                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4460



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


CHRISTOPHER FERGUSON, a/k/a Mark Thompson,
a/k/a Mark,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (CR-03-345)


Argued:   March 16, 2007                   Decided:   August 8, 2007


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Gregory wrote
the majority opinion, in which Judge Michael joined.       Judge
Niemeyer wrote a dissenting opinion.


ARGUED: John Kenneth Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia, for Appellant. Daniel Joseph Grooms, III,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.     ON BRIEF:
Paul J. McNulty, United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     Christopher Ferguson was convicted by a jury of one count of

conspiracy to possess with intent to distribute at least 1,000

kilograms of marijuana and one count of conspiracy to commit money

laundering.   Ferguson was acquitted of a third count of possessing

a firearm in furtherance of drug trafficking.    The district court

then imposed a sentence of 235 months for the marijuana conspiracy

count and a concurrent sentence of 235 months for the money

laundering conspiracy count.     Arguing that the district court

failed to instruct the jury properly as to their finding of the

threshold quantity of drugs for which he was responsible, Ferguson

now appeals his sentence.



                                I.

     In July 2003, a federal grand jury indicted Ferguson with

conspiracy to possess with intent to distribute at least 1,000

kilograms of marijuana, in violation of 21 U.S.C. § 846; conspiracy

to commit money laundering, in violation of 19 U.S.C. § 1956; and

possession of a firearm in furtherance of drug trafficking, in

violation of 21 U.S.C. § 924(c).1    From October 14 through October

17, 2003, Ferguson was tried before a jury on these counts.   During

deliberations, the jury passed a note to the district court, making


     1
      A fourth count provided that if Ferguson were convicted on
the drug conspiracy count, he would be forced to forfeit any
property resulting from the conspiracy.

                                 2
the following inquiry with respect to the marijuana conspiracy

count:

      What is the relevance of the breakdown of the amount of
      marijuana involved in Count 1 on the verdict sheet? And
      does it relate specifically to the defendant or the
      entire conspiracy? Or is it the jury’s interpretation?

J.A. 220.      In response, the district court stated:

      It is not the jury’s interpretation. It involves all
      those who were involved in the conspiracy. You add them
      all up, if they were members of the conspiracy, not only
      the defendant. He is charged in a conspiracy, not that
      he did it all by himself.

Id.   After further deliberations, the jury convicted Ferguson of

the marijuana conspiracy and money laundering conspiracy counts and

acquitted him of the firearm count.

      The presentence investigation report (“PSR”) recommended that,

with respect to the marijuana conspiracy count, Ferguson be held

responsible for 3,000 to 10,000 kilograms of marijuana under

U.S.S.G. § 2D1.1(a)(3) and (c)(3), thereby yielding a base offense

level of 34.          The PSR further added a 2-level enhancement for

possessing a firearm under U.S.S.G. § 2D1.1(b)(2), a 2-level

enhancement for victim-related conduct under U.S.S.G. § 3A1.3, and

a 3-level enhancement for his aggravated role in the offense under

U.S.S.G. § 3B1.1.        Thus, the total offense level for the marijuana

conspiracy count was 41.

      In calculating the base offense level for the money laundering

count,   the    PSR    applied   the   base   offense   level   (34)   for   the

marijuana conspiracy count, the underlying offense from which the

                                        3
laundered funds were derived, in accordance with U.S.S.G. § 2S1.1.

The PSR also added a 2-level enhancement because Ferguson had been

convicted under 18 U.S.C. § 1956, a 2-level enhancement for victim-

related conduct under U.S.S.G. § 3A1.3, and a 3-level enhancement

for his aggravated role in the offense under U.S.S.G. § 3B1.1.

Thus, the total offense level for the money laundering count was

also 41.

      Because the marijuana conspiracy embodied conduct treated as

a specific offense characteristic of the money laundering count,

the PSR grouped the offenses together under U.S.S.G. § 3D1.2(c).

The PSR applied the highest offense level of the two (although for

both, the total offense level was 41) and a criminal history

category of I, thus calculating a Guidelines range of 324 to 405

months.

      At sentencing, Ferguson’s counsel asserted that the district

court’s response, which charged the entire weight of the marijuana

conspiracy to Ferguson, to the jury’s query during deliberations

was   erroneous.   The   district   court   rejected   this   objection,

remarking that it “has nothing to do with the sentence.”       J.A. 241.

The district court thus adopted the PSR’s finding of 3,000 to

10,000 kilograms of marijuana attributable to Ferguson.        Although

the district court declined to impose the 3-level enhancement for

Ferguson’s aggravated role in either the marijuana conspiracy or

the money laundering, the district court applied the 2-level


                                    4
enhancement for     victim-related conduct.           Finally, with respect to

counsel’s objection to the firearm enhancement, the district court

responded:

     Under the first count, a level 38 is 235 to 293 months.
     Under-- without the gun charge, it’s a level 36, which is
     188 to 235. I’m going to give him the 235, which is the
     low end of 38 and high end of 36.         I think it is
     appropriate, under these circumstances that that level
     stands.

J.A. 258.    After being pressed by counsel for clarification, the

district court stated “I’m giving him 38.” J.A. 259.               However, in

the written judgment, the district court entered the total offense

level as “36 or 38.”       J.A. 301.         Moreover, the district court

further wrote that “[f]ollowing argument of counsel as to the

appropriate offense level, the Court makes no determination and

sentences    the   defendant   to   235     months,    within   both   of   these

ranges.”    J.A. 301.

     With respect to the money laundering count, the district court

adopted the PSR’s calculation and imposed a sentence of 235 months,

to run concurrently with Ferguson’s sentence of 235 months for the

marijuana conspiracy count.         Ferguson now appeals his sentence.



                                      II.

     Section 841(b) of Title 21, the provision under which Ferguson

was sentenced, sets forth a gradated penalty scheme based on the

quantity of marijuana attributable to the defendant. See 21 U.S.C.

