UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 95-5215

TOMMY WRIGHT LANIER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-94-25-F)

Argued: November 1, 1996

Decided: December 17, 1996

Before HALL and LUTTIG, Circuit Judges, and THORNBURG,
United States District Court Judge for the Western District of
North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Rodney Duane Davis, WEST VIRGINIA UNIVERSITY
COLLEGE OF LAW, Morgantown, West Virginia, for Appellant.
John Samuel Bowler, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Gerald G. Ashdown,
WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Morgan-
town, West Virginia, for Appellant. Janice McKenzie Cole, United
States Attorney, J. Douglas McCullough, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The defendant, Tommy Wright Lanier, was charged in a bill of
indictment along with five co-defendants of conspiring to possess
with the intent to distribute marijuana in violation of 21 U.S.C. § 846.
Following trial by jury, a verdict of guilty, and sentencing, the defen-
dant appeals.

The facts as developed in the course of trial are as follows. The
defendant met his co-defendant, Angel Hernandez, at a Wilmington,
North Carolina, transmission shop around April 1994. He asked if
Hernandez could obtain marijuana and by August was advised that
marijuana could be supplied and made available to him in Wilming-
ton. Several days before the marijuana actually arrived, the defendant
was informed what the price would be and told that there would be
approximately 200 pounds of marijuana. The amount seized at time
and place of delivery, however, was approximately 600 pounds.

On the night of delivery, in the parking lot of defendant's shop, the
marijuana was in the process of being unloaded when an airplane
without lights began circling overhead. This alerted the defendant,
who immediately told the persons involved to disperse and remove
the van containing the marijuana. Much of defendant's conversation
was captured through a receiver being worn by a government infor-
mant. As the parties attempted to leave, the defendant and the other
co-defendants were arrested and charged as indicated.

Prior to trial, the government filed a motion to require the defen-
dant to supply a voice exemplar. Defendant's attorney was served

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with a copy of the motion. No response was filed by the defendant's
attorney. Four days after the motion was filed, the district court
ordered defendant to provide an exemplar of his voice. Two days
thereafter he did so by reading a transcript provided him by the U.S.
Attorney. That transcript was derived from the tape recording made
during the sting operation. The reading thus made was used during the
course of the trial as a voice exemplar. Also during the course of the
trial, the defendant was questioned on cross examination about prior
involvement with marijuana.

The defendant contends that the taking of the exemplar and its later
use at trial, the application of sentencing guidelines, and the govern-
ment's questioning about prior involvement with marijuana are errors
for which this court should grant relief. For the reasons set forth, we
disagree and affirm.

I.

The defendant's first and main contention is that use of the voice
exemplar violated his Fifth and Sixth Amendment rights. Questions
concerning a violation of constitutional rights are reviewed de novo.
In this case, however, the court does not find the use of the voice
exemplar to be a violation of constitutional rights and thus determines
the appropriate standard of review to be abuse of discretion. United
States v. Wade, 388 U.S. 218 (1967); United States v. Dionisio, 410
U.S. 1 (1973).

It is well-settled that the sound of a defendant's voice is not itself
"testimonial" and thus not covered by the Fifth Amendment's protec-
tion against compelled self-incriminating testimony. See Dionisio,
410 U.S. at 8; Doe v. United States, 487 U.S. 201, 210 (1988); see
also United States v. Oriakhi, 57 F.3d 1290, 1299 (4th Cir.), cert.
denied, 116 S. Ct. 400 (1995). Lanier argues that his case is different
because in making the exemplar, he was made to "fill in the gaps" in
the original recording, thus allowing the police to elicit substantive
incriminating testimony. Yet the appellant cites no portion of the
record supporting that bald assertion and indeed elsewhere complains
that the exemplar, rather than containing additions to the original
recording, consisted of "the repetition of the content of the infor-
mant's recording." Appellant's Br. at 11 (emphasis provided). Such

                    3
repetition of potentially incriminating words is not the kind of com-
pelled communication or disclosure of incriminating evidence prohib-
ited by the Self-Incrimination Clause of the Fifth Amendment. See
United States v. Wade, 388 U.S. 218, 222-23 (1967) (compelling
defendant to speak, within hearing distance of witnesses, words pur-
portedly uttered by criminal was for identification and did not compel
testimony); Burnett v. Collins, 982 F.2d 922, 927, n.5 (5th Cir. 1993)
(compelling utterance of robber's words before jury for identification
purposes did not elicit testimony); United States v. Domina, 784 F.2d
1361, 1371 (9th Cir. 1986) (compelling utterance of robber's words
before jury for identification purposes does not violate self-
incrimination principles); see also Doe, 487 U.S. at 210 ("to be testi-
monial, accused's communication must itself, explicitly or implicitly,
relate factual assertion or disclose information").

