UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                    No. 97-4101
NATHANIEL A. RICHARDSON, JR., a/k/a
Nathaniel Skeeter, a/k/a Skeet,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 97-4149

JERMAINE CLEAVON GOLDEN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 97-4213

AVERY MYRON LAWTON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-96-153)

Argued: March 6, 1998

Decided: August 20, 1998
Before MOTZ, Circuit Judge, PHILLIPS, Senior Circuit Judge, and
KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion, in which Judge Motz and Judge Keeley joined.

_________________________________________________________________

COUNSEL

ARGUED: Douglas Fredericks, Norfolk, Virginia, for Appellant Gol-
den; Keith Loren Kimball, SYKES, CARNES, BOURDON &
AHERN, P.C., Virginia Beach, Virginia, for Appellant Richardson;
James B. Melton, Chesapeake, Virginia, for Appellant Lawton. Laura
P. Tayman, Assistant United States Attorney, Norfolk, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Nor-
folk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Nathaniel Richardson, Jermaine Golden, and Avery Lawton chal-
lenge various aspects of their multi-count convictions and sentences
on drug distribution and conspiracy charges.1 We affirm.
_________________________________________________________________
1 All three appellants were charged with Conspiracy to Distribute Crack
Cocaine and Heroin in Count One (21 U.S.C. § 846) and possession with
intent to distribute under 21 U.S.C. § 841(a)(1). Richardson was charged
separately with Engaging in a Continuing Criminal Enterprise in Count

                    2
I.

Evidence at trial (taken in the light most favorable to the Govern-
ment) established that at the relevant times charged in the indictment,
Richardson organized and operated a continuing drug trafficking
operation in the Southside Gardens area of Portsmouth, Virginia.
Beginning in 1992, Richardson and Joseph Dodd began purchasing
crack cocaine in relatively large quantities which they then sold to
lower-level dealers, including appellant Avery Lawton. Over the next
two years, Richardson purchased ever increasing quantities of crack
cocaine such that in early 1994 Richardson regularly purchased kilo-
gram quantities of crack cocaine from a supplier named Michael
Cromwell.

By 1995, Richardson's illicit business relationship with Cromwell
was thriving to the point that Cromwell sent couriers to Suriname,
South America to bring kilogram quantities of liquid and powder
cocaine to the United States on Richardson's behalf. Cromwell then
processed the cocaine, sometimes with the help of Richardson, and
Richardson then sold quantities to several underlings, including Gol-
den and Lawton.

As Richardson's drug business flourished so too did his lifestyle
and the lifestyle of his associates. Richardson purchased expensive
automobiles, and by the time of his arrest owned a number. See JA
333, 623, 787, 1081. His underlings, including Golden and Lawton,
also owned relatively expensive vehicles. On one occasion in January
1995, Richardson paid $44,500 in cash for a 1991 Acura NSX auto-
mobile. See JA 580, 584-85.

As business flourished, however, members of the conspiracy began
to get in trouble with the law. In February 1995, Richardson was
arrested in Portsmouth for discharging a 9mm handgun. See JA 656-
_________________________________________________________________
Two (21 U.S.C. § 848), Use of a Firearm in Relation to a Drug Traffick-
ing Offense in Count Ten (18 U.S.C. § 924(c)(1)), and Money Launder-
ing in Counts Fifteen and Sixteen (18 U.S.C. § 1956(a)(1)(B)(i)). Golden
was also charged with carrying a firearm in relation to a drug trafficking
offense in Count Eight.

                    3
660. That same month Golden was arrested for possession of crack
cocaine and a 9mm handgun. In March 1995, Portsmouth police offi-
cers recovered a .38 caliber handgun, a .357 magnum revolver, and
cash from Richardson's residence. See JA 744-47. In May 1995,
Portsmouth police officers, exercising a valid search warrant at
Joseph Dodd's residence, recovered 642.5 grams of crack cocaine.
Richardson was present in the bedroom where the cocaine was found
and evidence at trial established that this cocaine had originally been
part of a larger three kilogram shipment that Richardson stored at the
residence of one Fred Hamm. See JA 344-45.