§ 841(b) (setting forth statutory maximums of life imprisonment for

                                       5
1000 kilograms, 40 years for 100 kilograms, 20 years for 50

kilograms, and 5 years for any amount less than 50 kilograms).           On

appeal, Ferguson contends that his 235-month sentence for the

marijuana conspiracy count cannot stand because the district court

did   not   give    a   supplemental   instruction   in   accordance   with

Pinkerton v. United States, 328 U.S. 640 (1946), which holds a

defendant responsible only for conduct that is within the scope of

his   criminal     agreement   and   reasonably   foreseeable.   Ferguson

asserts that because the jury never determined the individualized

quantity of marijuana attributable to Ferguson for the penalty

purposes of § 841(b) and simply considered the entire weight of the

conspiracy, his sentence relied on improper judicial fact-finding

in contravention of the Sixth Amendment.

      In a drug conspiracy case, a jury must apply the Pinkerton

analysis both to the substantive conspiracy charge and to the

determination of the threshold quantity of drugs for statutory

penalty purposes. The government concedes that under United States

v. Collins, 415 F.3d 304 (4th Cir. 2005), the district court erred

by failing to instruct the jury to apply Pinkerton principles in

determining the quantity of marijuana attributable to Ferguson for

the penalty purposes of § 841(b).          This case is indistinguishable

from Collins, in which the defendant was convicted of conspiracy to

distribute cocaine and the jury asked a nearly identical question

about how they were to make the threshold quantity determination


                                       6
required on the verdict form.                   Id. at 311-15.            In Collins, we

pointed out that Apprendi v. New Jersey, 530 U.S. 466. 490 (1990),

requires 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.”         The threshold quantity of drugs for statutory

penalty      purposes     is   a    fact    that      a   jury   must     find    beyond   a

reasonable doubt.         The jury must apply the Pinkerton principles to

their calculation of threshold quantity to determine if the amount

proven to be distributed by the conspiracy was within the scope of

the    defendant’s      agreement         and       reasonably       foreseeable    to    the

defendant.       See Collins, 415 F.3d at 314.

       Because they were not instructed under Pinkerton, Ferguson’s

jury       consequently    did      not    properly          determine    the     statutory

threshold quantity of marijuana attributable to Ferguson.                            In the

absence of a jury determination or an admission of the quantity of

marijuana attributable to Ferguson, Ferguson’s conduct must fall

within the default 5-year statutory maximum set forth in § 841(b).

Ferguson’s       235-month         sentence,         which     was     based     solely    on

judicially-found quantities of marijuana attributable to Ferguson,

therefore violates the Sixth Amendment.                      Id. at 314; see Apprendi

v. New Jersey, 530 U.S. at 490.2


       2
      As in Collins, the error did not affect Ferguson’s conviction
under §§ 841 and 846--neither of which require a threshold drug
quantity for criminal liability. Collins, 415 F.3d at 314.

                                                7
                                      III.

       We also conclude that the error affecting the conspiracy count

undermines the court’s sentencing for the money laundering count.

We have held that proper sentencing under United States v. Booker,

543    U.S.   220    (2005),   requires     a    correct   application   of   the

sentencing guidelines in addition to consideration of the factors

enumerated in 18 U.S.C. § 3553(a).               United States v. Green, 436

F.3d    449   (4th    Cir.   2006).    An       improper   calculation   of   the

guidelines offense level renders the sentence unreasonable, and

such a sentence must be vacated.            Id. at 457.

       The district court made no independent determination of drug

quantity when it sentenced Ferguson on the money laundering count.

The court, acting pursuant to the guidelines, imputed the base

offense level for the conspiracy count to the money laundering

count.    The court rested that calculation of offense level on the

jury’s threshold quantity finding.              In sentencing Ferguson for the

money laundering count, the court therefore improperly relied on

the quantity the jury determined without regard to Pinkerton

principles.     Without an independent determination of quantity for

the second count, the court could and did not properly calculate,

as required by Booker and Green, the guidelines range for the money




                                       8
laundering count.3       Ferguson’s sentence for money laundering must

be vacated as unreasonable.



                                      IV.

        Following Collins, we will withhold judgment on the marijuana

conspiracy count for thirty days and permit the government to

choose between remand for resentencing under the 5-year maximum set

forth in § 841(b) or remand for a new trial.          Collins, 415 F.3d at

315.4       Similarly, because the Guidelines imputed the base offense

level determined for the marijuana conspiracy count to the money

laundering       count   and   the   judge   never   made   an   independent

calculation of offense level for the money laundering count, the


        3
      Drug quantity determines base offense level for drug
trafficking offenses, including money laundering if the underlying
offense involves drug trafficking, as it does in Ferguson’s case..
See U.S.S.G. §§ 1B1.3, 2D1.1, 2S1.1. An independent determination
of drug quantity by the court would have allowed the court to
calculate the offense level properly and arrive at a sentence
lesser than or comparable to the one imposed.
        4
      Because the sentence must be vacated under Collins, we need
not address Ferguson’s constitutional arguments concerning the
firearm enhancement imposed for the marijuana conspiracy count. We
note in passing, however, that the district court did not clearly
indicate whether it adopted the enhancement, which would have
increased the total offense level from 36 to 38.       Indeed, the
district court stated in its written judgment that “[f]ollowing
argument of counsel as to the appropriate offense level, the Court
makes no determination and sentences the defendant to 235 months,
within both of these ranges.”     J.A. 301.   The district court’s
failure to specify the total offense level was error under United
States v. Green, 436 F.3d 449, 456 (4th Cir. 2006), which requires
district courts to calculate the proper Guidelines range and
consider that range in conjunction with the other factors set forth
in 18 U.S.C. § 3553.

                                       9
235-month sentence for the money laundering count also cannot

stand.   We therefore withhold judgment on the money laundering

count and will remand for proceedings consistent with the option

chosen by the government for the marijuana conspiracy count.



                                             VACATED AND REMANDED




                               10
NIEMEYER, Circuit Judge, dissenting:

     A jury convicted Christopher Ferguson of (1) conspiracy to

possess with intent to distribute 1,000 kilograms or more of

marijuana, in violation of 21 U.S.C. § 846, and (2) conspiracy to

commit money laundering, in violation of 18 U.S.C. § 1956(h).

Following    United   States    v.   Booker,    543    U.S.   220    (2005),   the

district court sentenced Ferguson to 235 months’ imprisonment on

each count, to run concurrently.

