                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4810


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

REGINALD DARWIN MORTON,     a/k/a   Jay,   a/k/a   Boogie,   a/k/a
Jason, a/k/a Novacaine,

                Defendant - Appellant.



                            No. 09-5004


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLES JERMAINE KING, JR., a/k/a Zig-Lah, a/k/a Ziggy,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-14; 1:08-cr-00041-jpj-pms-1)


Argued:   May 10, 2011                     Decided:   August 18, 2011


Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded      for   further
proceedings by unpublished per curiam opinion.


ARGUED:   Helen Eckert Phillips, MCGLOTHLIN AND PHILLIPS, PLLC,
Lebanon, Virginia; David Samir Saliba, SALIBA & COMPANY, PC,
Wytheville, Virginia, for Appellants.    Jennifer R. Bockhorst,
OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Reginald Darwin Morton and Charles Jermaine King, Jr., were

convicted of participation in a drug trafficking conspiracy, in

violation of 21 U.S.C. §§ 841 and 846.                    By special verdicts, the

jury found Morton guilty of conspiring to distribute or possess

with intent to distribute 50 grams or more of cocaine base and

less than 500 grams of cocaine, and King, the same with respect

to less than 50 but at least 5 grams of cocaine base.                                The

district court sentenced Morton to 240 months’ imprisonment and

King to 180 months’ imprisonment.

     Both     defendants         appealed,       raising    numerous      issues    with

respect to their trial and sentencing.                       For the reasons that

follow,     we    affirm        their   convictions,       and,    with    respect    to

Morton’s sentence, we vacate and remand for resentencing, in

light of United States v. Simmons, No. 08-4475, __ F.3d __, __

WL __ (4th Cir. Aug. 17, 2011) (en banc).



                                             I

     Morton and King were involved in a large drug trafficking

conspiracy which operated in the Bristol, Virginia area.                              The

conspiracy       was    orchestrated      in     large    part    by   Derrick     Evans,

Kerry Lee, Bryant Kelly Pride, and Oedipus Mumphrey, all of whom

were affiliated with Evans’ music label, “Kan’t Stop Records.”

Evans,    Lee,         Pride,     and   Mumphrey         recruited     several     other

                                             3
participants, including Morton and King, to help sell cocaine

and     crack     from    area    hotels,         mobile      homes,    and     locations

controlled by Evans.

      Morton’s involvement began in April 2006 when he traveled

to Bristol with Mumphrey to sell between 500 and 1,000 grams of

cocaine.        Thereafter, Morton continued to sell crack cocaine to

Bristol    residents,      several       of   whom      testified      against      him    at

trial.     The evidence also showed that Morton was present when

Bristol police officers discovered baking soda, a hot plate, and

other    equipment       used    to    prepare        crack   cocaine      in   a   vehicle

belonging to one of Mumphrey’s associates.

      King’s involvement was of a similar nature.                           He purchased

large quantities of crack cocaine from Lee and Pride and then

resold the drugs to third parties.                       At least six individuals

testified that they bought crack cocaine from King, often on a

recurring basis.         One of these individuals executed a controlled

purchase     of    crack     cocaine     from         King    in   April    2007,     which

ultimately led to King’s arrest and conviction in state court.

Other witnesses linked King to Kan’t Stop Records and several

key members of the conspiracy, including Pride and Mumphrey.

      Both      defendants      were    convicted        of    participating        in    the

conspiracy.          Morton      received         a    20-year     mandatory        minimum

sentence under 21 U.S.C. § 841(b)(1)(A), which was a variance

sentence because his offense level of 38 and criminal history of

                                              4
VI indicated an advisory Guidelines range of 360 months to life.

The Guidelines recommendation, as well as the mandatory minimum

sentence under § 841(b)(1)(A), depended in part on the fact that

Morton     had     a    prior   North       Carolina   conviction        for   cocaine

possession, for which he received a suspended sentence of 8 to

10 months’ imprisonment.             He objected to use of that conviction

because,      he      argued,   it   did    not    qualify    as   a    “felony      drug

offense,”        as    necessary     for     the    enhancement        set   forth     in

§ 841(b)(1)(A), and the district court overruled his objection.

