                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 06-4977


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LOUIS ANTONIO   BRYANT,   a/k/a    Tinio,    a/k/a   Black,    a/k/a   B
Stacks,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:04-cr-00047-NKM)


Argued:   September 26, 2008                Decided:      November 25, 2008


Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER III,
United States District Judge for the Eastern District of North
Carolina, sitting by designation.


Affirmed and remanded       with   instructions      by    unpublished     per
curiam opinion.


ARGUED: Jonathan Lawrence Katz, Silver           Spring, Maryland, for
Appellant.   Jean Barrett Hudson, OFFICE          OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for          Appellee.   ON BRIEF:
John L. Brownlee, United States Attorney,        Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Louis Antonio Bryant (“Bryant”) was tried by a jury in the

Western   District      of    Virginia     and    convicted       on     eight    charges

stemming from his leadership of a violent drug organization in

Charlottesville, Virginia called “Project Crud” or “PJC.”                               In

this    appeal,       Bryant      raises        numerous     challenges          to    his

convictions and life sentence.                  As explained below, we remand

with instructions for the district court to vacate Bryant’s 21

U.S.C. § 846 conviction, but affirm his other convictions and

life sentence.



                                           I.

       First,   Bryant       argues   that       the   district        court     and   the

government violated his constitutional right to a speedy trial.

In analyzing this argument, we must assess:                       (1) the length of

the    delay;   (2)   the     reasons    for     the     delay;    (3)    whether      the

defendant timely asserted his right to a speedy trial; and (4)

whether the defendant was prejudiced by the delay.                          See, e.g.,

Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v.

Hopkins, 310 F.3d 145, 150 (4th Cir. 2002).

       The first factor is the length of the delay.                        This factor

also is a threshold requirement that the defendant must meet

before we may actually engage in balancing the four factors.

See,    e.g.,   Doggett      v.   United       States,     505    U.S.    647,     651-52

                                           2
(1992).    The defendant must show that the delay in his case was

beyond the ordinary and was presumptively prejudicial.                See id.

      Bryant’s   first    trial   began          sixteen   months    after    his

indictment was unsealed, and his second trial began twenty-two

months after his indictment was unsealed.                  We assume, without

deciding, that this delay is lengthy enough to show presumptive

prejudice, and proceed to balance the four factors.                  See, e.g.,

id. at 652 n.1.     However, in weighing the length of the delay,

we note that we have found that longer periods of delay were not

unreasonable.     See, e.g., Hopkins, 310 F.3d at 150 (concluding

two-year delay was “not uncommonly long”).

      The second factor is the reason for the delay.                    We have

classified    reasons    for   delay       as    “improper,”   “neutral,”     or

“valid.”     See United States v. Grimmond, 137 F.3d 823, 828 (4th

Cir. 1998).      Improper reasons for delay weigh heavily against

the   government,   neutral    reasons          weigh   slightly    against   the

government, and valid reasons weigh in favor of the government.

See id.      An example of a neutral reason is “an understaffed

prosecutor’s office.”      See id.         Here, the government frequently

moved for continuances because this multi-defendant conspiracy

case was complicated.       The district court agreed that the case

was complicated.        Moreover, some of the delay was due to the

court accommodating defense counsel’s schedule.                Ultimately, we



                                       3
consider the reason for the delay to be neutral, and weigh it

slightly against the government.

     The third factor is whether the defendant timely asserted

his right to a speedy trial.                This factor may be weighed in

favor of the government when the defendant waits until late in

the course of events to assert his right.                  See, e.g., Grimmond,

137 F.3d at 829.       Here, Bryant waited until May 2005, ten months

after his indictment was unsealed, to assert his right.                    By that

time, the district court had already calendared the case for

trial in November 2005.        Moreover, Bryant’s first trial began on

November 14, 2005, and ended in a mistrial on November 30, 2005.

On December 16, 2005, Bryant moved to schedule his second trial

no earlier than April 20, 2006.              The court granted defendant’s

motion and scheduled the second trial for May 8, 2006.                     Bryant’s

second trial began on May 8, 2006.                  We weigh this factor in

favor of the government.

