                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4659


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DOUGLAS LEE STALLWORTH,

                Defendant - Appellant.



                             No. 09-4796


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRUCE EDWARD BAUMGARDNER,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-36; 1:08-cr-00024-jpj-pms-41)


Argued:   October 25, 2011               Decided:   January 24, 2012


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED:   Timothy Worth McAfee, MCAFEE LAW FIRM, PC, Norton,
Virginia; Dennis Jones, Lebanon, Virginia, for Appellants.
Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee. ON BRIEF: Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Douglas Stallworth and Bruce Baumgardner were convicted as

participants in a large drug-trafficking conspiracy in Bristol,

Virginia, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).                   In

addition, Baumgardner was convicted of maintaining a place for

the purpose of distributing drugs, in violation of 21 U.S.C.

§ 856(a)(1).        Because each defendant had two prior felony drug

convictions,        the    district     court     sentenced   each    to     life

imprisonment, in accordance with 21 U.S.C. § 841(b)(1)(A).

     On appeal, Stallworth and Baumgardner challenge both their

convictions and sentences, assigning numerous errors.                     For the

reasons that follow, we affirm.


                                         I

     At some time during the 2001-2003 period, Derek Evans, a

long-time distributor of crack cocaine, moved from Johnson City,

Tennessee,     to    the    Bristol,    Virginia/Bristol,     Tennessee      area

(“Bristol”) because the drug market in Johnson City had become

“too congested.”           Stallworth told Evans, it would be “a lot

easier” in Bristol because the market was “wide open” and there

was “no territorial situation” with which to contend.

     After    Evans       moved   to   Bristol,    he   together   with    Bryant

Pride, Kerry Lee, and Oedipus Mumphrey headed up a large cocaine

distribution operation.            For several months in 2005 or 2006,


                                         3
Evans and Lee brought into the area as much as five kilograms of

cocaine at a time.                  And during the period of 2005 to 2007,

Mumphrey         also     supplied    Evans    with      cocaine,        making     deliveries

every week to ten days of up to three kilograms at a time.

Evans,          Pride,    and     Mumphrey     developed        networks,       distribution

points,          and     sub-distributors.              Evans      testified        that       the

conspiracy         would        purchase   a   kilogram       of    cocaine        for     around

$25,000 and then would cook it into crack cocaine, which members

were able to sell for between $36,000 and $42,000.                                       He also

testified that the conspiracy had from 350 to 500 customers.

       On March 28, 2008, 51 persons were indicted and charged

with conspiracy to traffic in 50 grams or more of crack cocaine

and 500 grams or more of cocaine powder, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A).                     Stallworth and Baumgardner were

named as two of the conspirators, and, in addition, Baumgardner

was     charged          with    maintaining        a   place      for    the      purpose      of

distributing             illegal     drugs,    in       violation        of   21    U.S.C.       §

856(a)(1).

       A        jury     convicted     Stallworth         and      Baumgardner           of    the

conspiracy charge and Baumgardner of the charge of maintaining a

place      for     drug    distribution.            Because     each     defendant       had    at

least two previous felony drug convictions, the court sentenced

each       to     the    statutorily       mandated       minimum        sentence     of      life

imprisonment.

                                                4
       Stallworth and Baumgardner filed appeals, each challenging

aspects of their convictions and sentences.


                                           II

       Stallworth and Baumgardner contend that the evidence was

insufficient to convict them of conspiracy.                         They acknowledge

that the evidence shows that they were addicts and customers of

the conspiracy, but they argue that a buyer/seller relationship

between them and members of the conspiracy does not establish

participation in the conspiracy.

       We      agree     that     evidence      of     a        simple        buyer/seller

relationship is insufficient to support a conspiracy conviction.

More is required.          As we stated in United States v. Burgos, 94

F.3d    849,    862    (4th     Cir.   1996)    (en   banc),      to     be    part    of    a

conspiracy      a     defendant    must   knowingly        and    voluntarily         become

part of the conspiracy.            “Only a slight connection need be made

linking a defendant to the conspiracy to support a conspiracy

conviction.”        Id. at 862.

       In this case, Stallworth and Baumgardner do not take issue

with the fact that Evans, Pride, Lee, and Mumphrey headed up a

large       cocaine    distribution       conspiracy       in    the     Bristol      area.

