                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-4461
ALPHELIOUS ANTOINE ROOKS,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-4465
ARTHUR LEE WILLIAMS,
             Defendant-Appellant.
                                       
           Appeals from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CR-99-312)

                        Argued: June 7, 2001

                      Decided: August 16, 2001

      Before WILKINSON, Chief Judge, and MICHAEL and
                   KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.
2                      UNITED STATES v. ROOKS
                             COUNSEL

ARGUED: Barbara Lynn Hartung, Richmond, Virginia, for Appel-
lant Rooks; Robert James Wagner, Richmond, Virginia, for Appellant
Williams. James Brien Comey, Jr., UNITED STATES ATTOR-
NEY’S OFFICE, Richmond, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, David J. Novak, Assistant
United States Attorney, Richmond, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

   Alphelious Rooks and Arthur Williams appeal their convictions
and sentences for several federal offenses relating to drug trafficking
and firearms, including aiding and abetting in the use of a firearm to
commit murder during drug trafficking. The defendants claim error as
follows: (1) insufficiency of evidence, (2) admission of irrelevant and
hearsay evidence, (3) prosecutorial misconduct, (4) failure of the dis-
trict court to use a special verdict, and (5) application of a sentence
enhancement in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000). For the reasons that follow, we affirm.

                                  I.

   On February 25, 1997, Reynold Forde was selling crack cocaine
out of a motel room at the Diamond Motor Lodge in Richmond, Vir-
ginia. Forde was selling the crack in large quantities, typically over
an ounce per sale. Around 3:00 a.m., there was a knock at the door.
Forde opened the door slightly, and two men burst into the room. One
of them shot and killed Forde. The two men left the room immedi-
ately, and ran with a third man to a getaway car parked in the motel’s
lot. A fourth man was driving the getaway car, which then sped away.
                        UNITED STATES v. ROOKS                         3
   Rooks and Williams were charged with various drug and firearm
offenses surrounding Forde’s murder. At trial Alex Jackson testified
that he was the driver of the getaway car. Jackson said that earlier in
the day he was with Rooks, Williams, and Jermonza Spencer in Wil-
liams’s apartment. The four discussed robbing Forde for drugs and
money and then left together for the motel. When they arrived at the
motel, Jackson remained in the car while Rooks, Williams, and Spen-
cer headed to Forde’s room. A few minutes later Jackson saw them
run from the direction of the room and get into his car. As Jackson
was driving away, the three told him that Spencer had shot Forde.
Because of the shooting, they were unable to recover any drugs or
money. Jackson drove them back to Williams’s apartment, where
Spencer gave Williams the gun that was used to kill Forde. Williams
agreed to dispose of the gun.

   Other witnesses confirmed Jackson’s version of events. Brad
Brooks, a major drug dealer, was in Williams’s apartment the day of
the shooting. He confirmed that Rooks, Williams, Spencer, and Jack-
son left the apartment after they discussed their plans to rob Forde.
He also confirmed that the four discussed the murder when they
returned to the apartment. Connie Houchins, who was also in Wil-
liams’s apartment that day, testified that the four discussed the murder
when they returned. Two other witnesses also testified that Spencer
described the murder the following day. Finally, an eyewitness testi-
fied that she saw Rooks run from the motel room immediately after
the shooting. After a two-day trial the jury convicted Rooks and Wil-
liams of all counts, and the court sentenced both to life imprisonment.

                                   II.