    The final factor is prejudice.                  Prejudice can take three

forms:    (1) “oppressive pretrial incarceration”; (2) “anxiety”;

and (3) an impaired ability to mount a defense.                   See Barker, 407

U.S. at 532.       The most serious form of prejudice is impaired

ability   to   mount   a    defense.        See    id.     Although   Bryant   was

incarcerated      pending    his   trial     and    doubtless      suffered    some

anxiety   while    awaiting    his     first      and    second   trial,   nothing

indicates that Bryant’s ability to mount his defense suffered in

                                        4
any   respect.      Notably,    Bryant       does   not    identify        any    witness

whose memory faded, any evidence that was lost, or any similar

issue.     See, e.g., Grimmond, 137 F.3d at 830.                 Indeed, the only

prejudice    that   Bryant     alleges   is     his   pretrial        incarceration.

See Appellant’s Am. Sealed Br. 16–17.                     We conclude that this

factor weighs in favor of the government.

      We    have    carefully    balanced       the       four   Barker          factors.

“[T]hese factors have no talismanic qualities; courts must still

engage in a difficult and sensitive balancing process.”                          Barker,

407 U.S. at 533.        We conclude that there was no violation of

Bryant’s Sixth Amendment right to a speedy trial. 1



                                       II.

      Next, Bryant challenges the jury venire, the petit jury at

his   second   trial,   and     the   prosecutor’s         use   of    a    peremptory

strike during jury selection.                See Appellant’s Am. Sealed Br.

17–18.      Initially, we address Bryant’s challenge to the jury

venire.




      1
       Bryant also raises a Speedy Trial Act claim.     See 18
U.S.C. §§ 3161-3174.   We have reviewed the record concerning
Bryant’s first trial and his second trial.    In light of the
“periods of delay” that are “excluded” in computing time under
the Speedy Trial Act, Bryant’s Speedy Trial Act claim fails.
See id. § 3161(h).



                                         5
      The Constitution requires that a criminal defendant receive

a jury venire that consists of “a fair cross section of the

community.”        See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530

(1975); United States v. Williams, 264 F.3d 561, 567 (5th Cir.

2001).   According to the Supreme Court:

      In order to establish a prima facie violation of the
      fair-cross-section requirement, the defendant must
      show (1) that the group alleged to be excluded is a
      “distinctive” group in the community; (2) that the
      representation of this group in venires from which
      juries are selected is not fair and reasonable in
      relation to the number of such persons in the
      community; and (3) that this underrepresentation is
      due to systematic exclusion of the group in the jury-
      selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

      Bryant’s argument concerning the jury venire fails.                 First,

Bryant bears the burden of establishing a prima facie violation,

see   id.,   yet    he   does   not   allege,   much   less   establish    which

distinctive group was systematically excluded.                See Appellant’s

Am. Sealed Br. 17–18.

      Second, assuming that Bryant is challenging the purported

lack of African-Americans, he presents (and the record before us

contains) no evidence that the percentage of African-Americans

on the jury venire is not fair and reasonable in relation to the

community as a whole.           See id.     Bryant leaves us to speculate

about    whether     the   venire     was   a   reasonable    representation.




                                        6
Speculation is no substitute for evidence.                           See Williams, 264

F.3d at 568–69.

       Even     assuming      that       Bryant        had     met      the      first       two

requirements, he presents no evidence that the alleged exclusion

of African-Americans on the jury venire was systematic, rather

than     a    mere   statistical         anomaly.            Accordingly,        we    reject

Bryant’s fair-cross-section challenge to the jury venire.

       Next, Bryant challenges the racial makeup of the petit jury

at his trial.        Bryant, however, has no constitutional right to a

fair cross-section of the community on his petit jury.                                     See,

e.g., Taylor, 419 U.S. at 538 (“[The Supreme Court] impose[s] no

requirement that petit juries actually chosen must mirror the

community      and   reflect       the   various       distinctive       groups       in     the

population.          Defendants      are    not    entitled       to    a     jury    of     any

particular composition . . . .”).