Rather, they argue that the evidence shows only that they were

simply customers of that operation and not co-conspirators.                                 In

making that argument, however, they overlook several items that


                                            5
were proved at trial.                 It was Stallworth who persuaded Evans to

bring    his      drug    distribution          business    to   Bristol    because       the

market      was    wide        open    there.        Once    Evans    established         his

operation in Bristol, he saw Stallworth virtually every day that

the   two      were      out    of    prison.        More    importantly,        Stallworth

assisted Evans by arranging drug transactions and also acted as

a   street-level          distributor.           Evans      testified,     “[Stallworth]

called me up.            I mean, you know, I seen him about every day.                      I

talked to him, you know, we kick it.                     He knows people that wants

something, wants to get high, I got what they need to get high,

so that’s the kind of relationship we had.                           He would come see

me, holler at me, I hit him, and that’s it.”                             Summarizing the

arrangement Evans stated, “When people wanted to get high, they

would call [Stallworth] and he would call me, and I would hook-

up with [Stallworth], and then he goes serve them.”                              Moreover,

the record shows a continuous stream of transactions in which

Stallworth        bought       from     Evans    three      to   seven    days    a    week,

frequently        in      distribution          quantities.          Further,         several

witnesses testified to buying drugs from Stallworth.

      The record reflects much of the same involvement on the

part of Baumgardner.                  He too was a street-level distributor,

perhaps selling even more extensively than Stallworth.                                One of

the conspirators, Paul Vaughn, testified that Baumgardner bought

a quarter-ounce of crack (roughly 7 grams) from Mumphrey three-

                                                 6
to-four times per day in 2007.                       He was moving so much cocaine

that he was known as “VIP.”                      Numerous witnesses testified to

buying     drugs     from     Baumgardner,           especially    at     his    residence,

which was used as a distribution point for cocaine.

      As    the     district       court       concluded,    “In   sum,     the       evidence

showed that Baumgardner and Stallworth frequently bought crack

from high-level members of the Evans drug organization and sold

it   to    various      users      on   multiple        occasions.        This       certainly

qualifies as more than ‘evidence of a buy-sell transaction.’”

(Quoting United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir.

1993)).

      In addition, Stallworth contends that the evidence did not

support the jury’s finding that he was involved in distributing

at least 50 grams of crack cocaine.                       But again, this overlooks

the evidence.          Evans testified that he sold half-gram, gram, and

“eight-ball” (roughly 3.5 grams) quantities to Stallworth three

times a week whenever the two were both out of jail.                                    Vaughn

testified       that    he    witnessed        Stallworth     purchasing         a    quarter-

ounce      from    Mumphrey,        and    Lee       testified     that    he        witnessed

Stallworth buy from “an eight-ball to a quarter.”                                In view of

the testimony that Stallworth was buying and reselling eight-

balls     and     quarter-ounces          of    crack    cocaine     regularly         over   a

period     of     years,     the   jury    had       ample   evidence     from       which    to

conclude that the amount totaled at least 50 grams.

                                                 7
       While it is not clear whether Baumgardner is challenging

the sufficiency of evidence to support his distribution of 50

grams, the evidence was yet stronger than that for Stallworth.

Conspirator      Paul    Vaughn     testified    that    Baumgardner         bought   a

quarter-ounce three to four times per day during a period in

2007.    At that rate, 50 grams was achieved in only three days.

       Finally,       Baumgardner     contends     that       the   evidence        was

insufficient to show that he maintained a place for the purpose

of   distributing       controlled    substances.         Baumgardner        concedes

that crack cocaine was sold from his residence, but he contends

that the evidence does not establish that “the sole, primary

and/or exclusive ‘purpose’ for maintaining the residence . . .

was for the ‘purpose’ of distribution of illegal drugs.”                            The

case    law,    however,     unanimously     construes    §    856(a)(1)       as   not

requiring that a residence be maintained exclusively for the

distribution of drugs.          Obviously, if the defendant lives in the

residence, it also has the purpose of housing him.                       Rather, the

defendant      must   have   the    distribution   of     drugs     as   a   specific

purpose for the residence, which is more than a mere collateral

purpose.       See United States v. Soto-Silva, 129 F.3d 340, 346 n.4

(5th Cir. 1997); United States v. Verners, 53 F.3d 291, 295

(10th Cir. 1995); United States v. Roberts, 913 F.2d 211, 220

(5th Cir. 1990).



                                         8
        In this case, evidence shows that Baumgardner maintained

his   residence        for    the   specific     purpose     of    assisting    in   the

distribution of crack and cocaine.                    He maintained it as a place

for crack addicts to gather, purchase, and use crack cocaine.

Three co-conspirators testified that Baumgardner’s house was a

gathering place and that crack was readily available in the back

room of the house, where multiple dealers, including Baumgardner

himself, often sold crack cocaine.                      Moreover, when the police

executed a search warrant at the house during the early morning

of April 30, 2008, Baumgardner was in his bedroom and four to

five others were in the living room.                    They all appeared to be in

a drug-induced state, and several admitted to being “drug sick.”

Police observed syringes and hypodermic needles throughout the

house,     as   well    as     crack    pipes   and     other   drug    paraphernalia.