Following his arrest on drug distribution charges in connection
with the May search and seizure, Richardson expanded his enterprise
into heroin distribution. During the fall of 1995 Richardson provided
Hamm with heroin, instructed Hamm on where to buy cutting agents,
and taught him how to dilute and package the product for street distri-
bution. Lawton was also brought into this expansion of the drug trade
and he began selling the product in the Southside area. See JA 948-
50; 972-75; 1001-02; 1077-79.

Finally, in July 1996, seven defendants (including appellants here)
were charged by a federal grand jury in a sixteen-count indictment
alleging a criminal conspiracy to distribute crack cocaine and heroin.
Richardson, Lawton, and Golden, each plead not guilty and were tried
together. Following a jury trial, appellants were found guilty of vari-
ous charges. Richardson was convicted of conspiracy, engaging in a
criminal enterprise, possession with intent to distribute crack cocaine,
and money laundering. Golden was convicted of conspiracy, posses-
sion with intent to distribute crack cocaine, and carrying a firearm in
relation to a drug trafficking offense. Lawton was found guilty of con-
spiracy and possession with intent to distribute crack cocaine.

Appellants now appeal, with Richardson and Golden raising one
joint issue and each appellant rasing several individual issues.

II.

Initially, Richardson and Golden challenge the district court's fail-
ure to sustain their challenge to the Government's exercise of peremp-
tory strikes on the basis of race in violation of Batson v. Kentucky,

                    4
476 U.S. 79 (1986). Finding no evidence that the Government's race-
neutral explanations were pretextual, we affirm.

Trial courts, in whose purview the enforcement of Batson and its
progeny principally lies, are entitled to significant deference on the
question of Batson challenges and may be reversed only if their find-
ings are clearly erroneous. See Batson, 476 U.S. at 98 n.21. In analyz-
ing a particular Batson challenge, a three-step process has been
endorsed by the Court. First, "the defendant must make out a prima
facie showing that the prosecutor has exercised peremptory strikes on
the basis of race." Hernandez v. New York, 500 U.S. 352, 358 (1991).
Once the requisite showing has been made, the burden shifts to the
prosecutor to articulate race-neutral explanations for the strikes. See
id. "Finally, the trial court must determine whether the defendant has
carried his burden of proving purposeful discrimination." Id. at 359.

Appellants have not met their burden of showing the Government's
asserted race-neutral explanations were pretextual. Following strikes
for cause, the jury panel was composed of thirty-seven persons, of
whom thirty were white, six black, and one Asian-American. Of the
Government's ten peremptory strikes, four were used to strike black
jurors. This left a jury of ten whites and two blacks, with another
black jury member seated as an alternate. See JA 258, 262.

Following motion by defense counsel, the district court inquired
into the reason for the four exclusions. One jury member, defense
counsel conceded, could have been properly excluded by the Govern-
ment. When asked to provide a nondiscriminatory reason for the
exclusion of the other three, the Government responded that it
excluded one juror because she appeared timid and afraid (JA 258)
and excluded the other remaining jurors because of their age, 69 and
73 respectively.

We note initially that the court here went immediately to the sec-
ond step in the Batson inquiry, requiring the Government to provide
race-neutral explanations for the jury strikes. We therefore assume the
establishment of a prima facie case of discrimination in the exercise
of peremptory strikes. Our sole inquiry, therefore, is whether the dis-
trict court clearly erred when it credited the Government's race-
neutral explanations. It did not.

                    5
As to one of the three relevant jurors, the Government cited her
demeanor and in particular her timid nature as a basis for the exclu-
sion. See JA 258-59. This is a race-neutral explanation which has not
been rebutted.

With regard to the remaining two jurors, the Government cited
their age and a concern that the members would not be able to sustain
concentration during what was expected to be a lengthy trial. See JA
259. These race-neutral explanations were never rebutted by defen-
dants. Although Richardson points out that two of the other jurors
who remained on the panel had a similar age as those excluded, this
alone is not sufficient to meet the defendants' burden of proving
intentional discrimination. Given the relatively small number of per-
emptories at issue (two) and considering the total number of strikes
exercised (ten), it is not clearly erroneous for the district court to have
viewed this inconsistency as a harmless coincidence rather than an
underhanded and deceitful indication of the prosecutor's racial moti-
vation. This is all the more true when one considers that the jury con-
tinued to have two black jury members on the panel and one alternate.

III.

