UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                 No. 97-4288

DAVID TAYLOR,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                 No. 97-4483

STEVE HAIRSTON, a/k/a Shawn,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                   No. 97-4501
MARVIN BAILEY, a/k/a Head, a/k/a
Larry Anderson,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                 No. 97-4517

KAREEM B. WOODS, a/k/a J. J.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 97-4795
RICHARD L. DIXON, a/k/a Earl,
a/k/a E,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge;
Elizabeth V. Hallanan, Senior District Judge.
(CR-96-191)

Argued: September 23, 1998

Decided: October 22, 1998

Before WILKINS, NIEMEYER, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated in part by unpublished per curiam opin-
ion.

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COUNSEL

ARGUED: Paul A. McKenna, MCKENNA & OBRONT, Coconut
Grove, Florida, for Appellant Dixon; George B. Vieweg, LESTER &
VIEWEG, Charleston, West Virginia, for Appellant Bailey; Jacque-
line Ann Hallinan, Charleston, West Virginia, for Appellant Woods;
Nathan A. Hicks, Jr., Charleston, West Virginia, for Appellant Hairs-
ton; Gregory Marshall Courtright, COLLINS & COURTRIGHT,
Charleston, West Virginia, for Appellant Taylor. Miller Allison

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Bushong, III, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States
Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

David Taylor and Steve Hairston appeal their sentences and Mar-
vin Bailey, Kareem B. Woods, and Richard L. Dixon appeal their
convictions and sentences for various drug-related crimes. Because
we conclude that Dixon was subjected to double jeopardy when he
was convicted of engaging in both a continuing criminal enterprise
(CCE), see 21 U.S.C.A. § 848 (West Supp. 1998), and a conspiracy
to distribute and to possess with the intent to distribute cocaine and
cocaine base, see 21 U.S.C.A. § 846 (West Supp. 1998), we vacate
Dixon's conviction and sentence for the latter offense. Finding Appel-
lants' remaining contentions to be without merit, we otherwise affirm.

I.

The convictions and sentences at issue arise out of a large conspir-
acy to transport powder cocaine from Florida to West Virginia, con-
vert the cocaine powder into cocaine base, establish cocaine base
houses, and sell the cocaine base. On the basis of his involvement in
this enterprise, Dixon was charged with several crimes, only two of
which are relevant here.

Count One of the indictment alleged that during the period of Janu-
ary 1993 until September 1996, Dixon engaged in a continuing series
of violations of 21 U.S.C.A. §§ 841(a)(1) (West 1981)1 and 846,
_________________________________________________________________
1 Section 841(a)(1) makes it unlawful "knowingly or intentionally ... to
manufacture, distribute, or dispense, or possess with intent to manufac-
ture, distribute, or dispense, a controlled substance."

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which were undertaken in concert with five or more persons of whom
he was the organizer, supervisor, and manager, and from which he
obtained substantial income and resources. See 21 U.S.C.A. § 848(c).
Count Two separately alleged that during the same period, Dixon
conspired with several named persons and others to violate 21
U.S.C.A. § 841(a)(1). After being convicted of both crimes, Dixon
received a mandatory life sentence for the CCE offense, see 21
U.S.C.A. § 848(b)(1), and a concurrent life sentence for conspiracy.
Dixon was also ordered to pay a $100 special assessment on each
count, see 18 U.S.C.A. § 3013(a)(2)(A) (West Supp. 1998), and a
$25,000 fine.

II.

Dixon argues that his convictions for CCE and conspiracy to dis-
tribute and to possess with the intent to distribute cocaine and cocaine
base subjected him to double jeopardy because the conspiracy charge,
which was based on the same underlying conduct as the CCE charge,
is a lesser included offense of CCE. See Rutledge v. United States,
517 U.S. 292, 300 (1996). Because Dixon failed to raise this objection
to the district court, our review is for plain error. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). In
order to establish our authority to notice an error not preserved by a
timely objection, Dixon must show that an error occurred, that the
error was plain, and that the error affected his substantial rights. See
Olano, 507 U.S. at 732; United States v. Cedelle, 89 F.3d 181, 184
(4th Cir. 1996). Even if Dixon can satisfy these requirements, correc-
tion of the error remains within our sound discretion, which we
"should not exercise ... unless the error `seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings.'" Olano,
507 U.S. at 732 (second alteration in original) (quoting United States
v. Young, 470 U.S. 1 (1985)); see United States v. David, 83 F.3d 638,
641 (4th Cir. 1996).

The Government wisely does not dispute that convicting Dixon on
the conspiracy charge was plain error, see Rutledge, 517 U.S. at 300,
but nevertheless asserts that Dixon was not prejudiced by the addi-
tional conviction because he received a mandatory life sentence for
CCE. This argument is simply incorrect. The Supreme Court has held
that imposition of a special assessment is, by itself, sufficient to war-

                     4
rant vacatur of an unconstitutional conviction. 2 See id. at 301. Under
the circumstances of this case, we elect to exercise our discretion to
correct the error. Accordingly, we vacate Dixon's conviction for con-
spiracy to possess with the intent to distribute cocaine and cocaine
base.

III.

In sum, we vacate Dixon's conviction for conspiracy to distribute
and to possess with the intent to distribute cocaine and cocaine base.
In addition, having had the benefit of extensive briefing and argu-
ments of counsel, we conclude that the remaining allegations of error
asserted by Appellants are without merit. Consequently, we affirm the
remainder of Appellants' convictions and sentences.

AFFIRMED IN PART AND VACATED IN PART
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2 The Court further noted in Rutledge that, even without considering the
special assessment, the adverse consequences that could result from an
additional conviction, such as delays in parole eligibility or harsher sen-
tences for future offenses under a recidivist statute, warrant vacatur. See
id. at 301-03. We note that during oral argument, the Government, con-
trary to its brief, conceded that Dixon's conviction for conspiracy should
be vacated.

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