PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                No. 99-4567

PAUL ANDREW STOKES, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                No. 99-4576

ROBERT LARRY JEFFREY, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-98-145)

Argued: November 3, 2000

Decided: August 17, 2001

Before NIEMEYER and KING, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge for
the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Seymour concurred.

_________________________________________________________________
COUNSEL

ARGUED: Keith Loren Kimball, COLGAN & KIMBALL, P.L.C.,
Virginia Beach, Virginia, for Appellant Jeffrey; Robert Bryan Rigney,
PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia, for Appel-
lant Stokes. Janet S. Reincke, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Billy B. Ruhling, II, Third Year Law Student, Nor-
folk, Virginia, for Appellee.

_________________________________________________________________

OPINION

KING, Circuit Judge:

Robert Larry Jeffrey, Jr., and Paul Andrew Stokes, Jr., appeal their
convictions and sentences on multiple drug-related offenses. Jeffrey
and Stokes were each convicted of one count of conspiracy to possess
with intent to distribute and to distribute 5 kilograms or more of a
mixture containing cocaine ("cocaine") and 50 grams or more of a
mixture containing cocaine base ("crack"), in violation of 21 U.S.C.
§ 846. Additionally, Jeffrey was convicted of six counts of distribut-
ing 50 grams or more of crack, one count of distributing 500 grams
or more of cocaine, and one count of distributing a detectable amount
of cocaine. Stokes was also convicted of four counts of distributing
50 grams or more of crack, one count of distributing 5 grams or more
of crack, and two counts of possessing with intent to distribute 50
grams or more of crack. The substantive trafficking counts all consti-
tuted violations of 21 U.S.C. § 841. Jeffrey and Stokes raise numer-
ous issues on appeal. For the reasons that follow, we affirm the
convictions and the sentences imposed by the district court.

I.

Jeffrey and Stokes were part of a network of drug distributors who,
between 1991 and 1997, dealt in cocaine and crack in Portsmouth,
Virginia. A grand jury in the Eastern District of Virginia returned a
twenty-two-count superseding indictment against Jeffrey and Stokes
on January 11, 1999, a month after proceedings on similar charges

                  2
against them ended in a mistrial. The superseding indictment charges
specific threshold drug quantities for each count; for example, Count
Seven, against Jeffrey, alleges that he distributed"50 grams or more
of a mixture and substance containing a detectable amount of cocaine
base, commonly known as `crack[.]'" J.A. 33.

On March 24, 1999, at the close of a seven-day jury trial, Jeffrey
was convicted on nine counts and Stokes on eight counts. At sentenc-
ing, the district court determined, by a preponderance of the evidence,
that Jeffrey and Stokes were each responsible for more than 1.5 kilo-
grams of crack. The resulting range for each defendant, under the
U.S. Sentencing Guidelines Manual (the "Guidelines" or "U.S.S.G."),
was 292 to 365 months' imprisonment. On August 4, 1999, the court
sentenced Jeffrey to prison terms of 292 months on each of eight
counts and 240 months on one count, all to run concurrently. The
court sentenced Stokes to 292 months' imprisonment on each of eight
counts, each term to also run concurrently.1 1 They have appealed their
convictions and sentences, and we possess jurisdiction over their
appeals pursuant to 28 U.S.C. § 1291.

II.

First, Jeffrey and Stokes maintain that their convictions and prison
sentences violate the rule established in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) (holding that "[o]ther than the fact of a 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").

A.

At trial, the jury was instructed that specific threshold drug quanti-
ties were charged in the indictment for each count. However, the dis-
trict court also delivered an instruction (the "quantity instruction")
that permitted the jury to find Jeffrey and Stokes guilty with proof of
merely any "measurable amount" of the relevant substance.2  2 The
_________________________________________________________________
1 The court also imposed terms of supervised release and financial pen-
alties against Jeffrey and Stokes on each count.
2 The quantity instruction presented to the jury provides:

        The evidence received as to each count in this case need not

                  3
quantity instruction was included at the Government's request and
over the objections of trial counsel. In objecting, one of the defense
attorneys explained:

        So I think if the [G]overnment chooses to indict that way
        and put specific quantities in, that they cannot then have a
        jury instruction to come behind that in an attempt to show
        or tell the ladies and gentlemen of the jury that, you know,
        those amounts really don't mean anything. If they didn't
        mean anything, they [the Government] shouldn't have
        indicted that.

