                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5044


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ROMAINE ABDUL SHORT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Rebecca Beach Smith,
District Judge. (4:07-cr-00123-RBS-3)


Argued:   May 14, 2010                     Decided:   July 2, 2010


Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Arthur L. ALARCÓN, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.


Affirmed by unpublished opinion.       Judge Duncan wrote the
opinion, in which Senior Judge Hamilton and Senior Judge Alarcón
joined.


ARGUED: James Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY,
Virginia Beach, Virginia, for Appellant. Howard Jacob Zlotnick,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Dana J. Boente, United States Attorney,
Alexandria, Virginia, Richard Cooke, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia; Caitlin Parker, Third Year Law Student, WILLIAM & MARY
SCHOOL OF LAW, Williamsburg, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                               2
DUNCAN, Circuit Judge:

     This    appeal     arises    from   a    conviction    and    sentence    for

conspiracy to possess with intent to distribute marijuana and

cocaine base, in violation of 21 U.S.C. § 846; use and carry of

a firearm in relation to drug trafficking, in violation of 18

U.S.C.   §    924(c);     conspiracy     to   obstruct,    delay    and    affect

commerce     by   robbery,   in     violation    of   18   U.S.C.   §     1951(a);

possession with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2; robbery

affecting commerce, in violation of 18 U.S.C. § 1951(a); and

being a felon in possession of a firearm, in violation of 18

U.S.C.   §   922(g)(1).       The    appellant    challenges       the    district

court’s denial of his motion to dismiss the indictment based on

immunity and his motion to suppress evidence seized during a

house search.      He also challenges the court’s decision to impose

a mandatory minimum of life imprisonment pursuant to 21 U.S.C.

§ 841(b)(1)(A).       For the reasons that follow, we affirm.



                                         I.

                                         A.

     Starting in the 1990s, Romaine Abdul Short, together with

others, belonged to a group known as “The Creek Boys.”                        This

group,   among    other    things,     manufactured    powder      into   cocaine


                                         3
base,      sold    crack    cocaine,     and      robbed    other      drug    dealers    of

controlled substances.             In December 2004, Detective Eric Kempf

of   the    Federal      Violent     Crimes       Task    Force    learned     of    Short’s

activities, and asked Short if he would be willing to provide

him with some information.                Short, who was then in custody on

pending state drug violations, agreed, and thereafter, Detective

Kempf and Short met several times from December 17, 2004 through

March      2,    2005.      During    those       meetings,       Short     described    his

involvement in crack cocaine and marijuana dealing, and gave

Detective Kempf several names.                    Short also testified before a

grand jury on drug related matters involving James Frink, Ricky

Frink, and Germell Allmond.                 Afterwards, Detective Kempf sent a

letter      to    the    Newport     News     Commonwealth         Attorney’s        Office,

detailing Short’s cooperation.                 As a result of this letter, the

state charges against Short were reduced.

        Short’s criminal activity continued after 2005.                             On April

15, 2006, he and Sam Wallace, another Creek Boy, arranged to

meet    a   drug    dealer       named   Joseph      Ocasio.          Wallace    had    told

Ocasio’s contact, Sammy Zaharopoulos, that they wanted to buy

marijuana,        but    they     actually        planned    to       rob   Ocasio.       In

preparation,        Short    sought      assistance        from    Demario      Boyd,    who

Short knew always carried a gun, would “straight take the weed

from    [Ocasio],”         and   would    only      ask    for    a    small    amount    of


                                              4
marijuana in return.           J.A. 573.       That evening, Wallace picked up

Short and Boyd in his car and headed to the Bayberry Shopping

Center to meet Ocasio.           While the marijuana purchase was taking

place, Boyd brandished his gun and shot Ocasio in the back of

the head, killing him.            Wallace and Boyd quickly fled on foot,

while Short, carrying Ocasio’s marijuana sample, drove away in

Wallace’s car.

       Responding to the murder, Detective Robert Vasquez located

and    apprehended       Wallace.       Upon      questioning      him,       Detective

Vasquez      learned    that    Short   had     been    involved   in     the    Ocasio

murder.        The     next    day,   Detective        Vasquez   and    his     partner

Detective Richard Espinoza visited Short’s residence with ten to

twelve other police officers. 1            Detective Espinoza knocked on the

door, announced himself, and then asked everyone inside to come

out.       Short came out with his wife Shenika Short (“Ms. Short”)

and two children.         He was placed in handcuffs and then taken to

the police station for questioning.               At the same time, Detective

Steven Smithley obtained consent to search the house from Ms.

