PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 96-4310

ALVIN JUSTIN "BUDDY" HUGGINS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 98-7351

ALVIN JUSTIN "BUDDY" HUGGINS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-95-51)

Argued: June 8, 1999

Decided: September 15, 1999

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Hamilton and Judge Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: Susan Graham James, LAW OFFICE OF SUSAN G.
JAMES & ASSOCIATES, Montgomery, Alabama, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Appellant Alvin Justin "Buddy" Huggins ("Huggins") was con-
victed in 1996 of conspiracy to possess marijuana with the intent to
distribute and aiding and abetting possession with intent to distribute
marijuana, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846. See 21
U.S.C.A. §§ 841(a)(1) (West 1981), 846 (West 1981 & Supp. 1999).
The district court sentenced Huggins to a 210-month term of impris-
onment followed by a three-year term of supervised release, and
ordered him to pay a $10,000 fine.

Citing alleged insufficiency and inaccuracy of the trial transcript,
Huggins moved for a new trial. The district court denied his motion.
Huggins now appeals the court's order, arguing that the trial tran-
scripts are so deficient they fatally prejudice his right to a meaningful
appeal. Huggins also challenges the sufficiency of the evidence sup-
porting his conviction and the court's decision to sentence him as a
career offender.

Finding no reversible error, we affirm the district court's order of
conviction and sentencing. We also affirm the court's denial of Hug-
gins' motion for a new trial. Huggins urged us to adopt the less strin-
gent standard applied in other circuits granting defendants who
procure new counsel on appeal a new trial on merely a showing of
substantial and significant omissions in the trial transcript. We decline
to do so, however, and hold instead that a new trial is required only
when the defendant can show that a flawed transcript specifically
prejudices his ability to perfect an appeal.

                     2
I.

In July of 1994 the Carolina Freight Company of Phar, Texas noti-
fied Texas state investigators that a suspicious package had been
dropped off for shipment. The package was addressed to the Fountain
Body Shop in Ayden, North Carolina. Texas investigators obtained a
search warrant and opened the box, finding inside a tool box contain-
ing 127 pounds of marijuana.

The investigators arranged with their counterparts in North Caro-
lina to make a controlled delivery of the package. Upon receipt of the
package, North Carolina State Bureau of Investigation ("SBI") agents
opened it, confirmed the presence of marijuana within the toolbox,
and had Carolina Freight Company telephone the Fountain Body
Shop to set up the delivery.

Fountain McLawhorne ("McLawhorne"), owner of the Fountain
Body Shop, answered the Carolina Freight phone call and informed
the caller that he was not expecting a package. Eventually, McLaw-
horne agreed to take delivery of the package, stating that his friends
often ordered packages in the name of the Fountain Body Shop to
take advantage of various business discounts.

Prior to delivery, SBI agents took positions near the body shop to
perform surveillance during the transaction. North Carolina SBI
Agent Moser, posing as a Carolina Freight employee, delivered the
package to the Fountain Body Shop. McLawhorne accepted the pack-
age and paid the $97.94 freight bill, stating that he did not know who
had placed the order.

McLawhorne opened the package, found the tool box, and then,
without opening it, put the tool box back into its cardboard container.
McLawhorne later testified that he thought it strange that someone
would order a tool box for $97 that could be purchased locally for
$70.

Soon thereafter McLawhorne called the Carolina Freight Company
to tell them that he had inspected the package and was certain that it
was not his. McLawhorne asked Carolina Freight to pick up the pack-

                    3
age and refund his money. Carolina Freight notified North Carolina
SBI Agent Basemore of McLawhorne's call; when Basemore himself
telephoned the Fountain Body Shop McLawhorne again insisted that
the package did not belong to him. At Agent Basemore's request,
McLawhorne agreed to inquire of his friends whether anyone had
ordered the package.

Among others, McLawhorne asked Huggins, the proprietor of the
adjacent convenience store, whether he had ordered a tool box. McLa-
whorne knew that Huggins was awaiting delivery of an air compres-
sor, but was unsure whether Huggins might also have ordered the tool
box. Huggins responded that the tool box was not his, but that it
might belong to a Steve Johnson ("Johnson"), whom Huggins had
overheard mentioning an interest in buying a tool box.

Without conferring with Johnson, Huggins agreed to reimburse
McLawhorne for the freight charge and to store the box in his storage
building next door. McLawhorne then helped Huggins carry the pack-
age into a storage building on Huggins' property.

