                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4769


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL DOUGHTY WILLIAMS, a/k/a Wookie, a/k/a Wonkie,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cr-00162-BR-1)


Submitted:   June 17, 2011                 Decided:   July 18, 2011


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 In May 2009, a federal grand jury returned a five-

count       indictment         charging      Michael     Doughty       Williams         with

conspiracy to possess with intent to distribute fifty grams or

more        of    cocaine       base      (“crack”),      in     violation         of    21

U.S.C. §§ 841(a)(1), 846 (2006) (“Count One”); three counts of

distributing fifty grams or more of crack, in violation of 21

U.S.C. § 841(a)(1); and one count of distributing five grams or

more of crack, in violation of 21 U.S.C. § 841(a)(1).                             Williams

pleaded not guilty and was convicted, following a four-day jury

trial, of only Count One.

                 At   sentencing,      the   district    court     granted    Williams’

motion for a downward variance from the Guidelines range of life

imprisonment and imposed a 300-month sentence.                        Williams timely

noted this appeal, challenging his conviction and sentence.                              For

the reasons that follow, we reject Williams’ appellate arguments

and affirm.

                 Williams      first      challenges      the      district        court’s

decision         to   grant   the   Government’s        motion   to    disqualify        his

retained attorney, Deborrah L. Newton, arguing this violated his

Sixth Amendment right to counsel of his choice.                        The Government

moved       to    disqualify     Newton      on   the    grounds      that   her    prior

representation of a possible Government witness, Malcolm Dowdy,

who    is    Williams’        father,   created    a    potential      for    a   serious

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conflict    of        interest:        if        Dowdy    were     to     testify       against

Williams, Newton would be in the position of cross-examining her

former client.             According to the Government, Dowdy was willing

to cooperate in Williams’ prosecution in the hopes of receiving

a Fed. R. Crim. P. 35 reduction in his sentence.

            Plainly,         Williams       has      a    Sixth    Amendment        right     to

select    his     own      (retained)       counsel.            See     United     States      v.

Gonzalez-Lopez, 548 U.S. 140, 144 (2006).                         However, the right to

choose one’s counsel does not necessarily include the right to

choose counsel that may be operating under a possible conflict

of   interest.          Wheat   v.     United        States,     486     U.S.    153,    159-60

(1988); see also Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir.

1990)    (“[T]he       Sixth    Amendment         right    to     counsel       includes      the

right to effective assistance free of conflicts of interest[.]”

(citing    Wood       v.    Georgia,       450    U.S.    261,     271    (1981))).           The

presumption      in     favor   of     a    counsel       of    one’s    choosing       may    be

overcome by a showing of an actual conflict of interest or the

serious potential for a conflict of interest.                            United States v.

Basham, 561 F.3d 302, 323 (4th Cir. 2009), cert. denied, 130 S.

Ct. 3353 (2010).

            The district court has a duty to anticipate problems

with representation and to promptly act to remedy a potential

conflict.       Id.        When confronted with a potential conflict of

interest,       the     district     court        is     obligated       to     independently

                                                 3
determine         whether     the      continued         representation         by     counsel

impedes       the    integrity        of     the      proceedings       and    whether       the

attorney should thus be disqualified.                         Wheat, 486 U.S. at 161-

64.     For this purpose, the court “must have sufficiently broad

discretion to rule without fear that it is setting itself up for

reversal      on     appeal    either       on     right-to-counsel        grounds      if    it

disqualifies the defendant’s chosen lawyer, or on ineffective-

assistance           grounds          if         it     permits          conflict-infected

representation of the defendant.”                      United States v. Williams, 81

F.3d 1321, 1324 (4th Cir. 1996) (citing Wheat, 486 U.S. at 160).

               Williams first contends there was no potential for a

serious conflict of interest because Dowdy’s ability to earn a

Rule    35    reduction       in    his     sentence       was   tied    to    his    truthful

testimony,          which     would        not     infringe      Newton’s       ability        to

vigorously         cross-examine       Dowdy.           However,    controlling         Fourth

Circuit       law     clearly       supports          disqualification         under        these

circumstances.          See id. at 1324-25 (affirming disqualification

of    the    defendant’s       attorney          because    he   would    be    required      to

cross-examine a former client).

               Williams next contends that the Government lacked a

good faith basis for the motion for disqualification because it

did not know, at the time the motion was filed, whether Dowdy

would actually testify against Williams.                         However, the district

court       was    fully    apprised        of     Williams’      contention         that    the

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Government’s inclusion of Dowdy as a potential witness was not

in good faith, but ultimately concluded that this did not trump

the potential for a serious conflict of interest should Dowdy be

called as a Government witness.                    This ruling is in accord with

Circuit precedent.       See id.

            Building     on    this       contention,      Williams      asserts     that,

because the Government’s motion to disqualify Newton was made in

bad faith, the continuance period following the disqualification

should not have been excluded from the speedy trial calculation.

Williams acknowledges that, “[i]f in fact the district court

judge    was   correct        in    disqualifying          Ms.   Newton,     then     the

continuance was necessary and reasonable.”                       (Appellant’s Br. at

24).    For the reasons explained supra, the disqualification was

properly granted and thus we conclude that this claim fails.