     On appeal, Ferguson contends (1) that during the trial, the

district court misinstructed the jury on the drug conspiracy count

(an error he did not raise until six months after his conviction);

and (2) that his sentence was improperly enhanced on the basis of

acquitted conduct (as alleged in Count III, charging him with

possession of a firearm in relation to a drug trafficking crime).

     Because Ferguson forfeited any error in the jury instructions

by failing to make a timely objection, see Fed. R. Crim. P. 30(d)

(requiring an objection to be made before the jury retires), we

review the alleged error under the plain-error standard of Rule

52(b).      Regardless   of    the   standard    for   review,      however,   the

district court did not err in instructing the jury on conspiracy

law, and there was no predicate to require an instruction under

United States v. Collins, 415 F.3d 304 (4th Cir. 2005), as Ferguson

contends and the majority presumes.             Moreover, even if a Collins

instruction were appropriate, the alleged error was harmless, as


                                       11
the evidence of Ferguson’s participation in a conspiracy involving

the distribution of 1,000 kilograms or more of marijuana was

overwhelming.     Indeed, the evidence demonstrated that Ferguson was

extensively involved in a conspiracy that distributed up to 9,000

kilograms of marijuana.

      As for Ferguson’s claim that the district court improperly

relied on acquitted conduct (possession of a gun in relation to a

drug trafficking crime) to enhance Ferguson’s sentence two levels,

under U.S.S.G. § 2D1.1(b) (possession of a “dangerous weapon”),

that claim must be rejected.        See United States v. Duncan, 400 F.3d

1297, 1304-05 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005);

United States v. Williams, 399 F.3d 450, 454 (2d Cir. 2005).

      The    majority   relies   exclusively        on   the   district     court’s

failure to comport fully with Collins to order a new trial or a

much reduced sentence.       This approach is fundamentally flawed in

several respects.

      First, the majority opinion fails to recognize that any

Collins error was forfeited, not having been timely raised below

when it could have been remedied.            Ferguson raised the issue some

six months after the jury returned its verdict and was dismissed.

Second, with respect to applying Collins, there was no predicate in

this case for submitting a reasonable-foreseeability instruction to

the   jury   because    Ferguson    was    not   charged       with   any   of   the

substantive     offenses    as     objects     of    the   conspiracy.           The


                                      12
instructions      given   were   entirely    consistent    with   the   law   of

conspiracy and indeed with Collins.            Third, any error was harmless

in   light   of   the   evidence   in   this    case,   which   overwhelmingly

supported Ferguson’s full knowledge of the scope of the conspiracy.

The majority addresses none of these issues.

      As egregious as the majority’s application of Collins is, its

sua sponte vacatur of the sentence on the money laundering account

is plainly and demonstrably wrong, because any error with respect

to the drug conspiracy count in no way affected the sentencing for

the money laundering count.        The majority fails to recognize that

the drug quantity found by the jury on the drug conspiracy count

was not, and could not be, the basis for the drug quantity found by

the court on the money laundering count.                  The conviction and

sentence on the money laundering were independent of the alleged

Collins error and therefore must be affirmed under any legal or

logical analysis.

      I would therefore affirm the judgment of the district court.


                                        I

      Ferguson was charged in a four-count indictment along with six

named coconspirators.       Count I alleged conspiracy to possess with

intent to distribute and to distribute 1,000 kilograms or more of

marijuana; Count II alleged conspiracy to commit money laundering;

Count III alleged possession of a firearm in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c); and Count IV

                                        13
sought forfeiture of drug related assets if Ferguson were to be

convicted under Count I, the drug conspiracy count.       The jury

returned guilty verdicts on Counts I and II, expressly finding with

respect to Count I that the conspiracy involved 1,000 kilograms or

more of marijuana.   The jury acquitted Ferguson under Count III,

which charged him with illegal gun possession.

     During the course of the trial, Ferguson made no objections to

the jury instructions relating to the drug conspiracy count.    In

response to the district court’s inquiry about whether the “defense

ha[d] any objections to the charge,” Ferguson replied, “No, Your

Honor.”   He made no objection to the instructions at the time they

were given and, in fact, agreed, after they were given, that the

court had properly read the instructions, which had previously been

agreed to. Finally, Ferguson made no objection to the instructions

before the jury retired to deliberate, the latest permissible time

for objection to jury instructions.    See Fed. R. Crim. P. 30(d)

(requiring that an objection to jury instruction be made before

“the jury retires to deliberate”).    Nor did Ferguson object when

the judge responded to a note from the jury asking how to assess

drug quantity.

     Over six months later, after the presentence report had been

prepared, Ferguson was sentenced for his convictions on Counts I

and II.    While Ferguson made several written objections to the

presentence report, he did not object to the drug quantity found in


                                 14
the report, i.e., that he was responsible for 3,000 to 10,000

kilograms of marijuana.    For the first time, however, Ferguson did

contend that the district court should have instructed the jury in

accordance with United States v. Pinkerton, 328 U.S. 640, 647-48

(1946), that Ferguson was responsible for only the drug quantity

attributable to him.     Ferguson’s counsel stated:

     The Court:        You’re objecting to the jury’s findings?

     Counsel for Ferguson:

                       No, no. What I’m saying to the Court is,
                       the   jury,   during    the   course   of
                       proceedings on day two, they came into
                       the Court and asked the Court whether or
                       not   they   could    find   the   weight
                       attributable directly to this defendant,
                       or whether or not it was the weight of
                       the conspiracy.    The Court charged the
                       weight of the conspiracy.

                            *       *        *

     The Court:        You can go to the Fourth Circuit if I’m
                       wrong.   It has nothing to do with the
                       sentence.

     The district court, of course, could not correct the alleged

error, and the court treated the objection as only an objection to

its sentencing of Ferguson as a member of a conspiracy involving

the distribution of 1,000 kilograms or more of marijuana.

