                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                          No. 00-4226
OLOYEDE JOHNSON, a/k/a Johnson
Oloyede, a/k/a Little Black,
               Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                       No. 00-4227
WILLIAM M. PARROS, a/k/a B.J.,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                          No. 00-4228
ALFRED CHEESE, III, a/k/a Big
Cheese,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                       No. 00-4271
CLARENCE HICKS, a/k/a Bunky,
              Defendant-Appellant.
                                       
2                      UNITED STATES v. JOHNSON



UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4280
KENDALL SCHUYLER, a/k/a Sleepy,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4315
OWEN ROBINSON, a/k/a Heavy,
             Defendant-Appellant.
                                       
          Appeals from the United States District Court
           for the District of Maryland, at Baltimore.
                 Benson E. Legg, District Judge.
                          (CR-98-259-L)

                      Submitted: August 31, 2001

                      Decided: November 2, 2001

     Before NIEMEYER and MICHAEL, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                             COUNSEL

David P. Henninger, Bel Air, Maryland; Gerald D. Glass, Towson,
Maryland; Flynn M. Owens, Baltimore, Maryland; Michael D. Mon-
                      UNITED STATES v. JOHNSON                       3
temarano, Baltimore, Maryland; Gary A. Ticknor, Baltimore, Mary-
land; G. Godwin Oyewole, Washington, D.C., for Appellants.
Stephen M. Schenning, United States Attorney, Robert R. Harding,
Assistant United States Attorney, Tarra DeShields, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.



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


                             OPINION

PER CURIAM:

   Oloyede Johnson, William Parros, Alfred Cheese, Clarence Hicks,
Kendall Schuyler, and Owen Robinson were convicted on charges
related to their participation in a drug distribution ring operating in
Baltimore, Maryland. For the following reasons, we affirm their con-
victions, although we vacate the sentences imposed on Parros, Schuy-
ler and Robinson and remand as to those Appellants for re-sentencing.

                                  I.

   Appellants are former members of a drug trafficking conspiracy
based predominantly in the O’Donnell Heights area of southeast Bal-
timore. That conspiracy, captained by Antonio Howell, distributed
primarily cocaine base, but also sold powder cocaine, heroin, and
marijuana. At the height of the conspiracy, Appellants required
weekly trips to New York to obtain kilogram quantities of powder
cocaine, which they would cook into cocaine base, in order to supply
their operation. The volume and profit of the organization was
matched by its ruthlessness, however, as at least two individuals were
killed as part of the organization’s attempt to secure control over its
areas of distribution.

  At trial, several members of the conspiracy testified against the
Appellants, including Howell and Michael Scales. At the conclusion
4                     UNITED STATES v. JOHNSON
of the thirty-day trial, a jury convicted each Appellant of conspiring
to distribute a controlled substance in violation of 21 U.S.C.A.
§§ 846, 841 (West 1999 & Supp. 2001). Johnson was also convicted
of conspiring to murder and committing murder in aid of racketeering
activity in violation of 18 U.S.C.A. § 1959(a)(1), (5) (West 2000),
possessing cocaine base with intent to distribute in violation of 21
U.S.C.A. § 841 (West 1999 & Supp. 2001), possession of a firearm
by a felon in violation of 18 U.S.C.A. § 922(g) (West 2000), and use
of a firearm in a drug trafficking offense in violation of 18 U.S.C.A.
§ 924(c) (West 2000). Additionally, Cheese was also convicted of two
counts of possession of a firearm by a felon in violation of § 922(g),
Schuyler of carrying a firearm in connection with drug trafficking in
violation of § 924(c), and Robinson of possessing cocaine base with
intent to distribute in violation of § 841(a).

   Although Appellants raise nine issues on appeal, collectively they
raise three challenges to their convictions on Count Three, charging
Appellants with conspiring to distribute controlled substances. As a
result of their convictions on Count Three, William Parros and Clar-
ence Hicks each received thirty-year sentences,1 and Johnson a ten-
year sentence. Cheese, Schuyler and Owen Robinson, however,
received life sentences. On appeal, Appellants contend that, in light
of the Supreme Court’s decision in Apprendi v. New Jersey,2 § 841 is
unconstitutional, and that their sentences were imposed in violation of
Apprendi’s requirement that "other than the fact of prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." 530 U.S. 466, 490.

                                  II.