       Finally,      Bryant        argues    that       the      prosecutor           used     a

peremptory strike in a purposefully discriminatory manner and

thereby violated Batson v. Kentucky, 476 U.S. 79 (1986), and its

progeny.       See Appellant’s Am. Sealed Br. 17–18.                        In particular,

Bryant       challenges      the     prosecutor’s            decision       to    strike       a

prospective juror who, in Bryant’s opinion, was Hispanic.                                    See

id.

       To prevail on a Batson challenge, the defendant must first

demonstrate      a   prima    facie      case     of   purposeful        discrimination.

                                            7
See Batson, 476 U.S. at 96.                   The prima facie case requires the

defendant to show that the prosecutor used a peremptory strike

“to remove a potential juror solely on the basis of the juror’s

gender,     ethnic     origin,       or   race,”    United      States      v.   Martinez-

Salazar,     528      U.S.    304,   315      (2000),     and   that    the      facts    and

circumstances surrounding the peremptory strike give rise to an

inference that the prosecutor acted due to the venire member’s

group identity.         See Batson, 476 U.S. at 96; see also Powers v.

Ohio,     499   U.S.     400,    402      (1991)    (extending     Batson         to   allow

challenges by defendants not of the same group of the venire

member excluded).

      Bryant     contends       that      a   female     venire   member,        who   self-

identified as “White” on the jury questionnaire, was in fact

Hispanic.       See J.A. 127, 150, 152–55. 2                During jury selection,

the     prosecutor      used    a    peremptory        challenge       to    strike      this

prospective juror.            See id. at 143.            Bryant objected and argued

that the prosecutor’s peremptory strike violated Batson.                                  See

id. at 149–50, 152–54; Appellant’s Am. Sealed Br. 17–18.

      The   district         court   considered        Bryant’s    Batson        challenge,

including       his    contention         that     the    woman    in       question      was

Hispanic.       The district court found that she was white and that


      2
       Citations to “J.A.” refer to the joint appendix. Citations
to “A.J.A.” refer to the amended joint appendix.



                                               8
the government’s peremptory strike was neutral.                                      See J.A. 154-

55.    Initially, Bryant complains that the jury questionnaire did

not have a Hispanic or Latino box to check concerning race 3 and

that       the       district     court’s       decision                concerning       the    juror’s

classification             was    based    on       how       the       individual       in    question

appeared and was therefore improperly based on a stereotype.

See id. at 154 (“Your Honor, there’s no such thing as a Hispanic

look, especially coming from a law firm that represents a huge

number of Hispanics.                    It runs all the color hues of skin and

hair.”).             Bryant      also    contends          that         because    the     challenged

individual           had    a    “Hispanic          last      name,”        the    district          court

erroneously failed to ask the individual her race.                                         See id. at

152, 154.

       Even assuming that the challenged individual was a member

of a racial or ethnic minority (e.g., a Latina), the prosecutor

provided         a    neutral      explanation            for     striking         the    prospective

juror.       Specifically, when Bryant raised his Batson challenge,

the    prosecutor           explained         that       he     struck       the     individual        in

question         because         she    was     a        school         psychologist          whom    the

government feared might be overly sympathetic to Bryant.                                              See

J.A. 153.            This reason is a clear, specific, neutral explanation


       3
       The jury survey also                         lacked          a    separate        question      for
ethnicity. See J.A. 125–42.



                                                     9
for the peremptory strike.                See Batson, 476 U.S. at 97–98 &

n.20.     Moreover, we have reviewed the record concerning Bryant’s

Batson challenge to this prospective juror.                             See J.A. 148-55.

The district court did not err in considering and overruling

Bryant’s Batson objection.



                                          III.

        Next, Bryant raises several challenges under Crawford v.

Washington, 541 U.S. 36 (2004).                 In Crawford, the Supreme Court

held that the Confrontation Clause of the Sixth Amendment bars

“admission of testimonial statements of a witness who did not

appear at trial unless [the witness] was unavailable to testify,

and     the   defendant    had     had    a     prior       opportunity         for    cross-

examination.”          541 U.S. at 53–54.               Bryant contends that the

district      court     erroneously        admitted           various      “testimonial”

statements and thereby violated the Sixth Amendment.