     Ferguson also objected to the district court’s enhancement for

Ferguson’s   possession    of   a   firearm      in   relation   to   a   drug

trafficking crime.      He contended that the jury had considered

evidence of the conduct and rejected it and that now, under Booker,


                                        15
the district court was not free to find that fact for enhancement

of his sentence under U.S.S.G. § 2D1.1(b)(1).       In addition to the

fact that the district court was entitled to base a sentence on

acquitted conduct, the district court indicated that the two-level

enhancement for the gun charge would not affect the 235-month

sentence that it had selected, because that sentence was included

in the sentencing range for both the offense level without the

enhancement and the offense level that included the enhancement.

     The    court   ultimately   sentenced   Ferguson   to   235   months’

imprisonment on each count, to run concurrently, and this appeal

followed.


                                   II

     Ferguson’s principal point on appeal is that the district

court violated his Sixth Amendment right to trial by jury when it

failed to instruct the jury properly to find the amount of drugs

attributable to Ferguson himself instead of to the conspiracy.         He

argues that the instruction would have allowed the jury to find a

smaller drug quantity attributable to him and therefore would have

allowed the jury to deny liability for the greater statutory

offense under the scheme of 21 U.S.C. § 841(b).

     The district court became aware of Ferguson’s argument for the

first time when he mentioned it over six months after the jury

returned its verdict, during the sentencing hearing.          Yet, under

Rule 30(d), the objection could only have been timely if made

                                   16
before the jury retired to deliberate.                Ferguson’s attempt to

object to the jury instruction and the court’s answer to the jury

at sentencing thus was plainly untimely.             Not only was it untimely

under the Rule, Ferguson’s timing denied the court any opportunity

to correct the error.

       As a result of Ferguson’s untimely objection, our review can

only   be   for   plain   error,   not    the   de   novo   review    apparently

undertaken by the majority.        See United States v. Olano, 507 U.S.

725, 731 (1993) (quoting with approval Yakus v. United States, 321

U.S. 414, 444 (1944) (“No procedural principle is more familiar to

this Court than that a . . . right may be forfeited in criminal as

well as civil cases by the failure to make timely assertion of the

right before a tribunal having jurisdiction to determine it”))

(emphasis added).

       The rule requiring timely objection is not simply a legal trap

or empty formalism.       The rule exists so that the trial judge can

deal with problems in the trial when they arise.                     It protects

district courts from heavy-handed review and reversal when the

court could not be expected to have corrected the error.                And most

importantly, the rule exists to prevent the defendant from sitting

on his rights at trial and awaiting the outcome of the proceeding

-- obtaining an unreviewable acquittal if he wins and obtaining a

mulligan if he loses.         The majority’s willingness to allow a

defendant to preserve error by objecting six months after the


                                         17
objection was required undermines every purpose of the rule.         As

the Supreme Court has said,

     We think that the [majority’s approach] may encourage
     “sandbagging” on the part of defense lawyers, who may
     take their chances on a verdict of not guilty in a []
     trial court with the intent to raise their [] claims in
     [an appeals] court if their initial gamble does not pay
     off. . . .

     The failure of the [] courts . . . to require compliance
     with a contemporaneous-objection rule tends to detract
     from the perception of the trial of a criminal case . .
     . as a decisive and portentous event. A defendant has
     been accused of a serious crime, and this is the time and
     place set for him to be tried by a jury of his peers and
     found either guilty or not guilty by that jury. To the
     greatest extent possible all issues which bear on this
     charge should be determined in this proceeding:       the
     accused is in the courtroom, the jury is in the box, the
     judge is on the bench, and the witnesses, having been
     subpoenaed and duly sworn, await their turn to testify.
     Society’s resources have been concentrated at that time
     and place in order to decide, within the limits of human
     fallibility, the question of guilt or innocence of one of
     its citizens. Any procedural rule which encourages the
     result that those proceedings be as free of error as
     possible    is    thoroughly    desirable,     and    the
     contemporaneous-objection rule surely falls within this
     classification.

Wainwright v. Sykes, 433 U.S. 72, 89-90 (1977).

     The majority’s approach also tramples Rule 52(b) and the

governing   principles   of   Olano,    which   require   Ferguson   to

demonstrate error that was plain and that affected his substantial

rights.   See Olano, 507 U.S. 725.     Our court, considering several

cases identical on their facts, has found that a Collins error was

not the sort of grave error meriting reversal on plain error

review.   See United States v. Harris, 215 Fed. Appx. 262, 279 (4th


                                 18
Cir. 2007) (per curiam); United States v. Mitre, 209 Fed. Appx.

249, 252 (4th Cir. 2006) (per curiam); United States v. Andaya-

Penalosa, 198 Fed. Appx. 314, 316 (4th Cir. 2006) (per curiam).           We

should follow the typical practice of our court and hold that any

error needed to be preserved for our review, and any error not

preserved    is   forfeited,   absent    an   extraordinary   showing   that

Ferguson cannot make and has not attempted to make.           See Olano, 507

U.S. at 733-35.


                                   III

     In the context of all of the instructions given to the jury

and of the facts of the case, the challenged instruction accurately

states the law of conspiracy.           Therefore, Ferguson was properly

convicted for the drug trafficking conspiracy.

     A “conspiracy is a distinct offense from the completed object

of the conspiracy.”     Garrett v. United States, 471 U.S. 773, 778

(1985).     It is an inchoate crime, and one can be held liable for

conspiracy whether or not the object offense is ever completed.

See Ianelli v. United States, 420 U.S. 770, 777 & n.10 (1975).           The

gravamen of conspiracy is agreement to commit a crime or series of

crimes. Thus, “[t]o prove [a drug conspiracy], the Government must

establish that (1) an agreement to possess [illicit drugs] with

intent to distribute existed between two or more persons; (2) the

defendant knew of the conspiracy; and (3) the defendant knowingly

and voluntarily became a part of this conspiracy.”            United States

                                    19
v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).                  Upon proof

of these elements, each conspirator becomes liable for conspiracy

to the extent of the entire scope of the conspiracy -- i.e. all

acts done in support of the criminal purpose.                See United States v.

Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).                 This broad liability,

resting on agreement, is distinct from liability under Pinkerton

for the substantive crimes committed by one’s coconspirators.                   See

328 U.S. at 647.    Conspiracy liability rests simply on the acts of

the conspiracy as a whole.       Burgos, 94 F.3d at 857.