Richardson also makes a number of arguments individually chal-
lenging various aspects of his conviction and sentence. We analyze
each in turn.

A.

Richardson argues that the trial court abused its discretion in admit-
ting the testimony of Carnell Byrd because his testimony regarding
purchases of cocaine from Richardson was irrelevant and prejudicial.
At trial, Byrd testified that he purchased relatively large quantities of
crack cocaine from Richardson for prices ranging from $250 to $500.
Purchases occurred from February 1992 to May 1992.

Because the indictment charged that the conspiracy began in July
1992, Richardson argues that Byrd's testimony relating to earlier con-
duct was irrelevant and accordingly improperly admitted over objec-
tion. We do not agree.

                     6
"There is no requirement that all the Government's evidence fall
within the time period of the indictment." United States v. Kennedy,
32 F.3d 876, 885 (4th Cir. 1994) (quoting United States v. Towne, 870
F.2d 880, 886 (2d Cir. 1989)). Rather, evidence of earlier activity is
properly admitted if it "served to complete the story of the crime on
trial." United States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980).

Byrd's testimony easily met this standard. By providing back-
ground into Richardson's pre-indictment activity Richardson's ascen-
dancy from street hustler to major drug distributor is more completely
understood. See Kennedy, 32 F.3d at 886 (finding pre-indictment evi-
dence relevant in part because it provided "background information"
on defendant's activities). In addition, Richardson's sale of relatively
large quantities of cocaine in the Springside area was relevant to the
Government's contention that Richardson had peculiar knowledge of
the area, its drug trafficking patterns, and the requirements and ingre-
dients for cutting, preparing and ultimately distributing crack cocaine.

Accordingly, the district court did not abuse its discretion in admit-
ting Byrd's testimony.

B.

Richardson also argues that the evidence was insufficient to estab-
lish guilt on his part of a continuing criminal conspiracy in violation
of 21 U.S.C. § 848(a) and (c). Viewing the evidence in the light most
favorable to the prosecution and inquiring whether"any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt," we find the evidence sufficient to sustain the ver-
dict. Jackson v. Virginia, 443 U.S. 307 (1979).

To establish the existence of a continuing criminal enterprise, the
Government must prove beyond a reasonable doubt that: (1) the
defendant committed a felony violation of the federal drug laws; (2)
such violation was part of a continuing series of violations of drug
laws; (3) the series of violations were undertaken by a defendant in
concert with five or more people; (4) the defendant served as an orga-
nizer or supervisor or in another management capacity with respect
to these other persons; and (5) the defendant derived substantial

                     7
income or resources from the continuing series of violations. See
States v. Ricks, 882 F.2d 885, 890-91 (4th Cir. 1989).

Richardson argues that the Government has not carried its burden
as to element four because there is insufficient evidence that Richard-
son organized or supervised five or more people. Richardson's claim
is without merit. There was extensive evidence before the trier of fact
to establish that Richardson was the principal leader in a well-planned
and intricate drug trafficking enterprise involving more than five per-
sons. Richardson fronted kilograms of crack cocaine to Joseph Dodd,
Jermaine Golden, and Jeff Hamm at a cost of $28,000 per kilogram.
See JA 345. Richardson also supplied crack for redistribution on the
streets to Latanya Crawford, Avery Lawton, Leon Porter, Bob Hol-
man, and Ron Barnes. See JA 315-16, 445, 452-53, 528, & 1070. Tes-
timony from others established that Richardson was the boss of the
operation, with Dodd his lieutenant, and Golden a supplier. See JA
621. Richardson, on at least one occasion, financed a trip to South
America to purchase and bring back significant quantities of crack
cocaine. See JA 1122-24. Richardson also supplied weapons to his
underlings and enforced his will through violence when associates
became greedy or otherwise failed to pay back fronted cocaine. See
JA 324-38.

This evidence is more than sufficient to establish the elements of
a continuing criminal enterprise. A reasonable juror could easily con-
clude that Richardson was operating and leading a full scale and
detailed continuing criminal enterprise. He had several underlings, a
major supplier, and a network of distribution. He enforced his author-
ity through violence and left his supplies in various apartments
throughout the Portsmouth area. For these reasons, Richardson's con-
viction is supported by the evidence.

C.