   Because Appellants did not raise these challenges to their convic-
tions and sentences before the district court, they may only do so on
appeal if they can demonstrate plain error. See United States v. Angle,
254 F.3d 514, 517 (4th Cir. 2001) (citing Fed. R. Crim. P. 52(b);
    1
    Parros and Hicks were only convicted on Count Three of the second
superseding indictment.
  2
    530 U.S. 466 (2000).
                       UNITED STATES v. JOHNSON                         5
United States v. Olano, 507 U.S. 725, 731-32 (1993)). Consequently,
in order to prevail on appeal Appellants must demonstrate that: 1)
their indictment does not include the specific threshold drug quanti-
ties necessary for conviction under the aggravated drug trafficking
offenses in § 841(b)(1)(A), (B);3 2) their resulting sentences are in
excess of the statutory maximum otherwise available under
§ 841(b)(1)(C); 3) sentencing in this manner affected their substantial
rights; and 4) this court should notice that error. See United States v.
Promise, 255 F.3d 150, 156-57, 160, 161 (4th Cir. 2001). We note as
a threshold matter that the Appellants’ indictment does not identify
the drug quantities involved.

                                   A.

    Initially, we reject Appellants’ challenge to the constitutionality of
§ 846 and § 841. In essence, Appellants argue that because courts uni-
formly treated the criteria in § 841(b) permitting enhanced maximum
sentences as sentencing factors prior to Apprendi, but have since iden-
tified those facts as elements of "aggravated drug trafficking
offenses," see, e.g., Promise, 255 F.3d at 152 n.1, Apprendi renders
§ 841 internally inconsistent, and thus unconstitutional. However,
because the sentencing factor label applied to the drug thresholds of
§ 841(b) is a purely judicial construct, the creation and use of which
followed the enactment of § 841, we find the reassignment of these
facts from sentencing factors to elements of the offense following
Apprendi is not of constitutional moment. See United States v. Cerno-
byl, 255 F.3d 1215, 1218-19 (10th Cir. 2001) (citing cases from the
Fifth, Seventh, and Eleventh Circuits dismissing constitutional chal-
lenges to § 841 in the wake of Apprendi); see also Promise, 255 F.3d
at 168-74 (Luttig, J. concurring) (arguing the constitutional rule of
Apprendi should not impact the statutory analysis of § 841).

                                   B.

  With respect to Appellants’ challenge to their sentences on Count
Three of the second superseding indictment, we find that Johnson and
Hicks cannot show their sentences exceeded the applicable statutory
  3
   See United States v. Promise, 255 F.3d 150, 152 n.1 (4th Cir. 2001).
6                     UNITED STATES v. JOHNSON
maximums. Under § 841(b)(1)(C), a defendant whose indictment for
a violation of § 841(a) does not describe the quantities of drugs
involved may receive a sentence of twenty years upon conviction. As
a result, Johnson’s ten year sentence for his conviction under § 846,
which is punishable like a violation of § 841, does not give rise to an
error under Apprendi. See United States v. Angle, 254 F.3d 514, 518
(4th Cir. 2001).

   Similarly, Hicks cannot demonstrate error with respect to his thirty-
year sentence as to Count Three, his single count of conviction.
Although the base statutory maximum of § 841(b)(1)(C) is twenty
years, that subparagraph permits a maximum of thirty years where the
defendant has one or more prior felony convictions. Here, the Gov-
ernment filed the required pre-trial information on January 8, 1999
indicating its intent to seek enhanced penalties under § 841(b) against
Hicks, Cheese, Schuyler, and Robinson in accordance with 21 U.S.C.
§ 851 (1994). Because § 841(b)(1)(C) authorizes a ten-year enhance-
ment based solely on a defendant’s prior felony convictions, and
Apprendi explicitly exempts prior convictions from its scope, 530
U.S. at 490, Hicks’ thirty-year sentence does not contain an Apprendi
defect. Accordingly, Johnson’s and Hicks’ convictions and sentences
do not implicate Apprendi as a threshold matter.

   Although Parros, Cheese, Schuyler, and Robinson all received sen-
tences in excess of the maximum applicable to them under
§ 841(b)(1)(C), we find Cheese cannot satisfy the third prong of the
plain error inquiry, as his sentence does not affect his substantial
rights. Although Cheese’s life sentence on Count Three is erroneous,
because his offense level under the Sentencing Guidelines required a
mandatory life sentence, and he also received statutory-maximum life
sentences under § 924(e) for his firearms convictions, the error as to
Count Three did not expose him to a longer term of incarceration than
that to which he would otherwise be subject. See Angle, 254 F.3d at
518. As a result, Cheese cannot demonstrate the Apprendi error in his
sentence on Count Three affected his substantial rights.