   Rooks and Williams challenge the sufficiency of the evidence on
their convictions for conspiracy to distribute crack cocaine in viola-
tion of 21 U.S.C. § 846, conspiracy to use or carry a firearm during
a drug trafficking offense in violation of 18 U.S.C. § 924(o), and aid-
ing and abetting in the use of a firearm to commit murder during drug
trafficking in violation of 18 U.S.C. § 924(j). When we assess the suf-
ficiency of the evidence in a criminal case on direct review, "[t]he
verdict of [the] jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support it."
Glasser v. United States, 315 U.S. 60, 80 (1942).
4                      UNITED STATES v. ROOKS
   The defendants first claim that there is insufficient evidence that
they were at the motel at the time of Forde’s murder. At trial the
defendants conceded that Alex Jackson and Spencer were two of the
four men who participated in the murder. However, they argued that
Brad Brooks, and his fellow gang member, Raymond Jackson, were
the other two men who went to the motel. Rooks in particular argued
that the eyewitness testimony proved that Raymond Jackson, and not
he, was at the motel. The government claimed that Rooks entered the
motel room with Spencer. Tracy Payne, who was with Forde in the
room when he was shot, described the men as 5’11" and 5’8". Rooks
is only 5’3", while Raymond Jackson is 5’9". Further, Shawn Parris,
who saw the men run from the motel room, described them as being
6’, 5’11", and 5’9". Rooks’s attack on the eyewitness testimony about
the heights of the assailants does not carry the day, however. There
is a substantial amount of other evidence establishing that Rooks and
Williams were at the motel. Alex Jackson, the driver of the getaway
car, placed Rooks and Williams at the motel. In addition, Alex Jack-
son and Brooks both testified that Rooks and Williams planned the
crime, and then discussed it when they came back to the apartment.
Houchins also testified that Rooks and Williams discussed the crime
when they returned to the apartment. An eyewitness identified Rooks
as one of the men who ran from the motel room. The evidence was
therefore sufficient to establish that Rooks and Williams were at the
motel.

   The defendants next argue that the evidence is insufficient to show
that they intended to distribute any drugs. The defendants were con-
victed under statutes that require proof of intent to distribute drugs.
There is sufficient evidence that the defendants intended to rob Forde
of drugs with the goal of distributing them. Alex Jackson and Brooks
both testified that the defendants discussed robbing Forde. The defen-
dants knew that Forde sold drugs in large quantities. Therefore, it is
a fair inference that the defendants intended to recover a large quan-
tity of drugs from Forde. Because the defendants intended to recover
a large quantity of drugs, a jury could infer that they intended to dis-
tribute the drugs. See, e.g., United States v. Roberts, 881 F.2d 95, 99
(4th Cir. 1989) (concluding that a defendant’s intent to distribute may
be inferred from quantities of drugs too large for personal consump-
tion).
                       UNITED STATES v. ROOKS                         5
   Williams challenges the sufficiency of the evidence for his convic-
tion for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Alex Jackson and Brooks both testified that Spen-
cer gave Williams the gun that was used to shoot Forde. Williams
concedes that he is a convicted felon. Accordingly, there is sufficient
evidence to support his conviction on the felon in possession count.

                                  III.

   The defendants challenge the admission of several items of evi-
dence. As a general rule, we review the admissibility of evidence for
an abuse of discretion. See, e.g., United States v. Bostian, 59 F.3d
474, 480 (4th Cir. 1995). At trial the government and Rooks stipu-
lated that Rooks had two prior drug trafficking convictions. Rooks
contends that the stipulation was improperly submitted to the jury
because he, in fact, had only two prior convictions for simple posses-
sion of drugs. Because Rooks did not object at trial, we review for
plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
Under plain error review a defendant must show that the error
affected his substantial rights. See id. In other words, the defendant
must show that the error caused him prejudice. See, e.g., United States
v. Strickland, 245 F.3d 368, 379 (4th Cir. 2001). Rooks cannot show
that the erroneous stipulation caused him any prejudice. Although
Rooks vigorously contested the claim that he participated in the mur-
der, his lawyer twice told the jury that Rooks was a drug dealer.
Accordingly, the jury knew, apart from the stipulation, that Rooks had
trafficked in drugs. The erroneous stipulation therefore did not cause
him any prejudice.*

  Rooks also challenges the admission of evidence of his prior drug
dealings. Because Rooks objected to the introduction of this evidence,
we review for an abuse of discretion. See, e.g., Bostian, 59 F.3d at
480. Rooks claims that the evidence merely went to establish that he
had a propensity for drug trafficking. The government, on the other
hand, claims that the evidence was properly admitted under Rule

   *Rooks notes that the prosecutor misstated to the jury that Rooks had
three prior convictions, when in fact he had stipulated to only two.
Again, because the jury knew that Rooks was a drug dealer, he was not
prejudiced by the prosecutor’s misstatement.
6                       UNITED STATES v. ROOKS
404(b) because it goes to the issue of Rooks’s intent. See Fed. R.
Evid. 404(b) (providing that evidence of "other crimes" is admissible
as proof of intent). The government had to show that Rooks intended
to rob Forde of drugs for distribution. The government claims that
evidence that Rooks was a drug dealer supports a finding that Rooks
intended to acquire the drugs for distribution, as opposed to acquiring
them for personal consumption. Ultimately, we need not decide
whether the district court erred in admitting the evidence. Even if we
thought that the evidence was inadmissible, the error would be harm-
less. Again, because Rooks’s lawyer told the jury that he was a drug
dealer, evidence of his prior drug dealing was not prejudicial.