Soon after this transaction, Johnny Stanley ("Stanley") arrived at
Huggins' store. Stanley backed his truck up to the door of Huggins'
storage building. At trial, SBI agents testified that Huggins unlocked
the door to his storage building and, with Stanley's help, loaded the
box into the back of Stanley's truck. Within five minutes of driving
away from Huggins' store, Stanley was stopped by the County Sheriff
and placed under arrest for possession of marijuana.

Huggins was arrested soon after and both men were transported to
the SBI Office in Greenville, North Carolina. North Carolina SBI
agents driving Huggins to Greenville testified that Huggins asked
"what this was all about," but when the white truck Stanley was driv-
ing came into view in the SBI parking lot, Huggins said "now I
know."

The cardboard packaging, the tool box, and the marijuana were
stored in the locked evidence vault in the Greenville SBI office. Fol-
lowing his arrest, Stanley phoned a cohort, Jeffrey Williams
("Williams"), and told him where the seized marijuana was being
stored, indicating his desire to have the evidence destroyed. The fol-

                    4
lowing day, Williams broke into the SBI office, stole the marijuana,
and stashed it in the woods outside Greenville.

Williams was later arrested for the theft and began cooperating
with the Government. At trial, Williams testified that Stanley told
Williams that he was expecting a large shipment of marijuana and
that his last batch had arrived in an air compressor. Williams said that
Stanley confessed that, although "Huggins was not in the deal, they
were using [Huggins'] business as a delivery point." Incidentally,
Steve Johnson, the man Huggins suggested might have ordered the
tool box, was never produced at trial and it is unclear whether he even
existed.

At the conclusion of a two-day jury trial, Huggins was convicted
as charged and sentenced to 210 months of imprisonment. About six
months after his conviction, Huggins moved for the production of his
trial transcripts. The district court ordered Patricia Haynes
("Haynes"), the court reporter, to complete the transcripts. After wait-
ing a month and a half, Huggins moved the court to show cause why
Haynes should not be held in contempt for failing to produce the tran-
scripts. Over the next year, Huggins filed several motions for a new
trial and the district court denied them all, holding that the errors
about which Huggins complained were insufficient to merit a new
trial.

Huggins appeals the district court's order denying his motion for
a new trial.

II.

Huggins challenges the sufficiency and accuracy of the transcript
of his trial; he alleges that it contains so many omissions and inaccu-
racies that his appellate counsel cannot perfect his appeal and a new
trial is warranted. We review the district court's denial of a motion
for a new trial for abuse of discretion. See United States v. Arrington,
757 F.2d 1484, 1486 (4th Cir. 1985).

A.

A criminal defendant has a right to a meaningful appeal based on
a complete transcript. See Hardy v. United States, 375 U.S. 277, 279

                    5
(1964). When a transcript is less than complete, the court must deter-
mine whether the alleged omissions or deficiencies justify a new trial.
In United States v. Gillis, we held that whether an omission from a
transcript warrants a new trial depends on whether the appellant has
demonstrated that the omission "specifically prejudices his appeal
. . . ." 773 F.2d 549, 554 (4th Cir. 1985).

Although he acknowledges our ruling in Gillis , Huggins urges us
to follow the Fifth and Eleventh Circuits' view that a more lenient
standard should apply where a defendant has procured new appellate
counsel. Relying on the Fifth and Eleventh Circuit's holdings in
United States v. Selva, and United States v. Preciado-Cordobas,1
Huggins argues that when a defendant's appellate counsel did not rep-
resent him at trial, he should be granted a new trial when there are
significant and substantial omissions from his trial transcript, rather
than being required to make a showing of specific prejudice. See
Selva, 559 F.2d 1303, 1306 (5th Cir. 1977); Preciado-Cordobas, 981
F.2d 1206, 1212 (11th Cir. 1993). The Fifth and Eleventh Circuits
reasoned that an appellate attorney who was present at trial would be
in a better position to highlight specific prejudice resulting from the
omitted portions of the transcript, while a new appellate attorney
would be unable to identify and correct transcript irregularities due to
his absence from the trial. See Selva, 559 F.2d at 1306, Preciado-
Cordobas, 981 F.2d at 1212.