   Applying the plain error analysis to the remaining Appellants, Par-
ros, Schuyler, and Robinson, we find their sentences must be vacated
in light of Apprendi. The life sentences imposed on Schuyler and
Robinson are in excess of the thirty-year statutory maximum dis-
                      UNITED STATES v. JOHNSON                        7
cussed above, demonstrating error that is plain. See Promise, 255 F.3d
at 156-57. Likewise, because the Government did not include Parros
in its pre-trial § 851 information, only the twenty-year maximum of
§ 841(b)(1)(C) was authorized as to him. See § 851. With respect to
the third prong of the plain error inquiry, we have found that a sen-
tence in excess of the authorized statutory maximum to which a
defendant would not otherwise be subject affects his substantial
rights. Id. Finally, we recently determined that where the sentence
imposed is defective due to a fatal error in the indictment, as is the
case here, this court should notice that error. United States v. Cotton,
261 F.3d 397, ___ (4th Cir. 2001). Accordingly, we vacate the sen-
tences imposed on Parros, Schuyler, and Robinson for Count Three,
as well as the life sentence imposed on Robinson for Count Four, and
remand to the district court for re-sentencing at or below the relevant
statutory maximums of § 841(b)(1)(C).4

   In light of the foregoing consideration of the Appellants’ sentences
in light of Apprendi, we find their additional collective assignments
of error to be meritless. With respect to the application of the cross-
reference contained in § 2A1.1(d) of the United States Sentencing
Guidelines Manual (2000) in calculating their sentences, we have
found that Apprendi does not reach a judge’s determination as to facts
impacting the determination of a sentence, provided the resulting sen-
tence is within the statutory maximum authorized by the elements
charged in the indictment. Promise, 255 F.3d at 156 n.5; United
States v. Kinter, 235 F.3d 192, 202 (4th Cir. 2000). Additionally, to
the extent some Appellants challenge the use of their prior convic-
tions against them at sentencing, the Supreme Court in Apprendi rec-
ognized that while its decision was arguably in conceptual tension
with Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998)
(5-4 decision) (holding prior convictions constitute sentencing factors,
even if they increase the available statutory maximum), it nonetheless
stated that its resolution left the sui generis issue of recidivism
addressed in Almendarez-Torres undisturbed. See Apprendi, 530 U.S.
at 489-90. Accordingly, we find these additional assignments of error
on appeal to be meritless.
  4
   We note, however, that because Schuyler and Robinson have multiple
counts of conviction, on remand their sentences may be "stacked" in
accordance with United States v. White, 238 F.3d 537 (4th Cir. 2001).
8                      UNITED STATES v. JOHNSON
                                   III.

  Appellants also raise several individualized assignments of error.
However, our careful review of each indicates that they do not under-
mine the validity of those Appellants’ convictions or sentences.

                                    A.

   On appeal, Johnson contends the district court erred in refusing
him the opportunity to explore transcripts of a state trial in which
Michael Scales, a Government witness against the Appellants, had
previously been accused of the murder that was the basis for Count
Sixteen of the instant indictment, charging both Johnson and Schuyler
with use of a firearm in relation to a drug trafficking crime in viola-
tion of § 924(c). Johnson contends that because Scales testified below
that the key witnesses at his state trial testified truthfully in exonerat-
ing him, and that their earlier statements were false, he should be per-
mitted to explore whether those witnesses’ earlier statements
(implicating both Scales and Schuyler) were false as Scales con-
tended, or were in fact true.

   We find the district court did not abuse its discretion in denying
Johnson the opportunity to do so. See United States v. Brooks, 111
F.3d 365, 371 (4th Cir. 1997) (reviewing evidentiary decisions for
abuse of discretion, subject to harmless error review). Essentially,
Johnson sought to present testimony through the Scales’ trial tran-
script in order to support his defense theory that others were responsi-
ble for the murder in question. However, Johnson’s presence at the
murder scene was not ruled out by the witnesses’ earlier statements
against Scales, and the testimony offered by Scales and Howell in the
instant trial, that Johnson was the triggerman and was wounded dur-
ing an exchange of gunfire, was corroborated by evidence that John-
son sought treatment at an area hospital on the night in question for
a bullet wound. Moreover, the jury was presented with evidence that
Scales had been tried and acquitted of the murder in question, based
on the inconsistent statements of the key witnesses. As a result, we
find there was a sufficient independent basis for Johnson to both chal-
lenge Scales’ credibility and raise the possibility that others were
responsible for the murder in question.
                       UNITED STATES v. JOHNSON                        9
   Johnson next argues the district court erred in denying his motion
for severance. Because there is a presumption that co-defendants
indicted together will be tried together, see Fed. R. Crim. P. 14, we
will only reverse a district court’s decision not to sever co-defendants
if it is so unfairly prejudicial that a miscarriage of justice would
result, United States v. Williams, 10 F.3d 1070, 1080 (4th Cir. 1993),
and thus we find that it abused its discretion in failing to sever. See
United States v. Smith, 44 F.3d 1259, 1267 (4th Cir. 1995). However,
because we find Johnson’s allegations on appeal indicate only that the
district court’s decision made his defense more difficult, United States
v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984) (internal citations
omitted), we find this assignment of error unavailing as well.