        But a conspirator may also be held liable for the underlying

substantive     crimes     committed    by       members    of   the   conspiracy,

regardless of whether he was aware that those crimes were being

committed.     Members of the conspiracy act as each other’s agents,

and any act performed by one conspirator within the scope of the

agreement is the act of each other conspirator. Id.; United States

v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993) (“As we have recognized,

[Pinkerton]     controls    questions       of    an     individual    defendant’s

criminal liability for acts done by others in furtherance of

conspiratorial activity”); United States v. Miley, 513 F.2d 1191,

1208 (2d Cir. 1975) (“the Pinkerton charge . . . permits a jury to

find a defendant guilty on a substantive count without specific

evidence that he committed the act charged”) (emphasis added).

Thus,    the   Pinkerton    holding    serves       to     impute   liability   for

substantive offenses to coconspirators for acts committed in the


                                       20
course of the conspiracy.        In doing so, however, Pinkerton imposes

additional proof requirements.          To hold a conspirator liable for

the substantive offenses of coconspirators, Pinkerton requires (1)

that the offense be committed in furtherance of the conspiracy; (2)

that the offense “fall within the scope of the unlawful project”;

and (3) that the offense be reasonably foreseeable as “a necessary

or natural consequence of the unlawful agreement.”          Pinkerton, 328

U.S. at 647-48.           But Pinkerton does nothing to constrict the

traditional criteria for proving the crime of conspiracy, which

consists of an agreement to commit one or more crimes.             Properly

understood, then, Pinkerton principles expand criminal liability,

rather than contract it.         As even the Collins decision stated,

      The principles outlined in Pinkerton, however, have no
      applicability to a conviction under [21 U.S.C.] § 846.
      Pinkerton principles are relevant when a conspirator is
      charged with a substantive offense arising from the
      actions of a coconspirator, not when a conspirator is
      charged with conspiracy.      Because [the indictment]
      charges Collins with conspiracy [], and not a substantive
      offense, the district court’s answer to the jury’s
      question, as well as its original conspiracy instruction
      . . . is unassailable as a matter of law.

Collins,     415   F.3d    at   313   (emphasis   added).   The   Pinkerton

requirements for proving substantive acts through the conspiracy

are   thus   necessary      because   Pinkerton   relates   to   substantive

liability, but have no application when the defendant is charged

only with conspiracy, as here.

      Ferguson was charged only with conspiracy, and his criminal

liability for conspiracy to distribute 1,000 kilograms or more of

                                        21
marijuana     was     perfected     as       soon       as   he   agreed    with   his

coconspirators to distribute drugs.                   In accordance with the common

law of conspiracy, it is the scope of that agreement that defines

his liability under 21 U.S.C. § 846.                    Because Pinkerton concerns

itself a conspirator’s responsibility for the substantive crimes

committed by other conspirators, it does not apply here. Thus, the

district court properly instructed the jury as to conspiracy

liability, both in its initial instruction and in its response to

the jury’s note, and it need not have considered any instruction

under     Pinkerton    or   under    the          later-to-be     decided    Collins.

Following Burgos, our leading case on conspiracy, the district

court instructed the jury as follows:

        A conspiracy is an agreement between two or more persons
        to join together to accomplish some unlawful purpose. It
        is a kind of partnership in crime in which each member
        becomes the agent of each other member.

        For you to find the defendant guilty, you must be
        convinced that the Government has proved each of the
        following beyond a reasonable doubt: 1, two or more
        persons reached an agreement or came to an understanding
        to commit a crime; namely, either to possess with intent
        to distribute [] marijuana or to distribute marijuana.

        2, that the defendant voluntarily and intentionally
        joined the agreement or understanding either at the time
        it was first reached or at some later time while it was
        still in effect.

        And 3, at the time defendant joined in the agreement or
        understanding, he knew the purpose of the agreement or
        understanding.

                              *          *        *



                                             22
     One may become a member of a conspiracy without knowing
     all of the alleged details of the unlawful scheme or the
     identities of all the alleged conspirators.

                            *    *        *

     If a defendant understands the unlawful nature of the
     plan or scheme, and knowingly and intentionally joined in
     that plan or scheme on one occasion, that is sufficient
     to convict him for the conspiracy even though the
     defendant had not participated before and even though the
     defendant played only a minor part.

                            *    *        *

     Similarly, the Government need not prove that all of the
     details alleged in the indictment were actually agreed
     upon or carried out.

     In addition to that formal charge, the judge answered a

question from the jury:    “What is the relevance of the breakdown of

the amount of marijuana involved in Count 1 on the verdict sheet?

And does it relate specifically to the defendant or the entire

conspiracy?   Or is it the jury’s interpretation?”              The judge

replied: “It is not the jury’s interpretation.           It involves all

those who were involved in the conspiracy.        You add them all up, if

they were members of the conspiracy, not only the defendant.          He is

charged in a conspiracy, not that he did it all by himself.”

(Emphasis added).

     The original charge and the additional answer given by the

district   court    are   completely      consistent   with   the   law   of

conspiracy, the only crime with which Ferguson was charged.           These

instructions correctly told the jury that a conspirator is liable

for the acts of the entire conspiracy (1) if an agreement existed;

                                     23
(2) if Ferguson joined the agreement; and (3) if Ferguson knew the

purpose of the agreement when he joined.              Here, because Ferguson

was not charged with the underlying substantive offenses of the

conspiracy, there was no need to instruct the jury on Pinkerton’s

additional requirements.

       Ferguson’s trial defense was to claim that he was personally

responsible only for five pounds of marijuana that he sold to the

government and knew nothing of the conspiracy.                     This theory,

however, failed to advance the argument raised on appeal that

Ferguson was a member of the conspiracy but could not foresee the

amount of drugs involved.        As important, Ferguson never put forth

a defense that he did not agree to the conspiracy with which he was

charged. Moreover, Ferguson did not challenge or even question the

drug quantity attributable to the conspiracy.                     Under standard

conspiracy    law,   Ferguson    was   liable   for    all   of     the    acts   of

coconspirators in furtherance of the conspiracy, and in the absence

of     substantive   charges    of   drug   distribution,         the     Pinkerton

limitations were irrelevant.