   Finally, the defendants challenge the admissibility of Elton Hunt-
er’s and Merritt Dixon’s testimony that Spencer told them that the
four (Spencer, Rooks, Williams, and Jackson) intended to rob Forde
of drugs. The defendants claim that this testimony was inadmissible
hearsay. Because the defendants did not object at trial, our review is
for plain error. See Olano, 507 U.S. at 731-32 (1993). Even if this evi-
dence was admitted in error, the defendants cannot show prejudice.
Alex Jackson also testified that the defendants intended to rob Forde
of drugs. Brooks testified that the defendants intended to rob Forde;
a jury could infer from Brooks’s testimony that the defendants
intended to take both money and drugs from Forde. In light of
Brooks’s and Alex Jackson’s testimony, Hunter’s and Dixon’s testi-
mony about Spencer’s statements was cumulative evidence. Accord-
ingly, the defendants cannot show prejudice.

                                   IV.

   The defendants claim that they are entitled to a new trial because
of the prosecutor’s improper comments during closing argument. Spe-
cifically, the defendants challenge the prosecutor’s statements that
Spencer’s guilty plea was evidence that the defendants were also
guilty. Because the defendants did not object to the comments at trial,
our review is for plain error. See Olano, 507 U.S. at 731-32. In order
to obtain a new trial based upon prosecutorial misconduct (1) the
prosecutor’s remarks or conduct must have been improper and (2) the
remarks or conduct must have prejudicially affected the defendant’s
substantial rights so as to deprive him of a fair trial. See United States
v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).
                        UNITED STATES v. ROOKS                         7
   The prosecutor’s comments were improper. Spencer ultimately
pled guilty to Forde’s murder. The prosecutor argued that the fact that
Spencer pled guilty was evidence that the defendants participated in
the crime. "It is a well-accepted principle that evidence about the con-
viction of a co-conspirator is inadmissible as substantive proof of the
guilt of a defendant." See id. (internal quotation marks omitted). See
also United States v. Miranda, 593 F.2d 590, 594 (5th Cir. 1979);
United States v. Gullo, 502 F.2d 759, 761 (3d Cir. 1974). The prose-
cutor violated this principle by making substantive use of the fact that
Spencer pled guilty. Therefore, the prosecutor’s comments were
improper.

   However, the prosecutor’s comments did not deprive the defen-
dants of a fair trial. The defendants not only conceded that Spencer
was the gunman, but they actually requested that the judge inform the
jury that Spencer had pled guilty. As the defense explained to the
jury, Spencer was the gunman, and the defendants were innocent.
Therefore, this case presents a unique situation in which the prosecu-
tor’s emphasis on a co-conspirator’s guilty plea was not unduly harm-
ful to the defense. Further, the district court gave a limiting
instruction that cautioned the jury not to consider the fact that Spencer
pled guilty in determining whether the defendants were guilty. In light
of the unique circumstances of this case, we cannot conclude that the
defendants were prejudiced to such an extent that they were deprived
of a fair trial. As a result, they are not entitled to a new trial.

                                   V.

