he had lined up two customers for 500

grams apiece, and bantering about converting the cocaine to crack.

Davis’s objection to this evidence was non-specific: he informed

the district court that he was never involved in the conspiracy and

never engaged in any of the transactions described at trial.

Because of the overwhelming amount of evidence suggesting that

Davis was personally responsible for several thousand grams of

cocaine that he planned to convert to crack, and because Davis

offered little to contest that evidence, we find that no rational


                                43
jury would have failed to find Davis personally responsible for 50

grams or more of crack.

      A similar analysis governs the evidence the individual drug

amounts attributable to Furman Quattlebaum.                       No fewer than six

witnesses testified to engaging personally in drug transactions

with Quattlebaum, or to watching others do so, in amounts ranging

from 250 grams to 2000 grams of cocaine.                One witness testified to

seeing   Quattlebaum     sell      crack    in     amounts     of    over    50    grams.

Quattlebaum was also captured on a number of intercepted telephone

calls to Corey Williams, discussing his sales of crack.                           In one,

Quattlebaum can be heard describing his use of his oven to cook

crack in preparation for distribution.                 To contest these weights,

Quattlebaum offered the blanket assertion that “the whole [pre-

sentence report]” was flawed, and that he objected to “everything

to do with drug weight.”            J.A. 5833-34.           Again, in the face of

overwhelming     evidence     adduced       at    trial     that    Quattlebaum       was

involved    in   the   sale   of    many        thousands    of     grams    of    crack,

Quattlebaum countered with bare assertions.                         We find that no

rational jury would have failed to find Quattlebaum personally

responsible for 50 grams or more of crack.

      After careful review of the voluminous record in this appeal,

we   make   similar    findings     as     to    the   large       amounts   of     crack

attributable to each individual Appellant (save William Edwards).

As such, we find the Collins error with respect to those fourteen


                                           44
Appellants    to   be    harmless,   since    the   “‘record      contains   [no]

evidence that could rationally lead to a contrary finding with

respect to th[e] omitted element’” of the individualized drug

amounts of 5 kilograms of cocaine or 50 grams of cocaine base for

each such Appellant.          See Brown, 202 F.3d at 701 (quoting Neder,

527 U.S. at 19).

     William Edwards, on the other hand, was connected to the

conspiracy only through Corey Williams, and then only in the

capacity of establishing “front” businesses for him and accepting

small amounts of cocaine to “grease” deals with potential business

associates.    The government concedes that the Collins error in the

case of William Edwards cannot be shown to be harmless.                        We

therefore    offer      the   government    the   same   choice    of   remedies

presented in Collins:

     We will withhold judgment as to the conspiracy count [for
     William Edwards] for thirty days.     The Government may
     elect to request that we affirm the conspiracy conviction
     and remand for [Edwards] to be re-sentenced under the
     default penalty provision in § 841 that applies when the
     amount of [cocaine] attributable to a defendant is less
     than [500] grams, 21 U.S.C. § 841(b)(1)(C) . . . or the
     Government can request that we reverse [Edwards’s]
     conspiracy conviction and remand for a new trial.

Collins, 415 F.3d at 315.16




     16
      We have carefully considered Appellants’ other arguments
challenging their sentences, including the many objections to
individual sentencing enhancements. We find these challenges to be
without merit.

                                       45
                                IV.

     Having reviewed all of Appellants’ arguments challenging their

convictions and sentences, we find them to be without merit, save

reversible Booker error for all Appellants except Johnny Frank

Davis, and reversible Collins error for William Edwards.         We

therefore vacate the sentences of all Appellants except for Johnny

Frank Davis and William Edwards, the latter being preserved only

until the government makes its election of remedy pursuant to

Collins.   On remand for the thirteen Appellants to be re-sentenced

imminently under Booker, we note briefly that, because we have

found no reversible Collins error, the statutory penalty scheme of

§ 841(b)(1)(A), with its attendant statutory minima and maxima,

remains the proper framework in which to consider Appellants’ new

sentences.17

                                                  AFFIRMED IN PART,
                                      VACATED AND REMANDED IN PART,
                                      AND JUDGMENT WITHHELD IN PART




     17
      On November 1, 2007, the United States Sentencing Commission
lowered the Guidelines penalties for most crack-cocaine offenses.
See 72 Fed. Reg. 28558, 28571-73; U.S.S.G. App. C, Supp. Amend.
706; U.S.S.G. § 2D1.1 (2007). These amendments have since been
given retroactive effect, as of March 3, 2008. On Booker remand,
the district court should be careful to apply these amendments as
appropriate.

                                 46
BAILEY, District Judge, concurring:

     I fully concur in Judge Duncan’s excellent opinion.   I write

separately to urge this Court to take this case or some other

suitable case en banc to consider the viability of United States v.

Collins, 415 F.3d 304 (4th Cir. 2005), in the wake of United States

v. Booker, 543 U.S. 220 (2005).    I am of the opinion that Collins

is no longer viable for the reasons stated in footnote 12 of United

States v. Foster, 507 F.3d 233 (4th Cir. 2007), and the reasons

stated in Judge Niemeyer’s dissent in United States v. Ferguson,

245 Fed. Appx. 233 (4th Cir. 2007).     See also Derman v. United

States, 298 F.3d 34, 42-43 (1st Cir. 2002), United States v.

Turner, 319 F.3d 716, 722-23 (5th Cir. 2003), United States v.

Knight, 342 F.3d 697, 710-11 (7th Cir. 2003), United States v.

Phillips, 349 F.3d 138, 141-43 (3d Cir. 2003), vacated on other

grounds, 543 U.S. 1102 (2005), and United States v. Stiger, 413

F.3d 1185 (10th Cir. 2005).    I am of the opinion that the only

issue which should be sent to the jury is the drug type and weight

for the entire conspiracy, leaving individual culpability to the

sentencing judge.




                                  47