The court imposed the variance sentence based on its rejection

in part of the 100 to 1 crack-to-powder ratio in effect at the

time.

     King     was      sentenced     to    180    months’    imprisonment,     to     run

concurrently with his imprisonment on state law charges.

     This appeal followed.



                                            II

     Both Morton and King contend that the district court erred

in refusing to grant their motions to dismiss the indictment,

based    on    their      claims     that    coconspirator      Paul     Vaughn      gave

perjured testimony before the grand jury to implicate them in

the conspiracy.          At the time, Vaughn had agreed to plead guilty

to his involvement in the conspiracy and to cooperate with the



                                             5
prosecution by testifying regarding the roles played by others,

including Morton and King.

      Initially, Vaughn fulfilled his end of the plea bargain, as

he   testified    before      the   grand       jury   and    at    two     trials,    each

involving coconspirators other than Morton and King.                              But after

he ended up in the same pod at the Roanoke city jail as other

coconspirators,        against      whom    he     had       testified,       he     ceased

cooperating.      Indeed, he began sending letters to the district

court indicating that he had lied in his grand jury and trial

testimony.     He wrote that he “did not know anything” about the

“Kan’t Stop conspiracy,” but “made up stuff” because government

investigators and prosecutors had “threaten[ed] [him] and [his]

family with life imprisonment” if he did not “make up something

on Mumphrey, Morton, and the rest in this case.”

      Morton     and   King    argue       that    Vaughn’s         false    grand     jury

testimony violated their Fifth Amendment right “to stand trial

on an indictment untainted by perjury.”

      The district court held several hearings on this issue and

ultimately     found    that     Vaughn     had    not       lied    in     his    original

testimony.     The court stated:

      Basically, I find that Mr. Vaughn testified truthfully
      before the grand jury and in his prior testimony, and
      his information originally to the authorities was
      truthful, and that what he has testified to today
      [seeking   to   recant   his  earlier  testimony]   is
      untruthful.   He has lied today about his involvement,
      and that’s based on my review of the entire record in

                                            6
      this case, as well as my opportunity to observe Mr.
      Vaughn not only today and at prior hearings, but in
      his trial testimony.    Much of the testimony that he
      gives is simply preposterous.   It’s incredible on its
      face. But there is abundant corroboration of his deep
      involvement in this conspiracy.

In a subsequent opinion, the district court elaborated, pointing

out   that    Vaughn’s       grand    jury       and     trial   statements          were

consistent    with    a    wide    range    of   other      evidence,    whereas      his

post-retraction       statements      --       including     claims     that   he     had

traveled to Bristol not to sell drugs but to meet with recording

artist   Ludacris     --    were    inconsistent,        entirely     new,     and    not

believable.

      Morton and King have not offered any reason to attribute

clear error to the district court’s factual findings.                        Moreover,

the petit jury’s guilty verdict, which was not based on any

testimony from Vaughn, as he did not testify at their trial,

rendered “any error in the grand jury proceeding connected with

the charging decision . . . harmless beyond a reasonable doubt.”

United States v. Mechanik, 475 U.S. 66, 70 (1986).                       Accordingly,

we reject Morton and King’s argument.



                                           III

      Morton and King also contend that the district court erred

in denying their motions for a change of venue by transferring

the   case   from    the   Abingdon    Division        to    either   the    Lynchburg


                                           7
Division or the Charlottesville Division.                     They argue that the

Abingdon Division was “inherently prejudicial” because they are

African-Americans       and       only    2.5%    of    the   population      in   the

Abingdon Division is African-American.                  They note that African-

Americans constitute 18% of the population in Lynchburg and 15%

in Charlottesville.           The district court denied their motions,

concluding that there was “no evidence at all . . . that there[]

[had] been any intentional discrimination by the Government or

in the process of selection of the jurors” or that “the jury

panels ha[d] not been selected absolutely in accord with law.”