Next, Richardson challenges the district court's refusal to grant an
instruction proffered by the defense that a "mere buyer/seller relation-
ship is not sufficient to prove a violation [of the continuing criminal
enterprise charge]." Appellant's brief at 28. Relying on this circuit's
decision in United States v. Butler, 885 F.2d 195 (4th Cir. 1989),

                    8
Richardson argues that he is entitled to such an instruction as a matter
of law.

Richardson reads Butler too broadly. Nowhere does Butler imply
that a buyer/seller relationship is always insufficient as a matter of
law to establish supervision, control, or management for purposes of
21 U.S.C. § 848. Butler does state that "the mere showing of a buyer-
seller relationship without more is insufficient" but it also makes clear
that whether supervision or control exists is a unique factual determi-
nation that depends on the nature of the respective relationships and
the peculiar facts associated with each case. See Butler, 885 F.2d at
201. We recognized the fact-intensive nature of such an inquiry when
we upheld the refusal to give a similar instruction sua sponte in
United States v. Hall, 93 F.3d 126, 130 (4th Cir. 1996).

For these same reasons, and because there was sufficient evidence
to establish that much more than a buyer/seller relationship existed
here, Richardson's argument is without merit.2

D.

Richardson also challenges two separate enhancements of his sen-
tence based upon his use of a firearm (U.S.S.G.§ 2D1.1(b)(1)) and
his fleeing from law enforcement officials (U.S.S.G.§ 3C1.2).

Richardson argues that he improperly received a two-point firearm
enhancement because there was an insufficient nexus establishing a
link between Richardson's criminal enterprise and the weapons found
in his possession. We do not agree.

There is a plethora of evidence establishing that Richardson used
weapons to intimidate and enforce order during the period of the con-
tinuing drug enterprise. For example, Latanya Crawford, a Richard-
son distributor, was threatened with a weapon by Richardson. In fact,
_________________________________________________________________
2 Richardson also challenges the district court's failure to instruct the
jury sua sponte on the requirement that all jurors agree unanimously on
which three acts constitute a continuing series of violations within the
meaning of the Statute. This circuit refused to require such an instruction
in Hall and therefore this claim is without merit. See id. at 129-30.

                     9
Richardson shot at her when she failed to pay for cocaine he had pre-
viously fronted her. See JA 324-26, 534-36, 563-64, 721, 1166. On
several other occasions weapons were found in Richardson's posses-
sion and commingled with cash. See JA 743-45, 888-89, 905. This
evidence is more than sufficient to establish by a preponderance of
the evidence that Richardson used a firearm "during the commission
of the offense."

Richardson also challenges his two-point enhancement for fleeing.
Section 3C1.2 authorizes a two-point enhancement if the "defendant
recklessly created a substantial risk of death or serious bodily injury
to another person in the course of fleeing from a law enforcement
officer."

Before the district court below and on appeal, the Government pos-
its two incidents which it contends were sufficient to support the
enhancement. The first occurred on August 8, 1983, when Richardson
fled from law enforcement officers attempting to pull his motor vehi-
cle over for speeding. When he was ultimately apprehended a short
time later, Richardson was found in possession of $1,980 which the
district court later found was proceeds from the sale of narcotics. The
second incident occurred on February 2, 1995, when Lawton fled
from law-enforcement officials and fired a shot at officers who were
responding to calls of gunshots in the Springside neighborhood.

The district court refused to enhance based upon the February 2
incident, finding it insufficiently related to the criminal conspiracy to
fall within the sentencing enhancement's scope. Relying on Richard-
son's possession of $1,980 in drug proceeds, however, the court did
conclude that Richardson was acting within the scope of the conspir-
acy when he fled from law-enforcement officials on August 8. See JA
1449.

The district court assumed and Richardson argues that § 3C1.2
requires some nexus between the underlying convictions and the act
of fleeing which forms the basis for the level-two enhancement.
Though we have not previously addressed the issue, the Ninth Circuit
has assumed (though never held) that § 3C1.2 requires some relation-
ship between the act of fleeing and the underlying conviction and sen-

                     10
tence being enhanced. See United States v. Duran , 37 F.3d 557 (9th
Cir. 1994).