       The district court acted properly in not confusing the jury

with    the   inapplicable     Pinkerton    limitations      or    the     type   of

instruction later imposed by our decision in Collins, which had not

yet been decided.




                                       24
                                            IV

      Once conspiracy liability is determined, the defendant is

“subject to the same penalties as those prescribed for the offense,

the   commission       of   which    was    the        object    of    the    attempt    or

conspiracy.”     21 U.S.C. § 846.          Since violation of 21 U.S.C. § 841

was the object of the offense, Ferguson is subject to the penalties

outlined in § 841(b).

      Section 841 sets up a gradated penalty scheme, in which a

defendant is subject to different statutory maximums and minimums,

depending on the quantity of drugs manufactured, distributed, or

dispensed.      See 21 U.S.C. § 841(b).                  Prior to Apprendi v. New

Jersey, 530 U.S. 466 (2000), those threshold drug quantities were

sentencing facts for the judge to decide.                       See United States v.

Irvin,   2    F.3d    72,   75-77    (4th       Cir.    1993).        Our    pre-Apprendi

jurisprudence        held   that    in    pari    materia       with    the    Sentencing

Guidelines, a conspiracy defendant should be held accountable only

for   those   drug     transactions        he    could    have    been       charged   with

substantively under § 841.               Id. at 77-78; cf. U.S.S.G. § 1B1.3.

Accord United States v. Ruiz, 43 F.3d 985, 989-90 (5th Cir. 1995);

United States v. Chitty, 15 F.3d 159, 162-63 (11th Cir. 1994);

United States v. Young, 997 F.2d 1204, 1209-10 (7th Cir. 1993);

United States v. Becerra, 992 F.2d 960, 966-67 (9th Cir. 1993);

United States v. Martinez, 987 F.2d 920, 923-26 (2d Cir. 1993);

United States v. Jones, 965 F.2d 1507, 1517 (8th Cir. 1992).


                                            25
        Since Apprendi, however, in conspiracy cases under 21 U.S.C.

§ 846, we have held that the jury, not the judge, must make the

threshold drug quantity determination.           See Collins, 415 F.3d at

314.     Apprendi held that “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.”        530 U.S. at 490.

In doing so, the Supreme Court equated sentencing factors that

increased the possible penalty for a crime with elements of the

offense which must be proved beyond a reasonable doubt.            Id. at

478-81.    This holding did not simply shift functions from judge to

jury;    it   also   converted   some    facts   previously   regarded   as

sentencing facts into elements of the offense.          See United States

v. Promise, 255 F.3d 150, 157 (4th Cir. 2001) (en banc) (“the

specific threshold quantity must be treated as an element of an

aggravated drug trafficking offense”) (emphasis added).

       Thus, because the threshold quantity determination under §

841(b) is now an element of an aggravated drug offense, the

threshold     quantity   determination     for   a   conspiracy   must   be

determined by the jury in accordance with traditional conspiracy

principles, which hold conspirators liable for agreeing to all the

acts of the entire conspiracy.

       Sentencing for conspiracy takes place in a completely separate

hearing, and at that time, the sentencing judge evaluates the

individual conspirator’s liability for drug quantity, as required


                                    26
by the Sentencing Guidelines.    See U.S.S.G. § 1B1.3.    And after

Booker, 543 U.S. at 220, the judge has discretion to individualize

the sentence in light of his finding of drug quantity.

     Collins, which was decided after the trial and sentencing in

this case, conflates the liability phase of the criminal proceeding

with the sentencing phase, to much confusion.       It ignores that

Irvin was a response to the unique historical circumstances where

both the threshold drug quantity and the final drug quantity were

sentencing questions for the judge.      Since under Apprendi and

Promise, the threshold drug quantity has become an element of the

offense, not a part of the sentencing proceeding, there is no

longer any reason to apply Pinkerton principles where even Collins

recognizes they do not belong -- where the defendant is charged

with conspiracy.   The question under the statute is simple – when

a defendant agrees to join a drug conspiracy, what is the size of

the conspiracy he agreed to join? And that determination fixes the

statutory penalty range under 21 U.S.C. § 841(b).

     This must be the test, because conspiracy is an inchoate

crime, meaning that drug quantity must often be determined even

when no perfected acts of drug distribution have occurred.    As in

some cases, we know here the ultimate size of the conspiracy,

because it resulted in the actual commission of numerous acts of

drug dealing.   But in many cases, the conspiracy remains inchoate,

with agreement but without any completed drug sales punishable


                                 27
under 21 U.S.C. § 841.         In such a case, indeed in every conspiracy

case,   the   scope   of    the    agreement     is   the      only   benchmark    for

determining drug quantity.

     Yet   Collins     would      seem   to    require    an    analysis   based   on

individual acts of drug distribution that have not yet occurred and

may never occur. Because drug quantity must often be calculated on

a forward-looking basis in conspiracy cases, the jury must evaluate

that quantity based the scope of the conspiratorial agreement and

could not undertake the inquiry required by Collins.

     Moreover, Collins’ confusion systematically undermines the

deterrent effects of the federal drug laws.                      Conspiracies pose

unique dangers because of their ability to channel the efforts of

multiple people into a single illegal project, permitting greater

coordination, secrecy, and scale.              The harm posed by an individual

joining a conspiracy thus depends on the size of the conspiracy --

i.e. the level of social danger that conspiracy crime poses. Under

Collins, the punishment relates only to the extent of the harm

foreseeable to the individual, not the extent of the harm the

conspiracy actually poses.               This, of course, underdeters and

underpunishes    conspiratorial          conduct.        In    addition,   and    more

perniciously,    the       Collins       approach     would     appear     to    allow

conspiracies to decrease their exposure by compartmentalizing their

operations, segmenting responsibilities, and otherwise keeping

members from knowing the full extent of the conspiracy.


                                          28
     Other circuits have rejected the argument that Pinkerton

should apply to a threshold drug quantity determination under 21

U.S.C.    §   841(b)   in   conspiracy-only   cases,   let   alone   that   an

instruction that omits all of Pinkerton’s subtleties is erroneous.