Short.      In the house, police officers found, among other things,



       1
       Detective Espinoza explained that they took such a large
contingent because Boyd, potentially armed and dangerous,
remained at large and could have been with Short, and because
they had “not recover[ed] the murder weapon from the scene.”
J.A. 56.

                                           5
marijuana, a digital scale, and a sealed plastic bag containing

$1,000.



                                        B.

        Based    on   the   Ocasio   murder,   the     subsequent   search,   and

evidence that from 1996 through 2007, Short purchased and sold

firearms, marijuana, crack cocaine, and powder cocaine; robbed

several drug dealers; and was armed with a weapon while drug

trafficking, a federal grand jury in the Eastern District of

Virginia indicted Short on September 12, 2007, for conspiracy to

possess with intent to distribute marijuana and cocaine base in

violation of 21 U.S.C. § 846; conspiracy to obstruct, delay, and

affect commerce by robbery in violation of 18 U.S.C. § 1951(a);

possession with intent to distribute marijuana in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2; robbery

affecting       commerce    in   violation   of   18    U.S.C.   § 1951(a);   and

possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A).                  The government

later    filed    a   superseding     indictment     that   added   charges   for

possession with intent to distribute cocaine base in violation

of 21 U.S.C. § 841(a)(1), (b)(1)A)(iii) and 18 U.S.C. § 2, and

possession of a firearm by a felon in violation of 18 U.S.C.

§ 922(g)(1).


                                         6
      In   January    2008,   Short       moved    to     suppress    the    evidence

seized during the warrantless search of his home on the ground

that police conducted the search without valid consent.                        During

a   hearing   on    the   motion,   Detective       Smithley       testified      that,

following     Short’s     departure,          Detective     Smithley       approached

Ms. Short,     “explained     to    her    what    was     going     on,    and   then

ultimately just asked for a consent search for the residence.”

J.A. 113.     He further testified that, after Ms. Short agreed to

cooperate, he obtained a consent form, “explained [it] to her,”

and watched her sign it.             J.A. 113.          According to Detective

Smithley, police officers began the search only after obtaining

consent.      Ms.    Short   also   testified      and     provided    a    different

account.      Although she admitted giving consent, Ms. Short said

that police officers entered her home before she had consented,

and that she finally gave consent only because an officer said

that she and her children would “have to stand outside until

they got a search warrant.”           J.A. 180.         Ms. Short explained, “I

didn’t want me and my kids to stand outside.                       It was kind of

cold, so I didn’t think I had nothing to hide in my house, so I

signed it.”     J.A. 182.     Ultimately, the district court found her

testimony not credible and, concluding that “Ms. Short did give

consent,” denied Short’s motion to suppress the evidence seized

from his house.      J.A. 274.


                                          7
       Several     months     later,          Short        moved     to       dismiss        the

superseding      indictment        on   the       ground     that       he    had    received

immunity by cooperating with law enforcement regarding his March

2005 grand jury testimony.               During a hearing on the motion,

Detective Kempf explained that, although he gave Short a limited

promise in exchange for his cooperation, there was an important

caveat:     “[S]ince Mr. Short was in custody, . . . I advised him

that    any   cooperation          he   gave        would     be        related       to    the

Commonwealth Attorney since he had pending charges.                                 By law no

promises could be made by me.                     I don’t have the authority to

make any promises.”         J.A. 312.

       Short also testified and provided a different account.                                He

said that Detective Kempf told him that “the only way that [he]

w[ould] be safe from ever getting prosecuted for any [of these

crimes] was for [him] to tell [Detective Kempf] everything from

the first time [he] ever picked up a blunt weed.”                                   J.A. 343.

Accordingly,       Short    testified        that     he    had     provided        Detective

Kempf with his entire criminal background, believing that he

would therefore be “protect[ed].”                  J.A. 350.

       During the hearing, Short also submitted his grand jury

testimony     as    proof     of    immunity.              During       the     grand       jury

proceeding,      Short     admitted     to    “hustling”          and    then       asked    the

prosecutor whether he would get in trouble for this admission.


                                              8
J.A. 1477.     The prosecutor responded, “No, you are fine.”                     Id.

After confirming that Short was telling the truth and did not

shoot anyone, the prosecutor said, “You’re fine.                       Go ahead.”