J.A. 1073. The district court, however, agreed with the Government
and gave the quantity instruction because, at the time, drug quantity
was considered a sentencing issue that did not require jury determina-
tion. See, e.g., United States v. Powell , 886 F.2d 81, 85 (4th Cir.
1989) ("[B]ecause the quantity of the drug went to the question of
Powell's sentence, rather than his guilt, the government only had to
prove that quantity by a preponderance of the evidence."). Though the
jury indeed may have found sufficient proof of the charged drug
quantities, it is impossible to make this determination from the face
of the jury's general verdict.

Subsequent to Jeffrey and Stokes's 1999 jury trial, and while this
appeal was pending, the Supreme Court rendered its Apprendi deci-
sion. Though Apprendi involved a New Jersey hate crimes statute, we
recently concluded that its rule applies with regard to sentencing
under 21 U.S.C. § 841. See United States v. Promise, 255 F.3d 150
_________________________________________________________________
        prove the actual amount of the controlled substance that was part
        of the alleged transaction or the exact amount of the controlled
        substance alleged in the indictment to have been possessed with
        intent to distribute or to have been distributed by the defendant
        under consideration.

         The government must prove beyond a reasonable doubt, how-
        ever, that a measurable amount of a controlled substance was, in
        fact, knowingly and intentionally possessed with the intent to
        distribute or distributed by the defendant under consideration.

Tr. of Jury Charge, at 16-17.

                   4
(4th Cir. 2001) (en banc).3
                          3 That is, where -- as here -- the offenses
involved cocaine and crack, but death or bodily injury did not result
from their use and the defendant had no prior felony drug convictions,
the defendant might be sentenced under:

        (1) § 841(b)(1)(A) (providing a sentence of ten years to life
        in prison for offenses involving at least 5 kilograms of
        cocaine or 50 grams of crack); or

        (2) § 841(b)(1)(B) (five to forty years' imprisonment for at
        least 500 grams of cocaine or 5 grams of crack); or

        (3) § 841(b)(1)(C) (up to twenty years' imprisonment for
        any identifiable amount of cocaine or crack).4  4

Under Promise, in order to sentence the defendant pursuant to
§ 841(b)(1)(A) or (B), "the specific threshold quantity must be treated
as an element of an aggravated drug trafficking offense, i.e., charged
in the indictment and proved to the jury beyond a reasonable doubt."
Promise, 255 F.3d at 156-157. Otherwise, the defendant must be sen-
tenced under the third alternative, the default provision of the statute
contained in § 841(b)(1)(C). See id. at 157 n.7.

Jeffrey and Stokes were each sentenced under § 841(b)(1)(A) and
(B) on eight counts, even though the jury did not find the threshold
drug quantities that would justify invoking these subsections.5 5 That is,
we can discern from its verdict only that the jury found that the
offenses involved "a measurable amount" of either cocaine or crack
_________________________________________________________________
3 Soon after oral argument in this case, we granted rehearing en banc
in Promise and a companion case, United States v. Angle, 254 F.3d 514
(4th Cir. 2001) (en banc). Thus, neither the appellants nor the Govern-
ment had the benefit of our decisions in Promise and Angle in preparing
their briefs and oral argument.
4 Section 841(b)(1) provides penalties not only for violations of § 841,
but also for transgressions of § 846 that involve a conspiracy to commit
an offense defined in § 841. Therefore, each of the crimes at issue in this
case is punishable under § 841(b)(1).
5 Jeffrey was properly sentenced under § 841(b)(1)(C), to the maximum
prison term of 240 months, on the remaining count.

                   5
-- crimes punishable, with a twenty-year maximum, solely under
§ 841(b)(1)(C). The district court, however, imposed concurrent
prison terms of 292 months on each of these counts-- fifty-two
months more than authorized by § 841(b)(1)(C). As we concluded in
Promise, such sentencing constituted error under Apprendi. See
Promise, 255 F.3d at 159.