      Morton and King have offered no evidence of intentional

discrimination.       In making their argument, they rely only on the

dearth      of   African-Americans        in     the   jury   pool.     But    simple

reliance on such statistics is insufficient, as “[d]efendants

are   not    entitled   to    a    jury    of    any   particular     composition.”

Taylor v. Louisiana, 419 U.S. 522, 538 (1975); see also United

States      v.   Nelson,     102    F.3d       1344,   1354    (4th   Cir.     1996).

Accordingly, we conclude that the district court did not abuse

its discretion in denying the defendants’ motion for a change of

venue.


                                           IV

      Morton and King also contend that the district court erred

in denying their motions for judgment of acquittal, based on an


                                           8
insufficiency         of   the     evidence.          Although    Morton      and   King

acknowledge        that    they    bought    drugs     from   and    sold     drugs   to

members of the conspiracy, they argue that this “buyer-seller

relationship” does not, on its own, amount to participation in

the conspiracy.

      The jury found otherwise, and its verdict must be sustained

“if   there      is     substantial        evidence,     taking      the     view   most

favorable to the Government, to support it.”                        United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).                           To prove

conspiracy, the government had to demonstrate, through direct or

circumstantial evidence, that (1) two or more persons agreed to

distribute cocaine; (2) Morton and King knew of the conspiracy;

and (3) they “knowingly and voluntarily became a part of” the

conspiracy.        See United States v. Yearwood, 518 F.3d 220, 227

(4th Cir. 2008) (quoting Burgos, 94 F.3d at 857).                          Based on the

record,     we     conclude       that    each   of     the   elements       was    amply

supported     by      substantial        evidence.      Mumphrey     testified      that

Morton traveled with him to Bristol for the express purpose of

selling cocaine, and several other witnesses corroborated not

only that claim, but also other evidence of Morton’s ongoing

role in the overall drug trafficking operations.                      Similarly, the

record shows that King was affiliated with Evans’ music label,

Kan’t Stop Records; that he bought crack cocaine from Lee and



                                             9
Pride; and that he often sold those drugs from homes controlled

by Evans.


                                       V

      Morton    challenges    his    sentencing,   arguing    (1)   that    the

special verdicts returned against him and King were inherently

inconsistent      and    therefore     the   district      court    erred    in

sentencing him on the higher drug amounts attributed to him by

the jury; and (2) that the district court erred in increasing

his sentence to the mandatory minimum of 20 years based on a

prior state court drug conviction that, he contends, was not a

felony and should not therefore have enhanced his sentence.                  We

address these arguments seriatim.


                                       A

      With respect to the inconsistent verdicts, Morton argues

that the jury, which found both Morton and King guilty based on

the same evidence, attributed 50 grams or more of crack to him

but   lower    amounts   to   King   and   coconspirator    Tyson   Anderson.

Because the verdicts were inconsistent, he maintains, he should

have received the benefit of the lower attributions.

      Morton’s argument, however, is facially unpersuasive.                 The

fact that a jury imputed greater amounts of drugs to him than to

other members of the conspiracy does not call into question the

validity or the legitimacy of the resulting guilty verdicts but

                                      10
only    reflects        the    jury’s    view       of    the       evidence.       See    United

States    v.    Green,        599    F.3d   360,     369       (4th    Cir.     2010)     (citing

United States v. Powell, 469 U.S. 57, 64 (1984); Dunn v. United

States,      284    U.S.      390,    393   (1932)).            And    the    fact    that     the

Sentencing          Guidelines          treat        different           drug        quantities

differently for purposes of sentencing is irrelevant to Morton’s

guilty verdict.