Id.       According    to     Short,     the    prosecutor     was     “verifying”

Detective Kempf’s promise of immunity in exchange for Short’s

grand jury testimony.         J.A. 351-52.

      Ultimately,     the     district   court    denied     Short’s    motion    to

dismiss the superseding indictment.                It found that, at most,

“[Short] had an informal use immunity agreement related to his

grand jury testimony” and also that “none of the charges in the

superseding indictment are related to [Short’s] brief grand jury

testimony at issue here.”         J.A. 1202-03.

      The case then proceeded to trial and Short was found guilty

on all but two counts. 2             After calculating Short’s applicable

guideline    range    under    the    federal    sentencing    guidelines,       the

district court imposed the mandatory minimum penalty of life

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) based upon two

prior felony drug convictions.           This appeal followed.




      2
       Short was not found guilty of possessing a firearm in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A), and knowingly and intentionally possessing with
(Continued)
                                         9
                                     II.

      On   appeal,   Short    challenges    the    district     court’s      orders

denying his motion to dismiss the superseding indictment and his

motion to suppress.      He also challenges the court’s application

of 21 U.S.C. § 841(b)(1)(A).        We consider each matter in turn.



                                     A.

      We consider first the district court’s denial of Short’s

motion to dismiss the indictment based on a grant of immunity.

We review the district court’s factual determinations concerning

the existence and scope of an alleged immunity agreement for

clear error, see United States v. Martin, 25 F.3d 211, 217 (4th

Cir. 1994) (applying standard of review to plea agreement), and

its application of the law de novo, see United States v. Smith,

976 F.2d 861, 863 (4th Cir. 1992).

      In   this   context,    immunity     may    be   either      “transactional

immunity” or “use and derivative use immunity.”                      Kastigar v.

United States, 406 U.S. 441, 443 (1972).               Transactional immunity

“accords full immunity from prosecution for the offense to which

the . . . testimony relates.”         Id. at 453.         Use and derivative

use   immunity    prohibits   the   use    of    testimony    or    any   evidence



intent to distribute cocaine base in violation                     of   21   U.S.C.
§ 841(a)(1), (b)(1)A)(iii) and 18 U.S.C. § 2.

                                     10
derived from that testimony against the witness in a criminal

prosecution.       See id. at 452-53.             Under this latter type of

immunity, the witness still may be prosecuted for crimes about

which he testifies if the government proves that it has other

evidence that is derived from a source wholly independent of the

testimony.       United States v. Jarvis, 7 F.3d 404, 414 (4th Cir.

1993) (finding that “the government [is] free to use any other

evidence to prosecute”).

      While an immunity agreement is typically “made when the

parties verbally express their mutual assent to its essential

terms,      it   may   also   be    implied      when   the   parties’       conduct

manifests their agreement.”              United States v. McHan, 101 F.3d

1027, 1034 (4th Cir. 1996).              Under the doctrine of “equitable

immunity,” immunity exists where: “(1) an agreement was made;

(2)   the    defendant    has      performed     on   his   side;    and   (3)   the

subsequent prosecution is directly related to offenses in which

the defendant, pursuant to the agreement, either assisted with

the   investigation      or     testified      for    the   government.”         Id.

Ultimately, however, the defendant bears the burden of proving

the existence of an equitable immunity agreement.                   Id.

      Applying this standard, the district court determined that

Short failed to meet his burden of proving the existence of

transactional      immunity.        At   most,    the   district     court    noted,


                                         11
“based    on     a    review    of    [Short’s]       grand      jury    testimony        . . .

[Short] had an informal use immunity agreement related to his

grand    jury       testimony.”        J.A.     1202.        However,        because      Short

“testified at the grand jury regarding matters and individuals

which form no part of the current charges against [Short] in the

superseding          indictment,”      J.A.    1202,      the    district       court     found

that “even if [Short] did have [use] immunity as to his grand

jury    testimony,       there       has   clearly      been     no     violation      by    the

United States,” J.A. 1203.                 Short now challenges these findings.

As proof that he received immunity, Short cites the statements

made    by     the     prosecutor      before       the    grand      jury    as    well      as

Detective Kempf’s statement that if Short told the truth and had

not shot anyone, he would “be alright and not be prosecuted.”

Appellant’s Br. at 19.

