PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 95-5464
ARNOLD L. H. AMBERS, JR., a/k/a
Heavy,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-28)

Argued: April 5, 1996

Decided: June 3, 1996

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Michael and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: John F. McGarvey, Richmond, Virginia, for Appellant.
John A. Horn, Law Intern, University of Virginia School of Law,
Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________
OPINION

WILKINSON, Chief Judge:

Appellant Arnold L. H. Ambers, Jr. was convicted of conspiracy
to possess and distribute crack cocaine, and was sentenced to 248
months in prison. On appeal, Ambers asserts that the district court
abused its discretion by barring him from discussing the operation of
the Sentencing Guidelines when cross-examining government wit-
nesses. He also challenges his sentence, alleging that he should have
received a downward departure under 18 U.S.C. § 3553(b), and that
enhancing his sentence based on a prior conviction violated the Dou-
ble Jeopardy Clause. We affirm in all respects.

I.

On September 8, 1994, a grand jury indicted Ambers and several
other individuals of conspiracy to possess and distribute crack
cocaine. 21 U.S.C. § 841(a)(1). Trial began on February 13, 1995.
During his opening statement, Ambers' counsel called into question
the motivation of several government witnesses who were to testify
after having executed plea agreements:

         They will be testifying because they are getting something
         out of it, and the something that anybody who is charged in
         these cases is going to get out of it is the hope of what is
         called a 5K1.

         Now, when someone is charged with conspiracy, that car-
         ries ten to life. Under the facts as presented by the United
         States Attorney's office, what the majority of these people
         are going to be coming in at is over 1.5 kilograms of crack
         cocaine. That is what is called Level 38. Now, Level 38
         ....

The government objected at this point, and the district judge
instructed Ambers' counsel that "I'm not going to permit you to argue
penalty."

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The judge clarified his position in a conference in chambers. "[T]he
defense is certainly entitled to show that there is a serious potential
penalty afflicting or potentially afflicting these witnesses," he
advised. He thus thought it "proper to inquire about whether they're
facing a serious penalty, and serious in terms of time in prison, so
on," including "the fact that the penalty is ten years to life." But, he
cautioned, "[w]e're not going into the Sentencing Guidelines at all,"
because such a discussion would only confuse the jury.

During the trial, the government sought to establish that Ambers
supplied crack cocaine to a large distribution ring in Fluvanna
County, Virginia. Several law enforcement officers described
Ambers' role in the drug conspiracy. The government also presented
the testimony of thirteen witnesses who had executed plea agree-
ments, many of whom were co-conspirators. Some testified that they
had bought crack cocaine from Ambers, others that they had seen
Ambers sell crack cocaine, and others that they had heard that
Ambers supplied crack cocaine to local dealers.

In his cross-examination of these witnesses, Ambers' counsel
asked whether they hoped to gain favorable sentencing treatment as
a result of their testimony. He questioned several about the nature of
their plea agreements, including the minimum and maximum penal-
ties for their offenses. He also asked about provisions in their plea
agreements allowing for a reduced sentence under U.S.S.G. § 5K1.1
for providing "substantial assistance" to the government. In addition,
Ambers' counsel introduced into evidence the plea agreements of
seven of the witnesses.

On February 16, 1995, the jury found Ambers guilty of conspiring
to distribute crack cocaine. The sentencing hearing was held on May
26. The applicable range under the Sentencing Guidelines for
Ambers' offense was 235 to 292 months in prison. Ambers, though,
had a prior conviction in 1989 for possession of cocaine with intent
to distribute, and was thus subject to a minimum sentence under 21
U.S.C. § 841(b)(1)(A) of 240 months. The district judge imposed a
sentence of 248 months. Ambers appeals both his conviction and his
sentence.

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II.

Ambers' first claim is that the district judge improperly prevented
him from questioning government witnesses about the precise effect
of the Sentencing Guidelines on their pending sentences. Conse-
quently, Ambers alleges, he was unable to sufficiently expose a possi-
ble motivation for their testimony. We disagree. A district court's
restrictions on cross-examination are reviewed for abuse of discretion.
See United States v. Piche, 981 F.2d 706, 716 (4th Cir. 1992), cert.
denied, 508 U.S. 916 (1993). Here, the district court acted within the
scope of its considerable discretion in fashioning the reach of
Ambers' cross-examination.