Lanier next claims that taking of the exemplar without the presence
of his lawyer violated his Sixth Amendment right to have counsel
present at all "critical stages" of a criminal proceeding, as required by
United States v. Wade, supra. Wade held that the Sixth Amendment
entitles criminal defendants to the assistance of counsel at post-
indictment lineups. It also stands for the more general proposition that
a defendant is entitled to counsel in all "critical" confrontations prior
to trial where "potential substantial prejudice to [a] defendant's rights
inheres in the particular confrontation," and counsel could help "avoid
that prejudice." 388 U.S. at 227. The Supreme Court discussed this
"critical" stage right in the companion case to Wade, Gilbert v.
California, 388 U.S. 263 (1967). In Gilbert , the Court held that taking
a defendant's handwriting exemplar was not a critical stage requiring
the presence of an attorney because the potential prejudicial effect of
such samples could be remedied through the adversarial process at
trial, e.g., by defense production of competing exemplars. Id., 388
U.S. at 267.

Following the Supreme Court's reasoning in Gilbert, this Circuit
has held that the taking of a voice exemplar, like the taking of hand-
writing exemplars and unlike the post-indictment lineup in Wade, is
not a critical stage during which the Sixth Amendment requires the
presence of an attorney. Oriakhi, 57 F.3d at 1299.

Lanier contends that this Circuit's Oriakhi decision is not control-
ling because his exemplar was introduced as substantive evidence. He

                    4
reasons that the exemplar's use "relates back" to the taking of the
exemplar and makes it a critical stage requiring the presence of coun-
sel. We reject this contention for at least two reasons. First, the defen-
dant's voice exemplar was not introduced or admitted as substantive
evidence. Indeed, the district judge's repeated, comprehensive admo-
nitions that the jury should consider the exemplar tape and transcript
solely for identification purposes makes it clear that they were not. By
contrast, the substantive content of the original tape was established
by its being played and compared with a written transcript of that
recording. The defense had ample opportunity to attack the original
recording's intelligibility and accuracy, a fact demonstrated by the
defendant's having taken the stand and interpreted (rather than
denied) the statements attributed to him. J.A. at 224-36, 246. Second,
the Sixth Amendment does not and should not relate back to require
the presence of counsel at the taking of Lanier's exemplar. Such an
approach would classify the taking of a voice exemplar as a condi-
tional critical stage depending on the exemplar's subsequent use at
trial. That standard, in addition to being unworkable, stands at odds
with this court's previous holding that the taking of voice exemplars
is simply not a critical stage for Sixth Amendment purposes. Oriakhi,
57 F.3d at 1299. Lanier was not entitled to have an attorney present
at the taking of his voice exemplar.

Defendant next contends that reversible error was committed when
the government failed to disclose a transcript of the voice exemplar
prior to trial. Apparently, the defendant attempted to have this very
material suppressed in a motion in limine. J.A. at 55-56. "Decisions
regarding the admission or exclusion of evidence are committed to the
sound discretion of the district court and will not be reversed absent
an abuse of discretion." United States v. Lancaster, 96 F.3d 734, 744
(4th Cir. 1996) (en banc). We find no evidence of such an abuse of
discretion here, especially in light of the fact that the defense had
access to the transcripts from which the exemplar (and thus the exem-
plar transcript) was made. The availability of the original transcript
makes it plain that suppressing the exemplar transcript would not
have altered the outcome of this trial. See United States v. Bagley, 105
S. Ct. 3375, 3383 (1985); cf., United States v. Glover, 846 F.2d 339,
342 (6th Cir. 1988) (finding no reversible error in failure to present
handwriting exemplar where original writing had been provided and
defendant could produce his own exemplars).

                     5
II.

Defendant next contends that the district court incorrectly deter-
mined his criminal history category. The deference due the sentencing
judge's application of the sentencing guidelines to the facts at issue
varies with each case. It is clear, however, that where the issue
depends primarily on a factual determination, the court will apply the
clearly erroneous standard. If the issue turns primarily on a legal
interpretation, the review moves closer to de novo. United States v.
Castner, 50 F.3d 1267, 1274 (4th Cir. 1995); United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

Defendant first maintains that his criminal history was incorrectly
elevated for a state conviction that was dismissed on appeal after sen-
tencing. (The state case was pending appeal at the time of his sentenc-
ing hearing.) Defendant was found to have a criminal history of VI
based on the total number of points assigned for his prior convictions.
The sentencing guidelines provide that "[p]rior sentences under
appeal are counted [in calculating criminal history]." U.S.S.G.
§ 4A1.2(l). Application Note 6 to that guideline provides that a sen-
tence resulting from a conviction that has been reversed or vacated
because of an error of law, subsequently discovered evidence, or a
constitutional invalidity is not to be counted. U.S.S.C., Guidelines
Manual, § 4A1.2, Application Note 6 (1995).

Defendant does not claim that the prior sentence was vacated or
reversed on appeal due to an error of law or constitutional invalidity.
He merely states that while the appeal was pending, the state prosecu-
tor dismissed the charges. Nothing more is presented in the record.

Where a state conviction considered for federal sentencing is sub-
sequently dismissed for reasons other than innocence or errors of law,
it is properly counted in the criminal history. See United States v.
Ramsey, 999 F.2d 348, 351 (8th Cir. 1993).