                                           A.

        First,    Bryant   argues    that       the        district      court    erred    in

admitting the testimony of Charlottesville Police Officer Web

Stokes    (“Officer      Stokes”)    in       two    respects.           Officer       Stokes’

testimony arose from an incident in which Bryant and Lorenzo

Timberlake       (“Timberlake”)     opened          fire    on    the    home     of    Robert

Pryor    (“Pryor”)      (another    drug       dealer       in    Charlottesville)          in

retaliation      for    Pryor’s    theft       of    drugs       belonging       to    Project

                                           10
Crud.     See, e.g., A.J.A. 1255–75.                  Initially, Bryant contends

that the district court erred when it allowed Officer Stokes to

testify   as     to    what    Glenetta      Smith,       a    government     witness    who

lived near Pryor’s house, said and did during a photo lineup

that    Officer       Stokes   conducted          while       investigating     the   Pryor

house shooting.         See, e.g., Appellant’s Am. Sealed Br. 24–28.

       Officer Stokes testified that shortly after the Pryor house

shooting, he prepared a photo lineup and showed it to Glenetta

Smith.    See A.J.A. 1343.          According to Officer Stokes, Glenetta

Smith identified Bryant in the lineup.                              See id. at 1343–44.

Bryant argues that Officer Stokes’ testimony concerning Glenetta

Smith’s identification of Bryant in the photo lineup violates

Crawford.      See Appellant’s Am. Sealed Br. 26–28.

       In Crawford, the Supreme Court declined to comprehensively

define    what        constitutes       a     “testimonial”           statement.         See

Crawford, 541 U.S. at 68.                   However, “[w]hatever else the term

[testimonial] covers, it applies at a minimum to prior testimony

at a preliminary hearing, before a grand jury, or at a former

trial; and to police interrogations.”                         Id.     Further, the Court

stated    that    “[a]n       accuser       who    makes       a    formal   statement    to

government officers bears testimony in a sense that a person who

makes a casual remark to an acquaintance does not.”                            Id. at 51;

see also Davis v. Washington, 547 U.S. 813, 822 (2006).



                                              11
       We assume, without deciding, that Officer Stokes’ testimony

concerning          Glenetta      Smith’s          identification          of    Bryant      was

“testimonial” and violated Crawford.                         We next analyze whether

the alleged Confrontation Clause error was harmless.                                See, e.g.,

United States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) (“We

need    not     decide        whether        the    district       court        erred     [under

Crawford],      however,         because      we    hold    that     any    error    would   be

harmless       in     light      of    the    other        evidence    inculpating          [the

defendant].”); United States v. Khan, 461 F.3d 477, 496 (4th

Cir.   2006)        (“We    do   not    reach       the    question        of   whether    [the

witness’s] statements were admitted in violation of the Sixth

Amendment because, to the extent that any error occurred, it was

harmless.”).

       “[A] Confrontation Clause violation may be found harmless

on appeal.”          Banks, 482 F.3d at 741 (citing Khan, 461 F.3d at

496; Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring in

the judgment)).             An error is harmless when the reviewing court

can    say     with     confidence         that,      after     considering         all     that

occurred, and without severing the erroneous action from the

whole, the judgment was not substantially swayed by the error.

Banks, 482 F.3d at 741–42; see Khan, 461 F.3d at 496; cf. Fed.

R. Crim. P. 52(a).

       Here,        ample     evidence       beyond        Officer    Stokes’        testimony

concerning Glenetta Smith’s identification of Bryant tied Bryant

                                               12
to the Pryor house shooting.            In particular, Timberlake provided

detailed testimony to the jury about how he and Bryant fired

multiple    rounds    into     Pryor’s          house,    including     considerable

details about their transit, point of attack, weapons used, and

flight from the scene.              See A.J.A. 1255–75.              Although Bryant

complains    that    Timberlake      was    a     cooperating     witness     and   was

therefore     unreliable,       the     jury        was     entitled     to     credit

Timberlake’s testimony.         We conclude that the judgment was not

substantially swayed by Officer Stokes’ testimony about Glenetta

Smith’s     identification      of      Bryant,          even   assuming      (without

deciding)    that    the     district      court     erred      in    admitting     the
                                4
identification testimony.