To be sure, "the exposure of a witness' motivation in testifying is
a proper and important function of the constitutionally protected right
of cross-examination." Davis v. Alaska, 415 U.S. 308, 316-17 (1974).
Nevertheless, "trial judges retain wide latitude insofar as the Confron-
tation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things, harass-
ment, prejudice, confusion of the issues, the witness' safety, or inter-
rogation that is repetitive or only marginally relevant." Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986); see United States v. Morsley,
64 F.3d 907, 918 n.10 (4th Cir. 1995) (commenting on"the broad lati-
tude afforded a trial judge in controlling cross-examination"), cert.
denied, 116 S. Ct. 749 (1996).

These same principles hold true when cross-examination pertains
to the motivation of a witness testifying for the government. Based on
the sorts of concerns mentioned above, trial judges have sometimes
exercised their broad discretion to limit inquiry into the potential sen-
tences faced by a cooperating witness. See United States v. Luciano-
Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (upholding restriction
of cross-examination on penalty witness would have faced had gov-
ernment not dropped charges); United States v. Nelson, 39 F.3d 705,
707-09 (7th Cir. 1994) (upholding restriction of cross-examination on
penalty witness would have faced without executing plea agreement);
Brown v. Powell, 975 F.2d 1 (1st Cir. 1992) (same), cert. dismissed,
506 U.S. 1073 (1993); United States v. Dadanian , 818 F.2d 1443,
1449 (9th Cir. 1987) (same), modified on other grounds, 856 F.2d
1391 (1988).

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The critical question, we have observed, is whether the defendant
is allowed an opportunity to examine a witness'"subjective under-
standing of his bargain with the government,""for it is this under-
standing which is of probative value on the issue of bias." Hoover v.
Maryland, 714 F.2d 301, 305, 306 (4th Cir. 1983). Here, Ambers had
ample freedom to explore the government witnesses' subjective
motive for testifying. His counsel asked the witnesses whether they
were testifying to gain a reduced sentence, quizzed them about their
understanding of the substantial assistance reduction under U.S.S.G.
§ 5K1.1, questioned them about their plea agreements, and asked
them about the penalties they faced.* He also requested that they read
from their plea agreements and entered several of the agreements into
evidence. In his closing argument, Ambers' counsel asserted: "Every
one of those witnesses had an absolute motive to lie. Every one of
them knew the scenario. Every one of them knew what ultimately had
to be said to get that substantial assistance motion, and every one of
them did it."

The sole restriction imposed on Ambers was on examining pre-
cisely how a witness' potential sentencing reduction fit into the struc-
ture of the Sentencing Guidelines. He could not explain, for instance,
that a witness facing a sentence of ten years to life was being treated
as a "Level 38" offender. This limitation was simply meant to avoid
distracting the jury with a technical analysis of the Guidelines, an
analysis that would shed little light on a witness' subjective under-
_________________________________________________________________
*Some of the questions Ambers' counsel asked of various witnesses
include: "I think you said you're here today trying to help yourself; cor-
rect?" . . . "So you do expect to gain something out of your testimony
for this?"; "And you agreed to give truthful testimony in the hopes of
receiving a 5K1?"; "Within that plea agreement it indicates that if you
cooperate with the government, you will receive what's called . . . a 5K1
motion; is that correct?"; "[P]art of why you're here today is to get
what's called a 5K1 motion; is that correct?";"[D]o you understand what
a 5K1 motion is?"; "[Y]ou read over your plea agreement; is that correct?
. . . And when [the U.S. Attorney] was asking you whether or not you
expected to get something out of this, you were made aware of what the
. . . penalties are here?"; "The minimum mandatory and maximum penal-
ties for this offense [are] . . . ten to life; is that correct?"; "[Y]ou testified
here today that you had hopes that someone would be lenient on you as
far as time; is that correct?"

                    5
standing of his plea agreement. Such grounds for controlling cross-
examination are appropriate. Van Arsdall, 475 U.S. at 679 (allowing
restrictions designed to prevent "confusion of the issues" and "repeti-
tive" questioning). When faced with identical circumstances, the Sec-
ond Circuit ruled:

          We also reject the contention that the trial court erred when
          it barred the questioning of cooperating witnesses as to what
          effect the Guidelines would have on their sentences. The
          court permitted cross-examination of those witnesses as to
          their plea agreements, the statutory maximum sentences
          they faced, and the benefits they hoped to gain from cooper-
          ation. The court was well within its discretion in ruling that
          the vagaries of Guidelines calculations were not a proper
          subject for cross-examination.

United States v. Rosa, 11 F.3d 315, 336 (2d Cir. 1993), cert. denied,
114 S. Ct. 1565 (1994).

