                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

USA v. King
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3109




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"USA v. King" (2004). 2004 Decisions. Paper 863.
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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 01-3109




                UNITED STATES OF AMERICA

                                 v.

                        JERMAINE KING
                          a/k/a Waters

                            Jermaine King,

                                      Appellant




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 00-CR-313-01)
          District Court Judge: Honorable J. Curtis Joyner


                      Argued March 29, 2004

      Before: ALITO, FISHER, and ALDISERT, Circuit Judges.

                  (Opinion Filed: April 7, 2004)

                                             ROBERT E. MADDEN
                                             Law Offices of Robert E. Madden
                                             1401 Walnut Street
                                             Suite 300
                                             Philadelphia, PA 19102
                                                        Counsel for Appellant

                                                        KATHY A. STARK (Argued)
                                                        Suite 1250
                                                        Office of the United States
                                                        Attorney
                                                        615 Chestnut Street
                                                        Philadelphia, PA 19106

                                                        Counsel for Appellee




                               OPINION OF THE COURT


PER CURIAM:

       As we write only for the parties involved, we will not restate the evidence below.

We find King’s claims to be without merit and affirm the District Court’s ruling and

sentence.

       First, the District Court properly increased King’s sentence based on his significant

leadership role in the conspiracy and the firearm that was used in the conspiracy. As this

Circuit has already held that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not

apply unless the sentence imposed exceeds the statutory maximum for the conviction, we

reject King’s argument that Apprendi applies to his sentence. See, e.g., United States v.

Williams, 235 F.3d 858, 862-863 (3d Cir. 2000) cert. denied 534 U.S. 818 (2001); United

States v. Cepero, 224 F.3d 256, 267 fn. 5 (3d Cir. 2000)(en banc) cert. denied 531 U.S.




                                             2
1114 (2001). We also hold that the District Court was not clearly erroneous1 when it

sentenced King based on his leadership role in the conspiracy. Both witnesses and

telephone and beeper records show King to have been the center of his drug gang.

Furthermore, the District Court was not clearly erroneous when it found that the use or

possession of a firearm in the conspiracy was clearly foreseeable. As the leader of a

sizeable crack cocaine distribution ring, in which two members had already been shot, the

use of a firearm by a member of the conspiracy was more than reasonably foreseeable.

See United States v. Ramos, 147 F.3d 281, 286-287 (3d Cir. 1998); United States v.

Dixon, 982 F.2d 116 (3d Cir. 1992).

       Second, we find that the District Court did not abuse its discretion when it

admitted the government’s charts and exhibits summarizing the electronic

communications between the conspirators. See App. A64-A70. The government,

through witnesses and records, was able to properly establish that all of the telephone and

beeper numbers on the charts and exhibits were controlled by King or his associates. See,

e.g., Supp. App. at 172-173, 103; 126; 149. Furthermore, the charts and exhibits were

accurately explained by a government witness, see Supp. App. 205-208, and the District

Court did not abuse its discretion in finding them more probative then prejudicial. See




       1
       While we believe that the District Court properly used the “preponderance of the
evidence standard,” United States v. Miele, 989 F.2d 659, 663 fn. 3 (3d Cir. 1993), our
holding would be the same even under the “clear and convincing evidence” standard.
United States v. Kikumura, 918 F.2d 1084, 1110-1111 (3d Cir. 1990)

                                             3
Federal Rules of Evidence 403 and 1006; United States v. Serafini, 233 F.3d 758, 768 fn.

14 (3d Cir. 2000).

             For the above reasons, we affirm.




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