                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4244



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DARRYL PATTERSON,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-99-165-10-V)


Submitted:   July 8, 2005                  Decided:   August 9, 2005


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Jennifer Marie
Hoefling, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Darryl   Patterson    appeals    from      his    conviction          for

conspiracy to possess with intent to distribute crack cocaine and

the 360-month sentence imposed.         He challenges the sufficiency of

the evidence of a single, rather than multiple, conspiracies, and

the sufficiency of the evidence that he remained a member of the

conspiracy    despite   his     incarceration    for    part       of   the    time.

Patterson also contends that the district court committed plain

error by not instructing the jury about the five-year limitations

period and abused its discretion in denying his motion for a new

trial.   Patterson also challenges the application of the murder

cross-reference in determining his sentence and asserts that the

district court erred in determining the extent of the downward

departure    awarded.     For    the   reasons   that    follow,        we    affirm

Patterson’s conviction but vacate his sentence and remand for

resentencing.

             Viewing the evidence in the light most favorable to the

government, we find that the evidence was sufficient for the jury

to find that Patterson was a member of a single conspiracy and that

he remained a member of the conspiracy after his incarceration.

See Glasser v. United States, 315 U.S. 60, 80 (1942) (providing

standard); United States v. Crockett, 813 F.2d 1310, 1317 (4th cir.

1987).      Resolving   all   reasonable    inferences        in   favor      of   the

government, see United States v. Reavis, 48 F.3d 763, 771 (4th Cir.


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1995), we also find that Patterson failed to make a sufficient

showing that he “acted to defeat or disavow the purposes of the

conspiracy.”    United States v. Barsanti, 943 F.2d 428, 437 (4th

Cir. 1991).    Thus, he is presumed to have continued his membership

in the conspiracy.   See United States v. West, 877 F.2d 281, 289-90

& n.4 (4th Cir. 1989).

           Patterson next contends that the district court erred in

denying his motion for a new trial based on:     (1) the admission of

evidence of unrelated drug deals and murders; (2) a newspaper

article mentioning Patterson’s prior convictions that was published

during the trial; and (3) the weight of the evidence of multiple,

rather than a single, conspiracy.    We find no abuse of discretion

in the district court’s ruling.     See United States v. Arrington,

757 F.2d 1484, 1486 (4th Cir. 1995) (providing standard); United

States v. Francisco, 35 F.3d 116, 119 (4th Cir. 1994) (discussing

presumption that jury follows instructions given); Crockett, 813

F.2d at 1317 (discussing factors to consider in finding single or

multiple conspiracies).

           Patterson also asserts that the district court plainly

erred by not instructing the jury on the five-year limitations

period.   See 18 U.S.C.A. § 3282 (West Supp. 2005); United States v.

Matzkin, 14 F.3d 1014, 1017-18 (4th Cir. 1994) (reviewing for plain

error the omission of jury instruction on statute of limitations

raised for first time on appeal).       We find that Patterson waived


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this defense by not asserting it at trial.       See Matzkin, 14 F.3d at

1017 (“The statute of limitations [] is not jurisdictional.           It is

an affirmative defense that may be waived.”).                Additionally,

because there was sufficient evidence that Patterson engaged in

conduct in furtherance of the conspiracy within five years prior to

the date of the indictment, we find no plain error in the court’s

failure   to   sua   sponte   instruct   the   jury   on   the   statute   of

limitations.    See Glasser, 315 U.S. at 80; West, 877 F.2d at 289-90

& n.4; Barsanti, 943 F.2d at 437.

           Citing United States v. Booker, 125 S. Ct. 738 (2005),

Smith argues his sentence is unconstitutional because it was based

on facts that were neither charged in the indictment nor found by

the jury beyond a reasonable doubt.            The jury found Patterson

guilty of the drug conspiracy charge and also found that Patterson

was accountable for “50 grams or more of cocaine base.”            Based on

these findings alone, Patterson’s offense level was 32 and his

guideline sentencing range was 168 to 210 months imprisonment. See

U.S. Sentencing Guidelines Manual, Ch. 5, Pt. A (Sentencing Table)

(2000).

           However, the court applied the cross-reference in USSG

§ 2D1.1(d)(1) to USSG § 2A1.1 (First Degree Murder), upon its

finding that Andre “Cadillac” Nelson was killed during an act in

furtherance of the conspiracy.      This finding increased Patterson’s

offense level to 43 and the Sentencing Guidelines prescribed a


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sentence of life imprisonment.          The district court then departed

downward     two    levels,   finding    that   Nelson   was     not   killed

intentionally and Patterson was not the one who shot Nelson.              See

USSG § 2A1.1, comment. (n.1). Patterson’s sentencing range was 360

months to life imprisonment.      The court sentenced Patterson to 360

months.

           In Booker, the Supreme Court held that the federal

sentencing     guidelines’     mandatory    scheme—which       provides   for

sentencing enhancements based on facts found by the court—violated

the Sixth Amendment.      125 S. Ct. at 746.      The Court remedied the

constitutional violation by making the guidelines advisory. Id. at

746, 756-57.       In United States v. Hughes, 401 F.3d 540 (4th Cir.

2005), this court held that a sentence enhanced based on facts

found by the court, rather than upon facts found by the jury or

admitted by the defendant, constitutes plain error that affects the

defendant’s substantial rights and warrants reversal.            Id. at 547-

48.

           In light of Booker and Hughes, we find that the district

court erred in imposing a sentence under the federal sentencing

guidelines as they existed prior to Booker.1               Accordingly, we


      1
      As we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of course
offer no criticism of the district judge, who followed the law and
procedure in effect at the time” of Patterson’s sentencing. See
generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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vacate Patterson’s sentence and remand for resentencing consistent

with Booker and its progeny.2       See id. at 546 (citing Booker 125 S.

Ct. at 764-65, 767 (Breyer, J., opinion of the Court)).

              On remand, the district court may again find that the

murder     cross-reference   applies    and   again   be   asked   to   depart

downward from offense level 43.           Therefore, we will now address

Patterson’s challenge to the district court’s determination of the

extent of the departure.          Application Note 1 to USSG § 2A1.1

provides:     “If the defendant did not cause the death intentionally

or   knowingly,    a   downward   departure   may   be   warranted.”         USSG

§    2A1.1,   comment.   (n.1).    In   determining      the   extent   of    the

departure, the Guidelines instruct that the court should consider

“the defendant’s state of mind (e.g., recklessness or negligence),

the degree of risk inherent in the conduct, and the nature of the

underlying offense conduct.”        Id.     The Note limits the extent of

the departure to not below the offense level for second degree

murder (level 33) or below the level determined without application


       2
      Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767.      On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C. § 3553(a)
(West 2000 & Supp. 2005), and then impose a sentence. Id. If that
sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2). Id. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.

                                    - 6 -
of   the   cross-reference.    Id.      Here,   the   district   court

appropriately considered the relevant factors and departed downward

by two levels. Although the court referenced the departure allowed

for a minor role in an offense, the court clearly did not confuse

the applicable standards, as Patterson contends it did.

           In conclusion, although we affirm Patterson’s conviction,

we vacate his sentence and remand for resentencing.       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 IN PART,
                                       VACATED IN PART, AND REMANDED




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