     4
        Unlike a typical Crawford objection where the declarant
does not testify at trial, Glenetta Smith testified at trial.
In fact, Glenetta Smith testified before Officer Stokes
testified.    During Glenetta Smith’s testimony, she mentioned
that she spoke with Officer Stokes shortly after the shooting,
but she did not testify about her conversation with Officer
Stokes.    See A.J.A. 1192.     Further, during her testimony,
neither the government nor Bryant asked Glenetta Smith about her
identification of Bryant to Officer Stokes.   Cf. Fed. R. Evid.
801(d)(1)(C).    Officer Stokes testified after Glenetta Smith,
and his testimony included Glenetta Smith’s identification of
Bryant.   During Bryant’s case, Bryant did not recall Glenetta
Smith to testify about her alleged identification of Bryant to
Officer Stokes.

     The    parties    dispute  whether  Glenetta    Smith   was
“unavailable” within the meaning of Crawford when the district
court excused her following her testimony.  Compare Appellant’s
Sealed Reply Br. 6 with Appellee’s Am. Sealed Br. 44.        The
parties also dispute whether Bryant (through counsel) withdrew
his Crawford     objection   to Officer Stokes’   identification
(Continued)
                                           13
     Next,    Bryant   argues   that    the   district   court   erroneously

allowed Officer Stokes to testify about what Glenetta Smith told

him she saw on the night of the Pryor house shooting.                    See

Appellant’s Am. Sealed Br. 26–28.           Officer Stokes testified that

Glenetta Smith told him that she had seen “two black males, one

of which was shorter and stocky and very dark-skinned, and then

another one who was taller, probably over six feet, and more

slender and light-skinned.”        See A.J.A. 1337.        Bryant contends

that Officer Stokes’s testimony concerning what Glenetta Smith

said violates Crawford.     See Appellant’s Am. Sealed Br. 26–28.

     Again,    assuming   (without     deciding)   that   Officer    Stokes’

testimony constitutes Crawford error, we conclude that it was

harmless.     Notably, before Officer Stokes testified, Glenetta

Smith testified that she heard a long, loud sound like someone

was beating on a trash can.        See A.J.A. 1190.        She then looked

out of her window and saw a tall, light-skinned black male and a

shorter, dark-skinned black male running away from Pryor’s house

towards Forest Hill Park.       See id. at 1191–92.        Bryant (through

counsel) then cross examined Glenetta Smith about what she heard



testimony and thereby waived (except for plain error) his right
to object. Cf. A.J.A. 1344 (“I withdraw that objection because
I’m   going  to   be   crossing  [Officer   Stokes]  about  [the
identification].”).    Because we conclude that any error in
admitting Officer Stokes’ contested identification testimony was
harmless, we need not decide either of these issues.



                                       14
and    saw    that     evening.           Id.    at    1192–93.           Officer     Stokes’s

testimony concerning what Glenetta Smith said to him essentially

duplicated Glenetta Smith’s testimony.                             In light of Glenetta

Smith’s       testimony,         we    conclude        that      the    judgment      was       not

substantially        swayed       by     Officer      Stokes’         testimony     concerning

what Glenetta Smith said to him.

                                                B.

       Next,       Bryant    argues       that       the       district    court    erred        in

admitting      two    documents         into     evidence        over     his    Crawford       and

hearsay      objections:          a    record     of       a    gun     transaction       and     a

declaration of non-records from the Internal Revenue Service.

See Appellant’s Am. Sealed Br. 28.                         First, Bryant contends that

the district court erred when it admitted an ATF Form 4473 from

a gun shop connected with the purchase of a .454 pistol.                                        See

id.

       The dispute concerns Bryant’s connection to a .454 pistol.

Everette       Smith        (a    convicted           felon       and     drug     dealer        in

Charlottesville) testified that he convinced Sam Jones (“Jones”)

(a man with no prior felony convictions) to purchase a .454

pistol       for    Everette          Smith.         See       A.J.A.    1203-07,     1212–14.