I agree with the observation that

     in a drug conspiracy case, the jury should determine the
     existence vel non of the conspiracy as well as any facts
     about the conspiracy that will increase the possible
     penalty for the crime of conviction beyond the default
     statutory maximum; and the judge should determine, at
     sentencing, the particulars regarding the involvement of
     each participant in the conspiracy. . . . This means that
     once the jury has determined that the conspiracy involved
     a type and quantity of drugs sufficient to justify a
     sentence above the default statutory maximum and has
     found a particular defendant guilty of participation in
     the conspiracy, the judge lawfully may determine the drug
     quantity attributable to that defendant and sentence him
     accordingly (so long as the sentence falls within the
     statutory maximum made applicable by the jury's
     conspiracy-wide drug quantity determination).

Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002).

Accord United States v. Stiger, 413 F.3d 1185, 1192-93 (10th Cir.

2005); United States v. Phillips, 349 F.3d 138, 141-43 (3d Cir.

2003), vacated and remanded on other grounds sub nom Barbour v.

United States, 543 U.S. 1102 (2005); United States v. Knight, 342

F.3d 697, 710-11 (7th Cir. 2003); United States v. Turner, 319 F.3d

716, 722-23 (5th Cir. 2003).        But see United States v. Banuelos,

322 F.3d 700 (9th Cir. 2003) (requiring threshold drug quantity

under in conspiracy cases to be individualized by the jury using

Pinkerton).     Our court under Collins is an outlier, and for good

reason.

                                     29
     Because Collins was wrongly decided or, at best, is confusing

and because it is out of step with so many of our sister circuits,

it should be overruled or clarified at the earliest opportunity by

this court sitting en banc.    But, in any event, Pinkerton is not,

and Collins should not be, applicable here, because Ferguson was

not charged with substantive offenses that were the object of the

conspiracy.


                                  V

     It is thus readily demonstrable that the district court

committed no error in charging the jury with traditional conspiracy

principles and in answering the jury’s question as it did.      But

even if it were error to have the jury find the drug quantity

attributable to the conspiracy, as distinct from finding drug

quantities attributable to individual members of the conspiracy,

and if the error were preserved, it was nonetheless harmless.

     The majority confuses the question of Sixth Amendment error

under Apprendi with the usual judicial remedies for erroneous jury

instructions.   This is not a case where the jury failed to make a

finding as to drug quantity.    The jury did make a finding as to

drug quantity: “Did the conspiracy involved in Count One involve

1,000 kilograms or more of marijuana?   A: Yes.”   Any error, then,

is not Sixth Amendment error (the error that results from having a

fact determined by a judge rather than a jury) but is simply an

error of instruction.    Ferguson can therefore make no credible

                                 30
claim that he lost his right to a jury trial, which would entitle

him to at least a resentencing.            See United States v. Hughes, 396

F.3d 374 (4th Cir. 2005).       As a result, the majority, even on the

erroneous understanding that the error was preserved, should have

conducted a harmless error analysis, taking into account the entire

instruction and facts of the case.             See, e.g., United States v.

Knight, 342 F.3d at 712.

       The facts demonstrate that Ferguson was a mid-level player in

a huge drug conspiracy responsible for distributing about $25

million worth of marijuana in Maryland, Virginia, and Washington,

D.C.    There can be no doubt that each and every sale of drugs was

both   within    the   scope   of   the    conspiracy    and   foreseeable   to

Ferguson.

       Co-conspirators are liable for the reasonably foreseeable
       acts of another co-conspirator taken in the course of and
       in furtherance of the unlawful agreement, regardless of
       whether they had actual knowledge of those acts, so long
       as they played more than a minor role in the conspiracy
       or had actual knowledge of at least some of the
       circumstances and events culminating in the reasonably
       foreseeable event.

United States v. Baker, 432 F.3d 1189, 1235 (11th Cir. 2005).

       Ferguson lived with his cousin, the brother of the principal

conspirator, in a home owned by Ferguson’s mother.                 Substantial

amounts   of    cash   ($49,000)    were    found   in   his   bedroom,   though

Ferguson had never filed a tax return.              Two firearms were found

under his mattress when the conspiracy involved many firearms. And



                                      31
Ferguson was pulled over in Los Angeles, traveling in a van that

contained $277,000 in cash, bundled with rubber bands.

     Two    couriers    in    the   conspiracy   testified    that    Ferguson

personally took delivery of several cars containing over 300 pounds

of marijuana when the couriers brought it to the Washington, D.C.,

area.   He was part of a group that instructed the couriers where to

go and what to do.       He purchased airplane tickets for several of

his coconspirators in connection with the conspiracy.

     A coconspirator testified that he saw Ferguson in his house

with large barrels of marijuana on numerous occasions, and that

Ferguson sold him large quantities of marijuana.             He saw Ferguson

at the scene when the conspiracy unloaded tractor trailers and U-

Haul trucks filled with marijuana.           He and the defendant often

pooled their money to purchase marijuana.

     Ferguson regularly drove for the conspiracy.            On at least one

occasion, Ferguson drove while his coconspirators threatened to

kill two couriers who had lost drug money.            He drove couriers to

the airport, who then flew to Phoenix and procured marijuana, over

350 pounds of which was found in their vehicles on a trip.               Those

couriers had, on over 15 occasions, driven currency and drugs

between California and Arizona, and Washington, D.C.

     Also    found     near   Ferguson’s    bedroom   were    tally     sheets

constituting the conspiracy’s records of drugs sold and money owed.




                                       32
These records reflected the enormous extent of the conspiracy’s

operations.

        The evidence cumulatively shows that Ferguson was fully aware

of the operations of the conspiracy, and was involved in drug sales

and money laundering.        When he dropped drug couriers off at the

airport, he was certainly aware of the general quantities of drugs

that were being transported.         And when he received the marijuana,

in 300-pound quantities, he was aware of a large drug conspiracy.

Pinkerton does not require that Ferguson have oversight over or

even specific knowledge of every operation of the conspiracy.                 It

only     requires   that    the   conspiracy’s      dealings    be     reasonably

foreseeable to him.        Without question, Ferguson was aware that he

was part of a huge, sprawling, transcontinental narcotics scheme,

and no reasonable jury could have found otherwise.