                                                B

       With respect to the district court’s use of his prior North

Carolina state conviction, Morton argues that the conviction was

for a misdemeanor, not a felony, and only a felony could enhance

his    sentence      under      21    U.S.C.    §    841(b)(1)(A).              A   felony    for

purposes       of   §   841     is    defined       to    be    a    crime    “punishable       by

imprisonment for more than one year.”                            Id. § 802(44).            Morton

argues that his prior drug offense was punishable by no more

than    10   months’          imprisonment.          See       N.C.    Gen.     Stat.     §   15A-

1340.17(c)-(d)          (setting        out     minimum         and     maximum       sentences

applicable          under      North     Carolina’s             “structured         sentencing”

regime); J.A. 1697 (documenting Morton’s prior conviction).

       When Morton raised this argument in the district court, it

was foreclosed by our decision in United States v. Harp, 406

F.3d 242 (4th Cir. 2005).                   Subsequently, however, we overruled

Harp    with    our      en    banc    decision          in    Simmons,      where    the     same


                                               11
argument was presented and sustained in favor of the defendant.

See United States v. Simmons, No. 08-4475, __ F.3d __, __ WL __

(4th Cir. Aug. 17, 2011) (en banc).             In view of Simmons, we will

likewise sustain Morton’s objection here, vacating his sentence

and remanding the case to the district court for resentencing.



                                        VI

       King contends that after the district court found that his

rights under the Interstate Agreement on Detainers (“IAD”) had

been violated, it erred in dismissing the original indictment

against him without prejudice, rather than with prejudice, as he

had    requested.         The    government   does   not   challenge     the   IAD

violation, as King was serving a state sentence in the Bristol

city jail when he was taken into custody by the United States

Marshal’s Service, brought to federal court, and then returned

to the Bristol city jail.             It notes, however, that § 9 of the

IAD Act provides that for a violation, the court can dismiss the

case with or without prejudice, depending on various factors,

such    as     the     seriousness      of    the    offense,      the   factual

circumstances leading to the IAD violation, and the impact of a

reprosecution        on    the    administration     of    the     agreement     on

detainers and on the administration of justice.                    Taking those

matters      into    consideration,     the   district     court   found,   as   a



                                        12
matter of its discretion, that it was appropriate to dismiss the

original indictment without prejudice.

       Travis      Dell     Jones,     one       of    King’s        coconspirators,        has

already     raised    this     issue    during         a    different      trial,     and   the

district court decided the issue against him.                              When considering

the same issue raised by King, the district court adopted its

opinion from        Jones’     trial    as       its    reasons      for    denying    King’s

motion.      When Jones appealed the district court’s ruling, we

affirmed.       See United States v. Jones, 367 Fed. Appx. 482 (4th

Cir. 2010).        For the same reasons, we now reject King’s argument

here.


                                             VII

       Finally,      King    asserts    that          the    district      court    erred    in

admitting evidence that he had sold cocaine to an undercover

informant     on    two     separate    occasions           and   that     he   had   pleaded

guilty to state charges in each instance.                            He argues that this

evidence was used to prove that he acted in conformity with his

allegedly bad character and that it should have been excluded

under Federal Rule of Evidence 404(b).

       We   find    this     argument       to    be       without    merit     because     the

evidence admitted was intrinsic to the conspiracy involved in

this    case.       Evidence     of     a    defendant’s          criminal      conduct     is

“intrinsic” when it is “inextricably intertwined” with conduct


                                             13
that has been charged, or “part of a single criminal episode.”

United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996) (quoting

United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)).

Because    the    evidence   of   the   two   transactions   was   within   the

scope of the conspiracy charged, Rule 404(b) was irrelevant.

See Chin, 83 F.3d at 88.

                                  *     *       *

     For    the    reasons   given,     we    affirm   Morton’s    conviction,

vacate his sentence, and remand for resentencing in accordance

with Simmons.        With respect to the issues raised by King, we

affirm.

                                        AFFIRMED IN PART, VACATED IN PART,
                                      AND REMANDED FOR FURTHER PROCEEDINGS




                                        14