       Nothing in the record persuades us that the district court

clearly erred in finding that the government did not agree to

give Short immunity based on his interactions with Detective

Kempf.        Short testified that Detective Kempf told him that “the

only way that [he would] be safe from ever getting prosecuted

for     any    of     [his     previous       crimes]     was     for     [him]     to      tell

[Detective       Kempf]      everything        from    the      first    time      [he]     ever

picked up a blunt weed.”                   J.A. 343.            By contrast, Detective

Kempf explained that prior to their interview, he “advised him


                                               12
that any cooperation . . . would be related to the Commonwealth

Attorney since he had pending charges,” but that “[b]y law no

promises could be made by [him]” because he did not have the

authority.          J.A.    312.     Ultimately,      the       district   court    found

Detective Kempf credible and Short unworthy of belief.                             We are

given    no     reason       to     challenge       that        credibility     finding,

particularly since during his testimony, Short admitted to lying

to a probation officer about his drug use “to help [him]self.”

J.A. 359.      See United States v. Thompson, 554 F.3d 450, 452 (4th

Cir. 2009) (“[W]hen a district court’s factual finding is based

upon    assessments         of     witness    credibility,         such    finding     is

deserving      of     the     highest    degree       of    appellate      deference.”

(internal quotations omitted)).                   The record indicates, at most,

that Detective Kempf promised Short that he would write a letter

on his behalf to the Commonwealth Attorney.                           Detective Kempf

kept his promise, and as a result of this letter, Short was able

to plead guilty to a reduced charge on a pending state matter.

       The    only    other      evidence    offered       in    support   of    Short’s

motion was the grand jury testimony, but Short’s colloquy with

the prosecutor does not evidence “a meeting of the minds that

the government would refrain from further prosecuting him in

exchange for his cooperation,” and thus, Short cannot establish

transactional immunity.              McHan, 101 F.3d at 1034.                   All this


                                             13
colloquy shows is Short asking the prosecutor whether he would

get in trouble for “hustling,” and the prosecutor reassuring him

that he would be fine.         J.A. 1477.            Even assuming that this

colloquy    can   be   construed   as    a    grant   of    use   immunity,   the

district court found, as a matter of fact, that the charges

contained    in    the    superseding         indictment      were    based    on

independent sources of information, and not based on any matters

disclosed   by    Short   during   his       grand   jury   testimony.    Short

offers no evidence to rebut this finding, 3 and thus, we conclude


    3
       At oral argument, Short argued that if we find that he was
entitled to use immunity, we must find that the district court
erred in failing to conduct a Kastigar hearing.     United States
v. Harris, 973 F.2d 333, 336 (4th Cir. 1992) (noting that in a
Kastigar hearing, the government must “demonstrate that all its
evidence came from sources independent of the compelled
testimony”).    We disagree.     “Whether the oral use-immunity
agreement at issue in this case is subject to the full Kastigar
protections is doubtful because [Short] voluntarily cooperated
with the government.” McHan, 101 F.3d at 1036; see also United
States v. Roberson, 872 F.2d 597, 611-12 (5th Cir.) (holding
that where cooperation was not compelled but was voluntarily
provided pursuant to a state immunity agreement, that agreement
cannot bind federal prosecutors), cert. denied, 493 U.S. 861
(1989); United States v. Eliason, 3 F.3d 1149, 1152-53 (7th Cir.
1993) (same); United States v. Camp, 72 F.3d 759, 761 (9th Cir.
1995) (same), cert. denied, 517 U.S. 1162 (1996).     Further, to
the extent that a full Kastigar hearing is ever appropriate in
non-compulsion cases, it was not required in this case because,
at most, the government provided Short with use immunity, not
derivative use immunity, and there is no evidence in the record
showing that the government directly used the immunized
testimony.   See United States v. Smith, 452 F.3d 323, 337 (4th
Cir. 2006) (finding no Kastigar hearing is required where the
agreement conferred use immunity only, and the government did
not use the immunized testimony).

                                        14
that the district court did not clearly err in finding that if

Short was granted use immunity, the government did not violate

that agreement.     See United States v. Jones, 542 F.2d 186, 199

(4th Cir. 1976) (findings of fact related to independence of

evidence from immunized testimony will be overturned only if

clearly erroneous), cert. denied, 426 U.S. 922 (1976).

     Because   Short     never   had   transactional     immunity   and   the

government   did   not   violate   any      purported   agreement   for   use

immunity, we find no error in the district court’s denial of

Short’s motion to dismiss.



                                       B.