Everette Smith explained that, in exchange for Jones purchasing

the weapon, he paid Jones $200 worth of crack cocaine.                                    Id. at

1206.       Everette Smith also testified that he accompanied Jones

to    the    gun    shop     in       approximately        November       2003     when     Jones

                                                15
completed the paperwork to purchase the weapon and paid for the

weapon.       Id. at 1206-07.        Everette Smith also accompanied Jones

when they returned to the shop to pick up the weapon.                        Id. at

1207.        Everette Smith testified that he later sold the .454

pistol to Bryant for two pounds of marijuana.                  See id. at 1212–

14.      Bryant (through counsel) cross examined Everette Smith.

Id. at 1222-36.         Sam Jones did not testify.

        To    corroborate     Everette    Smith’s    testimony       about    Jones

purchasing the weapon for Smith and to help rebut the defense

contention that Smith was fabricating the story about obtaining

the   weapon     from    Jones   and   later    selling   it   to    Bryant,     the

government introduced Jones’ application to purchase the .454

pistol as a business record from the gun shop.                 See id. at 1482–

88.     The application is an ATF Form 4473 that Jones completed

before purchasing the weapon.            See id. at 1488.         The government

introduced the ATF Form 4473 through ATF Agent John Stoltz, who

testified that he received the ATF Form 4473 from the president

of the gun shop.          Id. at 1482-83.       As part of the government’s

proof,       Agent   Stoltz   also   provided   an   affidavit      from   the   gun

shop’s       president    consistent     with   Federal    Rule      of    Evidence




                                         16
902(11). 5   See id. at 1483–84.    Bryant objected at trial to the

ATF Form 4473, and argues on appeal, that this document violates

Crawford and Federal Rules of Evidence 802 and 805.       See id.;

Appellant’s Am. Sealed Br. 28.

     As for the Crawford objection, the ATF Form 4473 contains

Sam Jones’ application to purchase a firearm.       A.J.A. 1487–88.


     5
         Rule 902(11) provides:

     Certified domestic records of regularly conducted
     activity.—The original or a duplicate of a domestic
     record of regularly conducted activity that would be
     admissible under Rule 803(6) if accompanied by a
     written   declaration of   its  custodian  or  other
     qualified person, in a manner complying with any Act
     of Congress or rule prescribed by the Supreme Court
     pursuant to statutory authority, certifying that the
     record—

     (A) was made at or near the time of the occurrence of
     the matters set forth by, or from information
     transmitted by, a person with knowledge of those
     matters;

     (B) was kept in the course of the regularly conducted
     activity; and

     (C) was made by the regularly conducted activity as a
     regular practice.

     A party intending to offer a record into evidence
     under this paragraph must provide written notice of
     that intention to all adverse parties, and must make
     the record and declaration available for inspection
     sufficiently in advance of their offer into evidence
     to provide an adverse party with a fair opportunity to
     challenge them.

Fed. R. Evid. 902(11).




                                   17
Agent Stoltz explained that an ATF Form 4473 “is a firearms

transaction form that is filled out at the time of purchase by

all people who wish to purchase firearms.                       It basically lists

the person’s name, address, and has various questions that need

to be filled out [by and regarding the purchaser] at the time of

purchase.”    Id. at 1488.         The form identifies Sam Jones as the

purchaser.    See id.

     Even    if   we   assume      that    the       Form    4473     was    testimonial

hearsay with respect to Bryant, Everette Smith testified that he

accompanied   Jones     to   buy    the    weapon,          watched    Jones      complete

paperwork to buy the weapon, went with Jones to pick up the

weapon at the gun shop, and later sold the weapon to Bryant.

See A.J.A. 1203–07, 1212–14.              Regardless of the ATF Form 4473

and regardless of the person from whom Everette Smith got the

weapon, Smith’s testimony tied Bryant to the weapon.                             Moreover,

Bryant had full and fair opportunity to cross examine Everette

Smith.    See id. at 1222-36.         Accordingly, even if admitting the

Form 4473 was Crawford error, the error was harmless.                                 See,

e.g., Banks, 482 F.3d at 741–42; Khan, 461 F.3d at 496; cf. Fed.