This approach has not been widely followed, however. The major-
ity of circuits have maintained that to obtain a new trial, whether or
not appellate counsel is new, the defendant must show that the tran-
script errors specifically prejudiced his ability to perfect an appeal.2
_________________________________________________________________
1 The Eleventh Circuit in Preciado-Cordobas was bound by the Fifth
Circuit's decision in Selva because Selva was issued before the Fifth Cir-
cuit split in October 1981. See Bonner v. City of Pritchard, Alabama, 661
F.2d 1206, 1207 (11th Cir. 1981).
2 See United States v. Brand, 80 F.3d 560, 563 (1st Cir. 1996) (rejecting
Selva and requiring a showing of specific prejudice); United States v.
Sierra, 981 F.2d 123, 126 (3d Cir. 1992) (same); United States v.
Antoine, 906 F.2d 1379, 1381 (9th Cir. 1990) (rejecting Selva's rigid dis-
tinction based on the absence or presence of new counsel on appeal when
evaluating a motion for new trial); United States v. Gallo, 763 F.2d 1504,
1530 (6th Cir. 1985) ("We disagree, however, that a separate, less
demanding test need be applied when a defendant is represented by new
counsel on appeal.").

                    6
Although we recognize the Fifth and Eleventh Circuits' reasoning for
the two-part standard has its advantages -- namely fairness to defen-
dants who procure new counsel on appeal -- we think such a rule
creates the perverse incentive of encouraging defendants to dismiss
trial counsel and seek new appellate counsel whenever questions arise
over the sufficiency of a trial transcript. Accord Sierra, 981 F.2d at
126. Our ruling in Gillis illustrates our preference for requiring a
showing of specific prejudice and in concurrence with the majority
view, we explicitly reaffirm that holding today.

B.

We turn now to the question of whether the alleged transcript
errors specifically prejudiced Huggins' efforts to appeal. Prejudice is
found when a trial transcript is so deficient that it is "impossible for
the appellate court to determine if the district court has committed
reversible error." United States v. Nolan, 910 F.2d 1553, 1560 (7th
Cir. 1990). A review of Huggins' transcript reveals that, although
there are errors and omissions, they do not prevent us from reviewing
the district court's ruling, and thus do not rise to the level of specific
prejudice.

As alleged, some of the dates on which events supposedly occurred
were recorded inaccurately in the transcript. None of the inaccuracies
undermine the strength of the evidence against Huggins, however.
The errors amount to nothing more than typographical errors, for
example, 1995 appears when the actual event happened in 1994. In
each of these instances, the actual year the event occurred is consis-
tently and readily verifiable in other places within the transcript.

Huggins also asserts that the presence of the word"indecipherable"
in various places throughout the transcript renders the surrounding
text incomprehensible. "Indecipherable" only appears in a few places
and replaces nothing more than a single word in context or, in one
instance, two sentences. Even though some of these omissions are
within the government's closing arguments, the ideas conveyed are
easily decipherable from the surrounding text. The same is true of the
two sentences that are omitted; the concepts and thoughts communi-
cated are similarly evident from the context and appellate counsel

                     7
should have been able to glean all of the information necessary to
appeal any errors.

Finally, Huggins points to Agent Basemore's allegedly erroneous
testimony regarding finding Huggins' fingerprints as an example of
the fatal inaccuracies within the transcript. During his direct examina-
tion, Basemore initially suggested that Huggins' fingerprints were
found on the package before it was even delivered to the Fountain
Body Shop. Huggins argues that incorrect statements like Basemore's
prove that the transcript is flagrantly deficient.

This argument is meritless. A quick reading of this section of the
transcript makes clear that there was no error here. Basemore's evi-
dently inaccurate statement resulted from his answering a series of the
prosecutor's questions that departed from the chronological narrative.
The awkward line of questioning created this apparent inaccuracy, not
the faulty recording of the transcript. Furthermore, Basemore cor-
rected his statement on the very next page of the transcript stating that
Huggins' fingerprints were found on the package only after delivery
giving appellate counsel adequate information from which to perfect
Huggins' appeal.

Perhaps the most damaging counter to Huggins' argument, how-
ever, is the fact that the district court gave Huggins ample opportunity
to correct any remaining transcript errors and he declined to do so. In
response to Huggins' initial motion for a new trial, the district court
held a hearing to discuss the sufficiency of the transcript. In an effort
to correct alleged errors and omissions, the district court supple-
mented the transcript with copies of documents and trial notes
retained by the court. The court then certified the record stating its
complete satisfaction that after careful review the transcript provided
Huggins with sufficient information to perfect an appeal. Convinced
that all transcript errors had been corrected, the district court still
invited Huggins to submit a proposed statement indicating what he
believed remained missing from the transcript. Huggins failed to sub-
mit such a statement and instead filed a renewed motion for a new
trial, reiterating the same claims of error.

After carefully reviewing the record, it appears that the inaccura-
cies and omissions in the transcript were not substantial in amount

                     8
and did not occur at particularly significant periods during the trial.
In summary, they did not specifically prejudice Huggins' ability to
identify issues for appeal. Finding that the district court did not abuse
its discretion by denying Huggins' motion for a new trial, we affirm.