Making the same assumption here, we conclude that the district
court did not clearly err in attributing Richardson's possession of a
substantial amount of drug proceeds to his ongoing drug enterprise.
At the time of flight, Richardson was actively engaged in the sale and
distribution of narcotics. It was well within the court's discretion to
associate that activity with Richardson's decision to lead law enforce-
ment officers on a high speed pursuit through the City of Portsmouth.
Accordingly, any requirement of a nexus between the drug conspiracy
conviction and Richardson's flight is satisfied.

IV.

Golden challenges the attribution to him of 2.01 kilograms of
cocaine as recommended in the presentence report. At sentencing
Golden argued that this amount was inappropriate because there was
no credible evidence at trial to support these findings. Specifically,
Golden challenged the credibility of Jeffrey Hamm (a cooperating
witness) upon whose testimony the presentence report relied.

Golden argues that the district court did not make an independent
factual determination that Hamm's testimony was credible. He con-
tends that, instead, the district court relied exclusively on the jury's
finding of guilt to support the credibility of Hamm's testimony. Gol-
den suggests that such reliance is inappropriate when the guilty ver-
dict could have been obtained without believing the testimony and
accepting the credibility of the relevant witness.

Even if we assume, however, that it is inappropriate for sentencing
courts to rely exclusively on a general jury verdict to sustain the cred-
ibility of a witness' testimony, that did not occur here. The court
addressed the relevant sentencing report recommendations by refus-
ing to overrule Golden's objections to the relevant paragraphs
because "there was evidence in this case to support" the statements
made. See JA 1495. As the court explained, even though Hamm was
"a cooperating witness" he was "credible and . . . also competent to
give testimony." Though the court did not specifically state, as it did
at other times, that the "testimony was credible," such a finding was

                     11
implicit in its discussion of Hamm's testimony, in particular of its
finding that there was additional evidence in the record to support
Hamm's statements regarding drug quantities.

Accordingly, the district court's decision when read as a whole
must be interpreted as making an independent judgment of credibility.
The district court having made such a determination, Golden's objec-
tion is without merit.

V.

Finally, Lawton objects to the amendment of his presentence report
and subsequent attribution of 100 grams of crack cocaine because the
Government failed to follow the procedures for objection and amend-
ment provided in the local rules of the District Court for the Eastern
District of Virginia and Federal Rule of Criminal Procedure 32.

Lawton's original presentence report attributed over 500 grams of
crack cocaine to him. As required by Rule 32(b)(6)(B), Lawton
objected to this attribution. The probation officer, upon review, con-
cluded that the evidence did not support the 500 grams and accord-
ingly struck the paragraph. Striking this paragraph, however, left only
18.2 grams of cocaine attributable to Lawton, an amount the Govern-
ment felt after its own review of the presentence report was grossly
disproportionate to the level of drug activity carried out by Lawton.
Accordingly, the Government, in an ex parte action, requested an
additional attribution of 100 grams of crack cocaine, to Lawton. The
probation officer acquiesced.

The Government concedes, as it must, that it did not notify Lawton
of the amendment of the report within the period required by the
Rules. Rule 32 specifically provides that "[w]ithin 14 days after
receiving the [PSR], the parties shall communicate in writing to the
probation officer, and to each other, any objections to any material
information . . . contained in or omitted from the[PSR]." Lawton did
not receive notice of the alterations of the report until three days
before sentencing.

Nevertheless, Lawton can point to no prejudice resulting from the
Government's technical violation. Though Lawton is indeed "preju-

                    12
diced" in the sense that an additional 100 grams of cocaine were attri-
buted to him, he does not, and cannot contend that the additional
attribution was not supported by the record so that the prejudice suf-
fered was unfairly imposed. Nor does he contend that he was some-
how hampered in preparation for sentencing by the technical violation
of Rule 32. Indeed the Government's failure to notice an objection
and make Lawton aware of subsequent alterations stems here not
from the Government's own attempt to thwart the Rules but from a
conscientious decision to lower the drug amounts based upon Law-
ton's own objections. In such a circumstance, we see no reason for
overturning an accurate and fair sentencing determination. See United
States v. Jones, 913 F.2d 174 (4th Cir. 1990) (refusing to overturn
sentence for failure to follow technical requirement of Rule 32
because no prejudice resulted from violation).

AFFIRMED

                    13