We agree with this reasoning. To entitle defense counsel to explore
the intricacies of the Guidelines scheme on cross-examination might
do much to confuse lay jurors and little to enlighten them. The district
court allowed Ambers abundant opportunity to explore the motivation
of the government witnesses in testifying. The court plainly did not
abuse its discretion in preventing Ambers from delving into the
details of the Sentencing Guidelines.

III.

In his second assignment of error, Ambers asserts that he should
have received a downward departure in his sentence under 18 U.S.C.
§ 3553(b). That provision authorizes departure where "there exists an
aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different
from that described." 18 U.S.C. § 3553(b); see U.S.S.G. § 5K2.0.
Ambers bases his argument on the Commission's recent recommen-
dation that Congress abolish the sentencing distinction in the Guide-
lines between crack and powder cocaine, a recommendation that
Congress has since rejected. See Pub. L. No. 104-38, 109 Stat. 334

                    6
(1995). The Commission's proposal, Ambers contends, illustrates that
it had failed to consider the appropriateness of the crack-powder dis-
tinction when initially drafting the Guidelines.

Ambers' claim fails for many reasons. Simply because the Com-
mission proposes a revision does not mean that it failed adequately to
consider the existing policy; the Commission did consider the crack-
powder distinction when formulating the Guidelines. See United
States v. Alton, 60 F.3d 1065, 1068-69 (3d Cir.), cert. denied, 116 S.
Ct. 576 (1995). And at any rate, the broad issue of proper sentencing
levels for crack cocaine offenses does not involve the sort of individ-
ual, case-specific mitigating circumstance justifying a departure under
18 U.S.C. § 3553(b). See United States v. Bynum, 3 F.3d 769, 775
(4th Cir. 1993), cert. denied, 114 S. Ct. 1105 (1994). Finally, Con-
gress has rejected the Commission's recommendation to abolish the
crack-powder distinction, voting instead to preserve the higher sen-
tences for crack-related crimes. Pub. L. No. 104-38, 109 Stat. 334
(1995). And "every appellate court that has considered the matter has
held that the impact of the guideline treatment of crack cocaine is not
a proper ground for downward departures." Alton, 60 F.3d at 1070;
see Bynum, 3 F.3d at 769, 774-75. For these reasons, Ambers plainly
does not qualify for a downward departure under 18 U.S.C.
§ 3553(b).

IV.

Ambers also challenges his sentence on double jeopardy grounds.
His argument stems from the use of his 1989 conviction to subject
him to the mandatory minimum sentence prescribed by 21 U.S.C.
§ 841(b)(1)(A). The prior offense, Ambers observes, was one of the
overt acts supporting the conspiracy charge against him. Use of that
same offense to enhance his sentence under the mandatory minimum
statute, Ambers asserts, amounts to punishing him twice for the same
conduct, in violation of double jeopardy principles.

This argument, however, misconceives the nature of a conspiracy
offense. A conspiracy is a distinct crime from the overt acts that sup-
port it. See United States v. Felix, 503 U.S. 378, 389-92 (1992);
United States v. Bayer, 331 U.S. 532, 542 (1947) ("the same overt
acts charged in a conspiracy count may also be charged and proved

                    7
as substantive offenses"). As a result, "prosecution of a defendant for
conspiracy, where certain of the overt acts relied upon by the Govern-
ment are based on substantive offenses for which the defendant has
been previously convicted, does not violate the Double Jeopardy
Clause." Felix, 503 U.S. at 380-81.

Enhancing the sentence for conspiracy because of a prior convic-
tion, where one of the overt acts supporting the conspiracy resulted
in the prior conviction, likewise presents no double jeopardy problem.
The enhancement increases the sentence for the current offense (con-
spiracy), not the sentence for the distinct, prior offense: "Enhance-
ment statutes, whether in the nature of criminal history provisions
such as those contained in the Sentencing Guidelines, or recidivist
statutes which are common place in state criminal laws, do not change
the penalty imposed for the earlier conviction." Nichols v. United
States, 114 S. Ct. 1921, 1927 (1994); see Gryger v. Burke, 334 U.S.
728, 732 (1948). Based on this logic, the Supreme Court has consis-
tently rejected double jeopardy challenges to sentencing schemes that
enhance a defendant's sentence because of a prior conviction. Witte
v. United States, 115 S. Ct. 2199, 2206 (1995).

The application of 21 U.S.C. § 841(b)(1)(A) against Ambers thus
does not punish him twice for the same offense. His conspiracy
offense and his prior offense are distinct crimes. The statute simply
increases the sentencing range for his current conviction based on a
distinct, prior offense, the sort of penalty enhancement that presents
no double jeopardy issue.

V.

For the foregoing reasons, the judgment in this case is

AFFIRMED.

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