III.

Huggins also argues that the evidence presented at trial was insuffi-
cient to support his conviction. When assessing the sufficiency of the
evidence of a criminal conviction on direct review,"[t]he verdict of
[the] jury must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942).

To obtain a conspiracy conviction pursuant to 18 U.S.C. § 846, the
government must prove that (1) Huggins and Stanley had an agree-
ment to possess marijuana with the intent to distribute, (2) Huggins
knew of the conspiracy, and (3) Huggins knowingly and voluntarily
became part of the conspiracy. See United States v. Burgos, 94 F.3d
849, 857 (4th Cir. 1996). The government may show the existence of
a conspiracy through either direct or circumstantial evidence. See id.

Huggins asserts no specific allegations of error, making only a gen-
eral assertion that there was "simply no evidence" that he was
involved in the conspiracy any more than McLawhorne. The record
shows otherwise, however. The evidence shows that although unsure
about whether his friend Steve Johnson actually ordered the tool box,
Huggins paid the $97 freight bill and took possession of the package.
It was also established that Huggins then notified, not Steve Johnson,
but Stanley, who came and picked up the parcel. The evidence made
clear that Stanley and Huggins took some pains to take a circuitous
route while moving the package from the storage building to Stan-
ley's truck. Based on this evidence as well as other circumstantial evi-
dence, reasonable jurors could have found that all elements of the
alleged conspiracy were proven and that Huggins was guilty as
charged.

Huggins also insists that because the chain of custody of the mari-
juana was broken when the drugs were stolen from the SBI office,

                     9
any evidence regarding the marijuana should be disregarded. There is
little merit to this contention.

The testimony of Agent Basemore and Williams -- the man who
confessed to stealing the marijuana from the SBI after being tipped
off to its location by Stanley -- establish that the marijuana presented
at trial was the same as that received by Huggins and removed by
Stanley. Both Williams and Basemore testified to the exact location
of the marijuana after it was stolen from the SBI office and, when
state agents located the marijuana in the woods, it was in the same
marked tool box it was in when delivered to McLawhorne's shop. The
break in the chain of custody caused by the robbery was addressed by
Basemore and Williams' testimony and we find that a reasonable trier
of fact could have relied on this evidence when deciding to convict
Huggins.

When taking the view most favorable to the government, we find
that there was substantial evidence supporting Huggins' conviction
and we affirm the jury's verdict.

IV.

Finally, Huggins argues that the district court erred by sentencing
him as a career offender pursuant to § 4B1.1 of the United States Sen-
tencing Guidelines Manual ("USSG"). See USSG § 4B1.1 (1998). We
review the sentencing court's findings of fact related to sentencing for
clear error and give deference to its application of the Sentencing
Guidelines to the facts. See United States v. Cutler, 36 F.3d 406, 407
(4th Cir. 1994).

To qualify as a career offender, a defendant must have "at least two
prior felony convictions of either a crime of violence or a controlled
substance offense." USSG § 4B1.1(3). "Two prior felony convictions"
is defined in USSG § 4B1.2(c)(2), which incorporates USSG
§ 4A1.2(a), (b), and (c). Section 4A1.2(a)(2) provides that prior sen-
tences imposed in unrelated cases are counted separately, but prior
sentences imposed in related cases are counted together as a single
sentence. See USSG § 4A1.2(a)(2). Among other things, prior sen-
tences are related if they were consolidated for trial or sentencing. See
USSG § 4A1.2 Application Note 3. Huggins contends that, because

                     10
the two prior convictions relied on by the district court to classify him
as a career offender were consolidated for sentencing, they are related
offenses counted together as a single sentence. The government
counters that, because there was an intervening arrest, the two sen-
tences cannot be related and should be counted separately.

The Commentary to the USSG provides that "[p]rior sentences are
not considered related if they were for offenses that were separated
by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense)." Id. Huggins' Pre-
Sentencing Report ("PSR") shows that there was an intervening
arrest. Paragraphs 16 through 19 of the PSR indicate that Huggins
was arrested for his first offense on March 3, 1987, one month prior
to committing his second offense on April 2, 1987. According to the
USSG Commentary, Huggins' April arrest is clearly an intervening
arrest. Because there was an intervening arrest, Huggins cannot avoid
classification as a career offender by arguing that his offenses were
related.

Finding no error, we affirm the district court's application of the
career offender statute here.

V.

For the foregoing reasons, we affirm the district court's denial of
Huggins' motion for a new trial.

AFFIRMED

                     11