          A conviction is considered final for criminal history pur-
          poses at the time of the trial court's determination of guilt.
          Under U.S.S.G. § 4A1.2(a)(1), a "prior sentence" is defined
          as "any sentence previously imposed upon adjudication of
          guilt, whether by guilty plea, trial, or plea of nolo con-

                    6
         tendere." This language contains no requirement that a sen-
         tence be upheld on appeal prior to inclusion in the criminal
         history calculation.

United States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992) (citing
United States v. Mackbee, 894 F.2d 1057 (9th Cir.), cert. denied, 495
U.S. 962 (1990)) (emphasis in original).

Next, defendant claims the trial court improperly found he could
reasonably foresee 600 pounds of marijuana involved in the conspir-
acy. However, defendant made no objection to this quantity at his
sentencing hearing.

         A defendant's failure to object to a sentencing issue
         amounts to a waiver of his right to raise that issue on appeal,
         absent plain error. Under this standard, we must find that (1)
         an error was committed, (2) the error was plain, and (3) the
         error affected the defendant's substantial rights. Once these
         threshold requirements are satisfied, we must also decide
         whether the error "seriously affect[ed] the fairness, integrity,
         or public reputation of judicial proceedings."

United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996) (cita-
tions omitted).

Evidence admitted during the course of the trial indicated the mari-
juana seized at the time of defendant's arrest amounted to 598 pounds
and 29 ounces. J.A. at 141. The presentence report also stated the
amount of marijuana to be approximately 600 pounds. J.A. at 282,
287. No objection was made at the time of sentencing in regard to the
amount of drugs with which he was being charged. J.A. at 244-50.

         The defendant has an affirmative duty to make a showing
         that the information in the presentence report is unreliable
         and articulate the reasons why the facts contained therein
         are untrue or incorrect . . . [W]ithout an affirmative showing
         that the information is inaccurate the court is free to adopt
         the findings of the [presentence report] without more spe-
         cific inquiry or explanation. . . . The burden is on the defen-

                    7
          dant to show the inaccuracies or unreliability of the
          presentence report.

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (citations
omitted). Under the facts of this case where the defendant was accept-
ing delivery of approximately 600 pounds of marijuana at his local
place of business and was arrested in the midst of the off-loading
operation, we do not find any error in the trial judge's conclusion that
600 pounds of marijuana should be attributed to the defendant. This
determination finds full support by a preponderance of the evidence.

It would also appear to be appropriate to include the drug amounts
handled by his co-conspirators (if it be doubted that the defendant on
his own should be charged with the entire amount) since all were act-
ing "in furtherance of the jointly undertaken activity" with the defen-
dant, and in a way that was "foreseeable [by the defendant] in
connection with the criminal activity." United States v. Banks, 10
F.3d 1044, 1057 (4th Cir. 1993), cert. denied sub nom. Blow v. United
States, 114 S. Ct. 1850 (1994), and cert. denied sub nom. Copeland
v. United States, 114 S. Ct. 2681 (1994); see U.S.S.C., Guidelines
Manual, §§ 1B1.3(a)(1)(B), Application Note 2 (1995).

III.

The last assignment of error stems from questions posed during the
defendant's cross-examination. On direct examination, the defendant
testified that he became upset when he saw Hispanics at his property
and heard the surveillance plane because he had been in prison for 12
years as the result of a robbery conviction. J.A. at 208-09. Since his
release from prison, the defendant stated he had a"legitimate occupa-
tion" and was not involved with the drug dealers who showed up at
his business on the night of the arrest because,"I can't stand the trou-
ble; I had enough." Id., at 209. On cross examination, the prosecutor
posed the following question: "I take it from your statement, that you
have been living a blameless life since you have been released from
prison, and you don't want any part in trouble?" Id., at 220. Defen-
dant answered, "I try to avoid it if I can, yes, sir." Id. The prosecutor
then asked, without objection, if the defendant had engaged in any
criminal activity since his release from prison, to which the defendant
answered, "[a]bsolutely not." Id. Next the government asked, again

                     8
without objection, if the defendant had not "dabbled" in the drug busi-
ness; defendant answered no. Id. Finally, when the government asked
about a 1993 marijuana charge, defense counsel objected. Id., at 221.

The district court ruled that the prosecution could not ask about
criminal "charges" (and instructed the jury to that effect), but it did
permit questions that would show defendant led anything but a
"blameless life" because the defense had "opened the door" to this
line of questioning on direct. Id. The only questions asked and
answered along those lines were three. As just mentioned, the govern-
ment asked if the defendant "dabbled" in the drug business and the
defendant replied that he had not. The prosecutor then asked whether
defendant had been "found" in possession of marijuana in 1993.
Defendant replied that while "marijuana was taken off some property
. . . I have not been convicted of anything." J.A. at 221. Later, the
prosecutor asked whether the defendant ever possessed marijuana for
resale, to which Lanier replied, "I possessed nothing; no possession
for resale." Id. at 227. Given that the defendant opened the door on
direct concerning his avoidance of trouble, allowing these questions
to be asked and answered for impeachment purposes constituted no
error, harmless, plain or otherwise, and was fully within the trial
judge's discretion.

CONCLUSION

For the reasons stated herein, the judgment of the district court is
hereby

AFFIRMED.

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