   The defendants claim that the district court erred by failing to sub-
mit a special verdict form to the jury for the third count of the indict-
ment. Because the defendants did not request a special verdict, our
review is for plain error. See United States v. Bowens, 224 F.3d 302,
314 (4th Cir. 2000). The third count of the indictment charged the
defendants with aiding and abetting in the use of a firearm to commit
murder during a drug trafficking offense. The indictment charged that
this was in violation of §§ 924(c) & (j). Section 924(c) prohibits the
use or carrying of a firearm during a drug trafficking offense. Section
924(j) provides for enhanced penalties under § 924(c) if the firearm
was used to commit murder. The jury returned a general verdict of
guilty on the third count. The defendants claim that the jury may only
8                       UNITED STATES v. ROOKS
have found them guilty of carrying a firearm in violation of § 924(c).
In other words, the defendants claim that a special verdict should have
been submitted, which would have allowed the jury to indicate specif-
ically whether it found the defendants guilty of aiding and abetting in
the use of a firearm to commit murder in violation of § 924(j). See
United States v. Quicksey, 525 F.2d 337, 340-41 (4th Cir. 1975)
(holding that when a general verdict is returned on a count alleging
two separate crimes, defendant may only be sentenced on the lesser
crime). The defendants’ argument is meritless. The judge instructed
the jury that in order to convict on the third count, it had to find that
the defendants "murdered Reynold Curtis Forde . . . or aided [and]
abetted in his murder." Thus, there is no possibility that the jury found
the defendants guilty of only carrying a firearm in violation of
§ 924(c). Instead, the jury convicted the defendants of aiding and
abetting in the use of a firearm to commit murder during a trafficking
offense in violation of § 924(j).

                                  VI.

   The defendants claim that their sentences were enhanced in viola-
tion of Apprendi v. New Jersey, 530 U.S. 466 (2000). The defendants
were convicted of drug conspiracy in violation of 21 U.S.C. § 846. At
sentencing the district court applied the cross reference contained in
U.S.S.G. § 2D1.1(d)(1). Under that section if the court determines
that during the course of the drug conspiracy a victim was killed
under circumstances that constitute first degree murder, an offense
level of 43 applies. An offense level of 43, regardless of the defen-
dant’s criminal history, carries a mandatory life sentence. The defen-
dants argue that the enhancement violates Apprendi v. New Jersey,
530 U.S. 466 (2000). The defendants do not argue that their sentences
were enhanced beyond the statutory maximum for drug conspiracy.
(They were indicted for conspiring to traffic in over 50 grams of
crack, which under 21 U.S.C. § 841(b)(1)(A) carries a maximum pen-
alty of life in prison.) Rather, they argue that Apprendi prohibits a
judge from determining facts at sentencing that were not presented to
the jury. The Apprendi rule has not been violated in this case.
Apprendi held that sentencing factors (other than recidivism) may not
be used to enhance a defendant’s sentence beyond the statutory maxi-
mum. Id. at 490. As we concluded in United States v. Kinter, 235
F.3d 192, 201 (4th Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001),
                       UNITED STATES v. ROOKS                        9
the federal Sentencing Guidelines do not implicate Apprendi because
the Guidelines provide that a sentence cannot exceed the statutory
maximum. See U.S.S.G. § 5G1.1(a). Accordingly, the defendants’
Apprendi argument is without merit.

   Whether the enhancement passes muster under McMillan v. Penn-
sylvania, 477 U.S. 79 (1986), presents a closer question. McMillan
held that, as a general rule, sentencing factors can be used to enhance
a defendant’s sentence within the statutory maximum. Id. at 87-88.
However, the Court cautioned that some enhancements that do not
exceed the statutory maximum may nonetheless be unconstitutional.
Specifically, the Court indicated that when the enhancement is the
"tail which wags the dog of the substantive offense," the enhancement
may be unconstitutional. Id. at 88. In this case, the probation officer
did not calculate the defendants’ sentences without the first degree
murder enhancement. However, a fair assessment is that given the
drug quantities involved, Rooks was facing a maximum sentence of
twenty-five years, while Williams faced twenty-seven years. After the
application of the murder enhancement, they received mandatory life
sentences. At bottom, the defendants were sentenced for first degree
murder even though they were only convicted of drug conspiracy.
Ultimately, we must affirm because we rejected an identical claim in
United States v. Crump, 120 F.3d 462 (4th Cir. 1997). Crump was
convicted of drug conspiracy. The district court applied the first
degree murder enhancement and sentenced him to life. We held that
the enhancement did not violate the Constitution. See id. at 468. The
essential facts of Crump are indistinguishable from the facts of this
case. Accordingly, we affirm the defendants’ sentences. See Mentav-
los v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir. 2001) ("[A] panel of
this court cannot overrule, explicitly or implicitly, the precedent set
by a prior panel of this court.").

                                 VII.

   We affirm the convictions and sentences of each of the defendants
in this case.

                                                          AFFIRMED