R. Crim. P. 52(a).

     Bryant also argues that admitting the Form 4473 violates

Federal   Rules   of    Evidence     802       and    805    because        it   “contains

multiple levels of hearsay.”          See Appellant’s Am. Sealed Br. 28;

see also A.J.A. 1483.           The government responds that the Form

                                          18
4473 is an admissible business record.                   See Appellee’s Am. Br.

40–41; Fed. R. Evid. 803(6).

     Even     were     we    to     conclude      that      the   district    court

erroneously    admitted      the    Form    4473,     the    error   was   harmless.

Ample evidence beyond the Form 4473 tied Bryant to the .454

pistol.     That evidence included Everette Smith’s testimony that

he sold the .454 pistol to Bryant in exchange for marijuana.

     Next,    Bryant    contends      that      the   district    court    erred    in

admitting a “certification of nonexistence of records” (“CNR”)

from the Internal Revenue Service (“IRS”) indicating that he had

not paid income taxes during times relevant to the indictment,

and thus inviting the jury to draw the inference that Bryant

derived his income and various assets from selling drugs.                          See

Appellant’s Am. Sealed Br. 28.              Bryant argues that CNRs are “the

very essence of testimonial evidence.”                Id.

     The     district       court    considered        and    rejected     Bryant’s

Crawford challenge to the IRS CNR.               See United States v. Bryant,

No. 3:04-CR-47, 2006 WL 1700107, at *1–*4 (W.D. Va. June 15,

2006) (unpublished).          In rejecting the Crawford argument, the

district court relied on cases from the Fifth and Ninth Circuits

analyzing CNRs from Immigration and Customs Enforcement (“ICE”).

See id. at *2 (citing United States v. Cervantes-Flores, 421

F.3d 825, 830–34 (9th Cir. 2005) (per curiam); United States v.

Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (per curiam)).

                                           19
Since the district court’s decision, other circuit courts have

concluded that ICE CNRs are nontestimonial.                          See United States

v. Burgos, 539 F.3d 641, 644–45 (7th Cir. 2008) (“The reported

cases from the other circuits that have considered the question

are unanimous in holding that an alien's warrant of deportation

and CNR are nontestimonial business records not subject to the

requirements         of     the    Confrontation      Clause       under     Crawford.”);

accord United States v. Mendoza-Orellana, 133 F. App’x 68, 70

(4th Cir. 2005) (per curiam) (unpublished) (finding that ICE CNR

admitted        as        self-authenticating         public         record      was     not

testimonial under Crawford).

       In opposition to the analysis concerning ICE CNRs, Bryant

notes    that     this      case    involves     an   IRS   CNR.       See    Appellant’s

Sealed Reply Br. 8.               Bryant then argues that an IRS CNR is more

likely to be inaccurate because the IRS (unlike ICE) is a huge

organization responsible for keeping records on all taxpayers in

America.     See id.

       Initially, we question the premise that the IRS is more

likely to commit record-keeping errors than ICE.                              Certainly,

nothing      in      the     record      supports      this        conclusion.          More

importantly, whether the IRS is more likely to commit record-

keeping errors than ICE does not illuminate whether an IRS CNR

or an ICE CNR is testimonial under Crawford.                         Cf. Crawford, 541

U.S.    at   56      (noting      that   some    examples     of    hearsay    “by     their

                                                20
nature were not testimonial—for example, business records”).                             As

to that issue, we conclude that the IRS CNR is not testimonial

under    Crawford.         See,   e.g.,         Burgos,    539      F.3d    at     644-45;

Cervantes-Flores, 421 F.3d at 830–34; Rueda-Rivera, 396 F.3d at

680; see also Udeozor, 515 F.3d at 268–70.

     Alternatively, even if we assume that the district court

erroneously      admitted      the    IRS       CNR,    the     alleged         error   was

harmless.      The     government       presented       considerable       evidence      of

Bryant’s    lavish      lifestyle        and     absence       of   legitimate          work

history, even without the IRS CNR.                  See, e.g., Bryant, 2006 WL

1700107,    at     *3–*4      (recounting         the     evidence         of     Bryant’s

unexplained      wealth,      including     $20,000       in   cash    found       in    his

Cadillac Escalade).           In sum, we reject Bryant’s Crawford and

hearsay arguments. 6



                                           IV.