B.

Because Jeffrey and Stokes timely objected at trial to the quantity
instruction, they are, unless we determine that the Apprendi error was
harmless, entitled to some appellate relief. See Fed. R. Crim. P. 52(a)
("Any error . . . which does not affect substantial rights shall be disre-
garded."). In undertaking harmless error review, we impose the bur-
den on the Government to show, beyond a reasonable doubt, that the
error did not affect Jeffrey's and Stokes's substantial rights or, in
other words, that it did not prejudice them. See United States v. Has-
tings, 134 F.3d 235, 240-41 (4th Cir. 1998)."Prejudice," in this con-
text, means that the error "actually affected the outcome of the
proceedings[,]" id. at 240, i.e., the defendants' sentences were "longer
than that to which [they] would otherwise be subject[,]" United States
v. Angle, 254 F.3d 514 (4th Cir. 2001) (en banc). See also United
States v. Stewart, ___ F.3d ___, No. 98-4155(L), 2001 WL 760262,
at *16-17 (4th Cir. July 6, 2001).6 6
_________________________________________________________________
6 It is noteworthy that Jeffrey and Stokes are represented by different
court-appointed lawyers on appeal than those who defended them at trial,
and that their appellate counsel inaccurately maintained before us that
their predecessors at trial had failed to object to the quantity instruction.
See supra Part II.A. This oversight by appellate counsel was perpetuated
by the Assistant United States Attorney -- who represented the Govern-
ment both at trial and on appeal -- who also claimed no objection was
made and who herself had urged the district court to give the quantity
instruction.

Absent our discovery of the objection made by trial counsel, the
Apprendi errors would have been subject to review only for plain error,
and the burden would have been on Jeffrey and Stokes to prove preju-
dice, rather than on the Government to establish that there were none.
See Promise, 255 F.3d at 160; United States v. Strickland, 245 F.3d 368,
379-80 (4th Cir. 2001) (explaining the distinctions between harmless and

                  6
The Government maintains that Jeffrey and Stokes were not preju-
diced, because the evidence of drug quantity was uncontested and
overwhelming. See, e.g., United States v. Montgomery, ___ F.3d ___,
No. 98-4688(L), 2001 WL 810346, at *14 (4th Cir. July 17, 2001)
(citing Stewart for the principle that "if drug quantity was charged in
the indictment . . . then failure to submit drug quantity to the jury does
not affect a defendant's substantial rights if the trial produced `uncon-
tested and overwhelming evidence' of drug quantity sufficient to sus-
tain the sentence."). We need not pursue this line of inquiry, however,
because it is clear, pursuant to our analysis along a different line in
Angle, that Jeffrey and Stokes would have received the same sen-
tences regardless of the Apprendi error.

In Angle, James Edward Phifer (Corey Angle's co-defendant) was
convicted on one count of conspiracy to possess with intent to distrib-
ute and to distribute cocaine and crack, in violation of 21 U.S.C.
§ 846, and on two counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(B)(i). See Angle, 254 F.3d at 516. The indictment
did not allege, nor did the jury find, a specific drug quantity in con-
nection with the conspiracy charge. See id. at 517. Phifer was
exposed, on these three counts, to a total statutory maximum term of
sixty years' imprisonment. See id. at 518. Phifer received a sentence
of 292 months' imprisonment for conspiracy and two sentences of
240 months' imprisonment for money laundering, all to run concur-
rently. See id. at 516. Thus, on the conspiracy count, Phifer was erro-
neously sentenced to fifty-two months more than the maximum prison
term authorized under 21 U.S.C. § 841(b)(1)(C). See supra Part II.A.

We concluded, however, that Phifer suffered no prejudice, because
he was subject to the same prison term by way of consecutive, rather
than concurrent, sentences on the multiple counts. See Angle, 254
F.3d at 518. That is, the district court ascertained at sentencing that
Phifer was responsible for at least 29 kilograms of cocaine and 3 kilo-
_________________________________________________________________
plain error review). The application of harmless (rather than plain) error
review certainly could be outcome-decisive in a given case. For reasons
explained infra, however, Jeffrey and Stokes are not entitled to appellate
relief even under the more defendant-favorable strictures of the harmless
error test.