     We next consider the district court’s denial of the motion

to suppress.   In ruling on a motion to suppress, we review the

district court’s legal conclusions de novo and its underlying

factual findings for clear error.           United States v. Buckner, 473

F.3d 551, 553 (4th Cir. 2007).

     Short argues that the district court erred in finding that

his wife consented to the search of his home.            He maintains that

his wife’s consent was an involuntary acquiescence to a claim of

lawful authority, given only after the official conducting the

search asserted he would obtain a warrant, if necessary.              Thus,




                                       15
he    contends     the    district    court      should    have    suppressed    the

evidence obtained through the search of his home.

      In determining whether consent to search was freely and

voluntarily given, we examine the totality of the circumstances

surrounding the consent.             United States v. Lattimore, 87 F.3d

647, 650 (4th Cir. 1996) (en banc).                In viewing the totality of

the     circumstances,       it      is   appropriate        to    consider      “the

characteristics of the [person giving consent] (such as age,

maturity, education, intelligence, and experience) as well as

the conditions under which the consent to search was given (such

as the officer’s conduct; the number of officers present; and

the   duration,      location,     and    time    of   the    encounter).”       Id.

Whether      the   person   giving    consent     knew    that    she   possessed   a

right   to    refuse     consent   also   is     relevant    in   determining    the

voluntariness       of    consent,    although      the     government    need   not

demonstrate that the person giving consent knew of her right to

refuse consent to prove that the consent was voluntary.                    Id.

      The district court determined that Ms. Short voluntarily

consented to the search.           The district court found:

      Ms. Short did give consent.  She said it was okay to
      search.    She voluntarily and knowingly signed the
      consent to search form.

            The witness who testified -- Detective Smithley,
      I believe is his name -- was a very credible witness.
      He   didn’t   appear at   all  rude  or   forceful  or
      intimidating, and I specifically asked Ms. Short if

                                          16
      the officer was courteous to her, and she said, oh,
      yes, he was courteous.    There was nothing that was
      overpowering about this situation, and I would find as
      a fact that Ms. Short did okay the search, that she
      was an appropriate individual to consent to the
      search, she lived there, she was his wife, and that
      the search was appropriate without a warrant as a
      consent search.

J.A. 274-75.

      Based    on     our    review     of    the   totality     of    the   surrounding

circumstances, we cannot say that the factual finding of the

district      court    that       Ms.   Short’s      consent     was     voluntary     was

clearly erroneous.           On the date of the search, Ms. Short was 26

years old, the mother of two children, and held employment with

North End Cab Company.             Testimony also established that she had

dealt with police officers before and been arrested on a number

of   occasions.         Further,        Ms.    Short   admitted        to    signing   the

consent form and not revoking that consent at any time during

the search.         It is true that Ms. Short testified, on several

occasions,      that        she   agreed      to    sign   the        document   because

otherwise, she “and [her] kids [would have] to stand outside” in

the cold while the police obtained a warrant. 4                         J.A. 182.      She

also admitted, however, that she signed the consent form because




      4
        Strangely enough, after giving consent, Ms. Short
testified that she and her step-daughter stayed outside on the
porch while the officers searched the home. When asked why she
stayed outside when her stated reason for signing the form was
(Continued)
                                              17
she “didn’t think at the time . . . there was anything to get in

[her] house.”      J.A. 184-85.          Moreover, she explained that she

found the police officer that asked for the consent “courteous.”

J.A. 191.    Based on this record, the conclusion that Ms. Short’s

oral consent was given voluntarily is amply supported; indeed,

we may safely say that no other opinion is supportable.

       Nevertheless,     Short    argues       that     the    police       officer’s

statement that he could apply for a warrant if Ms. Short denied

consent invalidated the consent.              We disagree.         “The fact that a

search warrant was mentioned does not necessarily constitute a

coercive factor negating consent.”              United States v. Hummer, 916

F.2d 186, 190 (4th Cir. 1990) (internal quotations and citation

omitted),    abrogated    on     other     grounds      by    United     States   v.

Hairston, 96 F.3d 102, 106 (4th Cir. 1996).                     On the contrary,

this   is   but   one   factor    to    consider      in     determining     whether

voluntary consent was given, and can be negated if the person

giving consent “is advised several times orally and in writing

of [her] right to refuse the search.”                      Id.; see also United

States v. Dennis, 625 F.2d 782, 793 (8th Cir. 1980) (finding

voluntary   consent,     although      consent    was      given    after    officers

informed defendant that they would seek a warrant if consent was



so she would not be forced to stand outside, she answered, “I
don’t know. But I just did.” J.A. 193.