            Williams      next          argues       the    jury’s        verdict     was

insufficient to trigger the enhanced penalty provision of 21

U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2011), because the

jury did not make an explicit finding as to the threshold drug

quantity attributable to him.                      Williams further contends the

district   court   failed          to     properly    instruct     the    jury   of   its

obligation, pursuant to United States v. Collins, 415 F.3d 304

(4th    Cir.   2005),    to        make    a   factual     finding       regarding    the

statutory threshold quantity of crack attributable to Williams.



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               Williams concedes that this claim is reviewed only for

plain error because he did not raise it below.                               See United

States    v.    Foster,   507    F.3d    233,      249   (4th       Cir.    2007).      To

establish plain error, Williams must demonstrate that (1) there

was error; (2) the error was plain; and (3) the error affected

his substantial rights.              United States v. Olano, 507 U.S. 725,

732 (1993).

               Williams’ reliance on Collins is simply misplaced.                        As

this court recognized in Collins, § 841(b) establishes specific

threshold       quantities      of      narcotics,          which     correspond        to

increasing       penalties      as     the       quantity     of     drugs         involved

increases.       Collins, 415 F.3d at 312.            Following Apprendi, 1 it is

the jury’s responsibility to determine the specific, statutory

threshold drug quantity attributable to any particular member of

a drug distribution conspiracy.                  Id. at 313-14.       It is then the

sentencing      court’s    obligation        to     find,    within        the    relevant

statutory       range,    the    individual          drug     quantity           reasonably

foreseeable to the individual member of the conspiracy.                                 See

United States v. Brooks, 524 F.3d 549, 560-562 (4th Cir. 2008).

               This is precisely what occurred here.                       Williams was

charged, specifically, with conspiracy to possess with intent to

distribute fifty grams or more of crack.                      Because Williams was

     1
         Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).



                                             6
the    sole   defendant     charged        in       Count    One,      there       were   no   co-

conspirators for the jury to consider.                            In charging the jury,

the district court identified that drug quantity was an element

of Count One.          Moreover, the jury’s verdict form specifically

referenced       Count    One    of    the      indictment,            which    included       the

statutory      quantity         of     fifty         grams        or     more       of    crack.

Accordingly, we discern no error in the jury verdict form or in

the court’s instructions regarding the threshold drug quantity

and    conclude     that    the       jury’s        guilty        verdict      on    Count     One

included the threshold drug quantity determination necessary to

trigger the enhanced penalty provision of § 841(b)(1)(B).

              Finally, Williams attacks his sentence, arguing there

was insufficient evidence to support the application of the two-

level enhancement for possession of a firearm in connection with

drug activities.         See U.S. Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(b)(1)       (2009).            Pursuant          to       this       guideline,        the

defendant’s      offense    level       is   increased            by   two     levels     if   the

defendant     possessed      a    firearm           during    a    drug      offense.          USSG

§ 2D1.1(b)(1).         The enhancement is proper when “the weapon was

possessed in connection with drug activity that was part of the

same    course    of     conduct      or   common       scheme         as    the    offense     of

conviction.”        United States v. Manigan, 592 F.3d 621, 628-29

(4th Cir. 2010) (internal quotation marks omitted).



                                                7
                The Government must prove the facts needed to support

a sentencing enhancement by a preponderance of the evidence.

United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).                                  In

determining           whether         a    sentencing       enhancement      applies,      the

sentencing           court      may       consider       hearsay,   provided        that   the

information bears “sufficient indicia of reliability to support

its accuracy.”              United States v. Wilkinson, 590 F.3d 259, 269

(4th Cir. 2010).                Whether the district court properly applied

the enhancement under USSG § 2D1.1(b)(1) is reviewed for clear

error.       Manigan, 592 F.3d at 626.

                At     Williams’           sentencing       hearing,       several     police

officers testified as to the disputed sentencing issues. 2                                  Two

officers testified that, in the course of their investigations,

three      cooperating          witnesses      reported      having      observed    Williams

with       or   near       firearms        during       various   drug    activities       that

occurred within the time frame charged in Count One.                                 Williams

asserts that this hearsay evidence was insufficient to satisfy

the Government’s burden of proof.                          We disagree.       It is well-

established that “there is no bar to the use of hearsay at

sentencing       .     .    .   [and      a]   trial     court    may    properly    consider


       2
        Although Williams also challenged the drug quantity
attributed to him and the three-level role enhancement for being
a manager or supervisor, he does not raise either of these
issues on appeal.



                                                    8
uncorroborated hearsay evidence that the defendant has had an

opportunity to rebut or explain.”               United States v. Alvarado

Perez, 609 F.3d 609, 618 n.4 (4th Cir. 2010) (internal quotation

marks    omitted).        Accordingly,     we   hold     the      district    court

properly applied the two-level enhancement.

            For   these    reasons,   we    affirm     the     district      court’s

judgment.      We dispense with oral argument because the facts and

legal    contentions    are   adequately     presented       in    the    materials

before   the    court   and   argument     would   not   aid      the    decisional

process.

                                                                           AFFIRMED




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