     Finally,     we    address      one    housekeeping         matter.         The    jury

convicted     Bryant     on     eight      counts,      including      both        a    drug

conspiracy in violation of 21 U.S.C. § 846 (i.e., count 1), and

of engaging in a continuing criminal enterprise in violation of


     6
        Bryant (through counsel and in his pro se brief) raised
numerous other arguments.     We have carefully examined all of
these arguments.    The arguments lack merit and do not warrant
further discussion.



                                           21
21 U.S.C. § 848(a) and (b) (i.e., count 2). 7                    The district court

sentenced Bryant to life in prison for the continuing criminal

enterprise conviction, but did not impose a sentence for the

section 846 conviction.          See J.A. 419.

     In    failing    to    impose     a        sentence    on   the     section     846

conviction, the district court acted properly.                         In Jeffers v.

United    States,    432    U.S.    137     (1977)        (plurality     opinion),      a

plurality of the Supreme Court held that imposing sentence on

both a 21 U.S.C. § 846 conspiracy count and a 21 U.S.C. § 848

continuing    criminal      enterprise          (“CCE”)     count      was     improper,

because   Congress    did    not     intend        cumulative       penalties       under

section 846 and section 848.           See 432 U.S. at 156 (“Section 848

itself reflects a comprehensive penalty structure that leaves

little    opportunity      for     pyramiding        of    penalties         from   other

sections of the Comprehensive Drug Abuse Prevention and Control


     7
       Bryant was convicted of (1) conspiracy to distribute or
possess with intent to distribute 50 grams or more of cocaine
base, 5 kilograms or more of powder cocaine, and marijuana (21
U.S.C. §§ 846, 841(a)(1), 859, 860, and 861); (2) engaging in a
continuing criminal enterprise (21 U.S.C. § 848 (a) and (b));
(3) conspiracy to conduct and participate in a racketeer
influenced and corrupt organization (RICO) (18 U.S.C. §
1962(d)); (4) possession with intent to distribute marijuana (21
U.S.C. § 841 (a)(1)); (5) possession of a firearm during and in
relation to a drug trafficking crime (18 U.S.C. § 924(c)); (6)
attempted murder, violent crime in aid of racketeering activity
(18 U.S.C. §§ 2 and 1959(a)(5)); and (7) two counts of threat to
murder, violent crime in aid of racketeering activity (18 U.S.C.
§§ 2 and 1959(a)(4)). See J.A. 417-18.



                                           22
Act of 1970.”); see also Rutledge v. United States, 517 U.S.

292, 300 (1996) (“For the reasons set forth in Jeffers, . . . we

hold that this element of the CCE offense requires proof of a

conspiracy that would also violate § 846.                   Because § 846 does

not require proof of any fact that is not also a part of the CCE

offense, . . . conspiracy as defined in § 846 does not define a

different offense from the CCE offense defined in § 848.”).                       We

have   applied      Jeffers    to   require   that,    where     a   defendant    is

convicted of both a section 846 count and a section 848 count,

the section 846 conviction must be vacated.                     See, e.g., United

States   v.    Heater,   63    F.3d    311,   318   (4th    Cir.     1995);   United

States v. Porter, 821 F.2d 968, 978 (4th Cir. 1987) (“Congress

did not intend that an individual be punished under both § 846 .

. . and § 848 . . . .”).              In this case, Heater applies.           Thus,

as in Heater, “[w]e need only take the next step and instruct

the district court to vacate the conspiracy conviction itself.”

63 F.3d at 318.



                                         V.

       For    the    reasons    explained     above,       we    affirm   Bryant’s

convictions and sentence.             Because we affirm Bryant’s 21 U.S.C.

§ 848 conviction, we remand this action with instructions for




                                         23
the   district   court   to    vacate   Bryant’s   21   U.S.C.   §   846

conviction.   We affirm the balance of the judgment.

                              AFFIRMED AND REMANDED WITH INSTRUCTIONS




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