                                         18
not   given);   United   States   v.    Drennen,    No.   96-4301,   1997   WL

543379, at *4 (4th Cir. Sept. 5, 1997) (same).              Here, Ms. Short

was given a form that delineated her rights, and she was told

orally by a police officer that she didn’t need to consent.                 In

light of these circumstances, we find that the district court

did not clearly err in finding that Ms. Smith gave informed,

voluntary consent to search her home.              This is particularly so

in light of the rule that when the lower court bases its ruling

on oral testimony heard at a suppression hearing, such as is the

case here, the ruling may not be disturbed “unless it can be

said that the view of the evidence taken by the district court

is implausible in light of the entire record.” 5              Lattimore, 87

F.3d at 651.


      5
       Short also argues that the evidence should have been
suppressed because the search resulted from his unlawful arrest.
See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (finding
that generally “evidence which derives . . . immediately from an
unlawful entry and an unauthorized arrest . . . is . . . the
‘fruit’ of official illegality,” and should be suppressed). We
disagree.   Not all evidence “is [the] ‘fruit of the poisonous
tree’ simply because it would not have come to light but for the
illegal actions of the police.”    Id. at 487-88.   “Rather, the
more apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.’”       Id. at 488 (quoting
Maguire, Evidence of Guilt, 221 (1959)).        Here, Short has
proposed no explanation, and we see none, for how the search
resulted from the purported unlawful arrest.      Thus, we find
Short’s argument without merit.

                                       19
                                             C.

       Finally,      we    consider    the    district      court’s   determination

that Short was subject to a mandatory minimum sentence of life

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).                         “We review

de novo the district court’s interpretation of the statute and

conclusion     that        [Short’s]     prior     convictions      were     predicate

offenses under the statute.”             United States v. Hawkins, 548 F.3d

1143, 1149 (8th Cir. 2008).

       Section 841(b)(1)(A) provides that if any person commits a

federal drug offense involving 50 grams or more of cocaine base

“after two or more prior convictions for a felony drug offense

have become final, such person shall be sentenced to a mandatory

term    of    life        imprisonment       without      release.”        21   U.S.C.

§ 841(b)(1)(A).           Because the jury convicted Short of conspiracy

to possess with intent to distribute cocaine base in excess of

50 grams, and because Short was convicted in state court in

March 2004 and December 2005 of two felony drug offenses, the

district court found that an enhancement under § 841(b)(1)(A)

was appropriate.

       Short argues that the district court erroneously relied on

these two state convictions to enhance his sentence because the

government had failed to establish that they were not part of

the    same   conspiracy       charged       in   Count    1   of   the    superseding


                                             20
indictment.       He reasons that these two convictions cannot be

“prior felony drug offense[s]” for purposes of § 841(b)(1)(A)

because they occurred while the charged conspiracy was taking

place.     We disagree.

      We have squarely held that, for purposes of § 841(b)(1)(A),

“[w]hen a defendant is convicted of a drug conspiracy under 21

U.S.C. § 846, prior felony drug convictions that fall within the

conspiracy       period   may    be     used   to   enhance       the    defendant’s

sentence     if     the   conspiracy         continued     after        his     earlier

convictions were final.”            United States v. Smith, 451 F.3d 209,

225-26 (4th Cir. 2006); see also United States v. Moore, 305 F.

App’x     130,   134   (4th   Cir.    2008)    (finding    that    2000       and    2003

convictions could be considered prior convictions for sentencing

enhancement       purposes      where    conspiracy       began     in        1987    and

continued through 2005).            Here, the charged conspiracy continued

through 2007, and thus, we find no error in the district court’s

use   of   Short’s     2004   and     2005   convictions    for     § 841(b)(1)(A)

enhancement purposes. 6




      6
       Short also argues that the court erroneously applied the
base offense level from section 2A1.1 in the U.S. Sentencing
Guidelines.   Because he faced a statutory mandatory minimum
sentence of life imprisonment, however, his guideline sentence
was necessarily life imprisonment pursuant to section 5G1.1.
See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable guideline
(Continued)
                                          21
                             III.

    For the foregoing reasons, we

                                                      AFFIRM.




range, the statutorily required minimum sentence shall be the
guideline sentence.”). The issue is thus moot.

                              22