Digital scales were found under the mattress of the bed in which

Baumgardner was lying.

      In    sum,   we        conclude    that    there    was     ample   evidence    to

support the conviction of both defendants.


                                           III

      Stallworth        and     Baumgardner      next     contend      that   they   are

entitled to a new trial because co-conspirators Evans and Vaughn

later      recanted     testimony        they    gave     against      Stallworth    and

Baumgardner at trial.


                                            9
       A    motion    for    a     new    trial    based    on   the   recantation     of

testimony by a material government witness may be granted when:

       (a) The court is reasonably well-satisfied that the
       testimony given by a material witness is false;

       (b) That without it the jury might have reached a
       different conclusion; and

       (c) That the party seeking the new trial was taken by
       surprise when the false testimony was given and was
       unable to meet it or did not know of its falsity until
       after the trial.

United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976).

And “[t]he failure to meet any one of the Wallace test’s three

prongs is fatal.”           United States v. Lighty, 616 F.3d 321, 374-75

(4th Cir. 2010).

       In this case, following a hearing on the witnesses’ efforts

to recant, the court found that the defendants had failed to

meet the first prong.              It found the recantations “not credible,”

and stated that it did “not believe that either Vaughn or Evans

fabricated their prior trial testimony.”                         The court concluded

that while these witnesses’ testimony at trial was consistent,

“the       recantations          [were]     overwhelmingly         inconsistent       and

unreliable,”         and    that    the    claims    made    “fluctuated      from    one

[recantation] letter to the next and in their testimony.”                             The

court pointed out that other witnesses corroborated Vaughn’s and

Evans’ trial testimony.                  It found that since the recantation

letters      started       only    after    Vaughn    was    housed     in   jail    with

Baumgardner      and       were    written    in    different      handwriting,      they
                                             10
“were partly motivated by the pressure or intimidation likely

exerted    on   them    by    their   codefendants        in    prison,    and   partly

motivated by the misguided and self-created illusion . . . they

would    somehow      avoid    punishment        for    their    crimes.”    Finally,

another co-conspirator, Kerry Lee, testified that co-conspirator

Charles King “had forced him to write [a recanting letter] while

they were jailed together.”            The court concluded that Evans and

Vaughn were trying “to game the system.”

        We have reviewed the evidence carefully and find that the

district court’s findings are amply supported by the record and

that    the   court    did    not   abuse    its    discretion     in     denying    the

defendants’ motion for a new trial.


                                            IV

       Stallworth and Baumgardner contend that they are entitled

to a new trial also because the government failed to disclose

evidence to them that could have been used to impeach Vaughn, in

violation of Giglio v. United States, 405 U.S. 150 (1972).                          They

claim    that   the    government     failed       to   disclose    that    Detective

Majors had promised Vaughn that he would not be charged with

drug offenses in state court.                While the record is not totally

clear about whether the statement was made or who made it, the

district      court    nonetheless      concluded         that    the     failure     to




                                            11
disclose such statement was not material inasmuch as the result

of the trial would not have been any different.

       First of all, Vaughn was cross-examined on the fact that

his    substantial         assistance      could         be   recognized      in    his   own

federal      prosecution.           And        second,        Vaughn’s    testimony       was

corroborated by Evans, who also sold cocaine to Baumgardner and

Stallworth; by Calhoun and Mead who bought from Baumgardner; and

by    co-conspirator        Norton       who    bought        from    Stallworth.         The

district      court     concluded,         “under         these      circumstances,       the

presumed failure to disclose was not material,” and we agree.


                                               V

      Finally,        the      defendants            challenge        their        sentences.

Stallworth challenges the district court’s finding as to drug

weight,    and      both    defendants         challenge       the    life    sentence     as

disproportionate under the Eighth Amendment bar against cruel

and unusual punishment.

      With        respect    to    Stallworth’s           argument       about     the    drug

weight,      we     conclude      that    it        is   irrelevant.          Stallworth’s

Guideline range was not determined by drug weight but by the

statutory mandatory minimum sentence required by 21 U.S.C. §

841(b)(1)(A), prescribing a life sentence for a defendant who

has “two or more prior convictions for a felony drug offense.”

In this case there is no dispute that Stallworth had two prior


                                               12
felony drug convictions.         Accordingly, any recalculation of his

drug amount would be immaterial.

       Finally,    we   reject      the    argument     that   the      statutorily

mandated life sentence for a third felony conviction for drug

distribution is cruel and unusual, in violation of the Eighth

Amendment.      See United States v. D’Anjou, 16 F.3d 604, 613 (4th

Cir.   1994);     United   States    v.   Kratsas,     45   F.3d   63    (4th   Cir.

1995).

       Accordingly,     the   convictions      and    sentences    of   Stallworth

and Baumgardner are

                                                                          AFFIRMED.




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