                  7
grams of crack. See id. at 516. Under the Guidelines, the resulting
range was 292-365 months' imprisonment. See id. at 516. Though the
conspiracy count alone carried a statutory maximum of 240 months'
imprisonment,

        [i]n the case of multiple counts of conviction, the sentencing
        guidelines instruct that if the total punishment mandated by
        the guidelines exceeds the statutory maximum of the most
        serious offense of conviction, the district court must impose
        consecutive terms of imprisonment to the extent necessary
        to achieve the total punishment.

Id. at 518 (citing U.S.S.G. § 5G1.2(d)). Consequently, we determined
that Phifer was not prejudiced by the imposition of a 292-month sen-
tence on the conspiracy count, because the district court nonetheless
would have been obligated, under U.S.S.G. § 5G1.2(d), to achieve the
guideline sentence of 292 months via consecutive sentences. See id.
at 518.

Similarly, the Guidelines range for both Jeffrey and Stokes, based
on the district court's determination at sentencing that they were
responsible for more than 1.5 kilograms of crack, was 292 to 365
months' imprisonment. Jeffrey and Stokes were exposed to far greater
statutory maximum terms -- Jeffrey to a total of 180 years on nine
counts, and Stokes to 160 years on eight counts. Even if the district
court had not strayed beyond the statutory maximum term of twenty
years' imprisonment on each count, the court still would have been
mandated, under the provisions of U.S.S.G. § 5G1.2(d), to impose
consecutive sentences in order to attain prison terms within the pre-
scribed Guidelines range. Therefore, we conclude that Jeffrey's and
Stokes's substantial rights were not affected by the Apprendi error.7   7
_________________________________________________________________
7 We also recognized in Angle that a defendant, in circumstances like
Phifer's, might be able to "demonstrate that a refusal to vacate his sen-
tence and order resentencing could in some way affect his substantial
rights"; if so, "that would present a different case." 254 F.3d at 518 n.2.
We cannot, however, discern any ground for distinguishing this case
from Angle, other than recognizing that our review in this case is for
harmless error, while in Angle it was for plain error. See supra note 6.
Even with the burden on the Government to prove that Jeffrey and

                   8
III.

Next, Jeffrey and Stokes contend that they were denied a fair trial
because the Government withheld exculpatory evidence from them in
contravention of the rule announced in Brady v. Maryland, 373 U.S.
83, 87 (1963) (holding that "the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irre-
spective of the good faith or bad faith of the prosecution").

A.

The evidence at this trial consisted of the testimony of seventeen
witnesses, including Jason Davis, who, like other indicted and
unindicted co-conspirators of Jeffrey and Stokes, had entered into a
plea agreement and consented to testify on behalf of the Government.
Davis's testimony provided a basis for the convictions of Jeffrey on
three counts, Stokes on one count, and both defendants on the con-
spiracy charge. According to Davis, he purchased drugs from Jeffrey
and Stokes with the help of an intermediary he knew only as "Pea-
nut"; "Peanut" was never further identified at trial.

On August 4, 1999, following their convictions, Jeffrey and Stokes
each filed a motion for a new trial on the ground that the Government
had, in violation of Brady, failed to provide them with notes from a
Government agent's January 1999 interview with Joseph Brown, Jr.,
_________________________________________________________________
Stokes would have received the same prison terms despite the Apprendi
violation, it is clear that they were not prejudiced. That is, nothing in the
record suggests that the district court would not impose the same 292-
month sentences on Jeffrey and Stokes, albeit by way of consecutive sen-
tences, upon resentencing them. For example, in a similar case, there
might be some suggestion that a court would depart from the prescribed
Guidelines range rather than impose consecutive sentences. See, e.g.,
United States v. Johnson, 138 F.3d 115, 119 n.6 (4th Cir. 1998). There
is no such indication here. Jeffrey and Stokes did not request a departure
from the Guidelines, their presentence reports suggested no basis to
depart, and the district court expressed no inclination to deviate from the
applicable range.