       In light of the extensive evidence tying Ferguson to all of

the drugs involved in the conspiracy, Ferguson certainly foresaw at

least     the   quantity    of    drugs    found    by   the   jury,    and   any

instructional error was harmless.


                                          VI

       Quite    distinct   from   the     alleged   Pinkerton/Collins      error,

Ferguson was properly and legally sentenced for conspiracy to

launder money, in violation of 18 U.S.C. § 1956(h), and there is no

basis, legal or otherwise, for vacating the sentence on that Count.



                                          33
      First,   Ferguson   has     made   no     allegation    that   his   money

laundering conviction was flawed. Indeed, in his opening brief, he

did not even challenge any part of his conviction or sentence, and

properly so.    Only after the government argued that the conviction

and sentence on Count II must remain standing because they were

independent of any Pinkerton instruction error did Ferguson respond

with a generalized claim that the whole process was flawed.

      Ferguson was sentenced on Count II pursuant to U.S.S.G. §

2S1.1(a), which states that the offense level is “(1) The offense

level for the underlying offense from which the laundered funds

were derived, if (A) the defendant committed the underlying offense

(or   would    be   accountable    for    the    underlying     offense    under

subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct)); and (B) the

offense level for that offense can be determined . . . .”                    The

offense level for money laundering thus depends on the offense

level of the underlying offense that produced the money to be

laundered -- in this case, drug trafficking.                 Notably, however,

nothing in § 2S1.1 depends on a drug quantity found by the jury,

nor does the Guideline even require that the defendant be convicted

of the underlying (drug) offense or, for that matter, charged with

the underlying offense.     Any error during the liability phase with

respect to the drug conspiracy count has absolutely no bearing on

the proper Sentencing Guideline calculation under § 2S1.1. Without

regard to what the jury found, the sentencing judge is obligated to


                                     34
find drug quantity as part of the sentencing process and calculate

an offense level under U.S.S.G. § 2D1.1. In following that course,

the sentencing judge is directed to U.S.S.G. § 1B1.3 (relevant

conduct),     which     incorporates     into    sentencing    the     Pinkerton

principles    adopted     for    conspiracy      liability    for    substantive

offenses.     See U.S.S.G. § 1B1.3 (“the base offense level . . .

shall be determined on the basis of the following: . . . in the

case of a jointly undertaken criminal activity . . . , all

reasonably foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity”); cf. Pinkerton, 328

U.S. at 647-48 (“A different case would arise if the substantive

offense committed by one of the conspirators was not in fact done

in furtherance of the conspiracy, did not fall within the scope of

the unlawful project, or . . . could not be reasonably foreseen”).

     Ferguson advances no reason to believe that the district court

misapplied the Sentencing Guidelines with regard to the money-

laundering count.       The offense level for that count was based on a

judge-found drug quantity, and the district court adopted the drug

quantity recommended in the presentence report -- 9,000 kilograms

of marijuana.         Nothing in the record suggests that either the

presentence    report     or    the   district   court   failed     properly   to

calculate the drug quantity in accordance with U.S.S.G. §§ 2D1.1

and 1B1.3.




                                        35
      The majority opinion says that “because the Guidelines imputed

the base offense level determined for the marijuana conspiracy

count to the money laundering count and the judge never made an

independent calculation of offense level for the money laundering

count, the 235-month sentence for the money laundering count

necessarily rested on improper judicial fact-finding in violation

of the Sixth Amendment.”    The majority seems to be saying that some

fact was found by the judge that should have been found by the

jury, and that by not allowing the jury to find it, the district

court violated the Sixth Amendment. But the majority does not, and

cannot, indicate what fact was improperly so found.         The jury, by

convicting Ferguson, found all of the facts required by 18 U.S.C.

§ 1956(h) (money laundering), and the district judge determined for

sentencing, in agreement with the presentence report, that Ferguson

was   responsible   for   between   3,000   and   10,000   kilograms   of

marijuana.   This drug quantity finding could not logically have

rested on the jury’s quantity finding, although it is consistent

with it. The jury found simply that the conspiracy was responsible

for 1,000 kilograms or more of marijuana.         The judge found that

Ferguson was responsible for between 3,000 and 10,000 kilograms of

marijuana to calculate an offense level.          Because the district

judge’s drug quantity finding was greater than 1,000 kilograms, he

necessarily made an independent finding of quantity and could not

have relied on the jury verdict, as the majority suggests.


                                    36
     Moreover, Ferguson had no Sixth Amendment entitlement to a

jury finding of drug quantity at the sentencing phase.             See United

States v. Moreland, 437 F.3d 424, 432-34 (4th Cir. 2006).                  The

district judge properly determined the precise drug quantity under

the Sentencing Guidelines; properly used that quantity to identify

the offense level under § 2D1.1; and properly imputed that offense

level to the Guidelines calculation under § 2S1.1.             None of these

findings needed to be made by a jury.             Indeed, even under the

majority opinion, the district judge may impose an identical

sentence on remand, so long as he recites an “independent” finding

of drug quantity.

     Under the Sentencing Guidelines scheme, we review a district

court’s drug quantity findings for clear error.             See United States

v. Carter, 300 F.3d 415, 425 (4th Cir. 2002).           Yet, nothing in the

majority opinion or the record suggests that the district court did

anything but accurately calculate the drug quantity using § 2D1.1

(the drug offense guideline) and § 1B1.3 (relevant conduct).

     Indeed, the majority’s reasoning with regard to the money

laundering count is not at all legal in nature.             Rather, it states

simply, in a single sentence, that there was error in the drug

conspiracy   aspect   of   the   trial   and   suggests     that   that   error

therefore “spread to” or “infected” the sentence imposed on a

wholly   different    count.     The     law   does   not   comprehend     this

jurisprudence by metaphor to answer the simple question whether


                                    37
Ferguson has a claim of right which he has been denied.        As

Ferguson can provide no legal argument for why this should be so,

his conviction and sentence on the money laundering count must

stand.

     Because I would affirm the judgment of the district court, I

respectfully dissent.




                               38