                                   B.

   Cheese offers two related assignments of error, which we find to
be meritless. First, Cheese claims the district court erred in failing to
suppress evidence seized from his vehicle based on information the
Government obtained from a confidential source, inasmuch as that
information failed to provide probable cause that his vehicle consti-
tuted forfeitable contraband, and was thus subject to a warrantless
search. Our review of the pre-trial suppression hearing indicates the
Government provided the district court with evidence both corrobo-
rating the source’s statement and confirming its reliability as required
by Illinois v. Gates, 462 U.S. 213, 233-34 (1983).5 Accordingly, we
find the district court’s suppression determination is not erroneous.

   Similarly, we find the district court did not err in declining to sup-
press evidence seized during the subsequent search of 1215 Sugar-
wood, a residence to which Cheese was linked through utility bills for
that address seized from his vehicle. On appeal, Cheese contends that
the items sought in the search warrant for that property could not rea-
sonably have been expected to be found there. However, contrary to
Cheese’s assertion on appeal, the schedule of items sought included
  5
   In particular, the Government substantiated the source’s track record
for reliability and the fact that Cheese had previously been stopped with
a firearm and large sum of cash, the hallmarks of drug trafficking, see
United States v. Kennedy, 32 F.3d 876, 882-83 (4th Cir. 1994); United
States v. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990), in the vehicle.
10                     UNITED STATES v. JOHNSON
indicia of ownership or occupancy, including items linking Cheese to
the residence. Accordingly, we find this assignment of error to be
meritless as well.

                                   C.

   Finally, Parros offers two challenges to his thirty-year custodial
sentence as to Count Three, his only count of conviction. Essentially,
Parros contends the district court’s decision not to adjust the computa-
tion of his offense level to reflect his relatively minor role in the con-
spiracy constitutes clear error, and that the district court misperceived
its authority to depart downward from the resulting sentencing range.
We disagree.

   As a preliminary matter, this Court reviews denials of a downward
adjustment to a defendant’s offense level for clear error. See United
States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001). Here, the record
supports the district court’s conclusion that while Parros was indeed
the least involved defendant at trial, his role, although limited, was
not commensurate with a minor role as contemplated by USSG
§ 3B1.2. Accordingly, we decline to disturb Parros’ sentence on that
basis.

   We also reject Parros’ challenge to the district court’s conclusion
that a downward departure was not authorized. We need not resolve
here whether a jury’s recommendation for leniency can even serve as
a basis for a downward departure under the Sentencing Guidelines.
Compare United States v. Mickens, 977 F.2d 69, 73 (2nd Cir. 1992)
(concluding a downward departure is permissible), with United States
v. Rose, 20 F.3d 367, 374 n.6 (9th Cir. 1994) (stating a downward
departure is not permitted), and United States v. Dorvil, 784 F. Supp.
849, 853 (S.D. Fla. 1991) (concluding a downward departure is not
permitted). Under the circumstances of this case, the district court’s
conclusion that Parros’ role in the offense made him ineligible for a
downward adjustment under § 3B1.2 disqualified Parros for a down-
ward departure under § 5K2.0 based upon that same factor. See Koon
v. United States, 518 U.S. 81, 94-95 (1996) (even an encouraged fac-
tor is not appropriate basis for departure if applicable guideline has
taken it into account).
                       UNITED STATES v. JOHNSON                         11
                                   IV.

   In light of the foregoing, we affirm the Appellants’ convictions, but
vacate the sentences imposed on Parros, Schuyler, and Robinson, and
remand those Appellants for re-sentencing consistent with this opin-
ion. Additionally, while we grant Hicks’ motion to file a pro se sup-
plemental brief, we deny relief on the claims raised therein as meritless.6
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                          AFFIRMED IN PART, VACATED IN PART,
                                              AND REMANDED
  6
   In that brief, Hicks argues 21 U.S.C.A. § 844 (West 1999) provides
the appropriate penalty provision where drug quantity is not charged in
the indictment. However, we have previously stated § 841 provides the
penalty provisions for violations of § 846. See Promise, 255 F.3d at 153
n.3. Hicks further argues the appropriate statutory maximum against
which to make the Apprendi inquiry is provided by the Sentencing
Guidelines. However, we find this argument meritless. See Kinter, 235
F.3d at 201.