                  9
a/k/a "Peanut." In seeking to identify the"Peanut" implicated by
Davis, Government agents had searched for men in the Portsmouth
area bearing that nickname, focusing on Brown as a likely match with
Davis's "Peanut." During his interview with an agent, Brown stated
that he was familiar with Jeffrey and Stokes, but he denied acting as
an intermediary between them and Davis. When shown a"picture
book" that included Jeffrey and Stokes, Brown failed to pick out the
defendants' photographs.

The district court denied Jeffrey's and Stokes's motions for a new
trial. We review the court's decisions on these motions for an abuse
of discretion. See United States v. Huggins, 191 F.3d 532, 536 (4th
Cir. 1999).

B.

In order to prove that the Government's failure to tender the inter-
view notes constituted a Brady violation, the burden rests on Jeffrey
and Stokes to "show that the undisclosed evidence was (1) favorable
to the defendant[s]; (2) material; and (3) that the prosecution had the
materials and failed to disclose them." United States v. Sarihifard,
155 F.3d 301, 309 (4th Cir. 1998) (citing Moore v. Illinois, 408 U.S.
786, 794-95 (1972); Maynard v. Dixon, 943 F.2d 407, 417 (4th Cir.
1991)). Assuming that the first and third parts of this test are satisfied,
our inquiry focuses on the second: whether the notes were "material,"
i.e., whether "there is a reasonable probability that [their] disclosure
would have produced a different outcome." Id. (citing United States
v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994)).

Jeffrey and Stokes maintain that the notes could have been used at
trial to impeach Davis, because Brown's statements contradicted
Davis's testimony that "Peanut" acted as an intermediary between
Davis and the defendants. According to the defendants, if Davis's tes-
timony had been discredited, there would have been no proof to sup-
port Jeffrey's convictions on three substantive drug trafficking counts,
as well as less evidence to bolster the convictions of Stokes on one
trafficking count and of both defendants for conspiracy. Moreover,
Jeffrey and Stokes insist,

        impeachment material tending to show that Mr. Davis fabri-
        cated much if not all of his testimony would put into ques-

                   10
        tion not only Davis' credibility, but the Government's entire
        case . . . because the testimony given by the [G]overnment's
        witnesses appeared so scripted in its presentation and the
        impeachment material available to the defense [i.e., the wit-
        nesses' hopes of obtaining sentence reductions in return for
        cooperating with the Government] was so uniform in nature.

Appellants' Br., at 25-26.

The district court concluded, however, that the interview notes
were not material to Jeffrey's and Stokes's guilt because, inter alia,
Davis likely would not have been successfully impeached with the
notes. As the court explained, "The court doesn't believe it would
have made any difference in the credibility of the witness Jason Davis
because the -- this witness Brown or Peanut would naturally deny
that he was involved in drug dealings with either defendant since to
do otherwise, it would have incriminated him." J.A. 1208.8
                                                         8 We agree
with the district court and, therefore, we conclude that the court did
not abuse its discretion in denying Jeffrey and Stokes a new trial.9
                                                                   9

IV.

For the foregoing reasons, we affirm the convictions and sentences
of Jeffrey and Stokes.

AFFIRMED
_________________________________________________________________

8 Moreover, as the Government points out, Brown was never positively
identified as the "Peanut" implicated by Davis. At the hearing on Jef-
frey's and Stokes's motions for a new trial, they relied on an affidavit
containing a hearsay statement purported to be that of Brown, denying
any involvement with the defendants in drug deals; the affidavit was
signed by Jeffrey's mother (who obtained the statement), not Brown.
Though the defendants asked Brown to appear at the hearing, he was not
subpoenaed and did not attend. Furthermore, no evidence proffered by
Jeffrey and Stokes, including the affidavit, clearly demonstrated that
Brown was Davis's "Peanut."
9 As previously noted, Jeffrey and Stokes raise numerous other issues
on appeal. Although, in this opinion, we fully address only the purported
violations of Apprendi and Brady, we have also carefully considered Jef-
frey's and Stokes's remaining assertions of error and the arguments made
in support of each, and we conclude that they lack merit.

                   11
