UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 99-4479

JERMAINE DAVIS, a/k/a Geo,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-98-730)

Submitted: February 15, 2000

Decided: March 16, 2000

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

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Judgment withheld by unpublished per curiam opinion.

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COUNSEL

John M. Ervin, III, Darlington, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Alfred W. Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury convicted Jermaine Davis of possession with intent to dis-
tribute cocaine base and marijuana, 21 U.S.C.A.§ 841(a)(1) (West
1999) (Count One), and conspiracy to possess with intent to distribute
cocaine base and marijuana, 21 U.S.C.A. § 846 (West 1999) (Count
Two). Davis now appeals his 360-month sentence, claiming that the
district clearly erred in holding him accountable for 14.1 grams of
cocaine base about which Morris King and Calvin Woods testified.
Davis has filed a motion to file a pro se supplemental brief, in which
he asserts that the Government did not establish that the substance
was cocaine base, as opposed to powder cocaine. We grant the motion
to file the supplemental brief but find no merit in the issues raised by
counsel or Davis in his pro se brief.

However, we have sua sponte* reviewed the facts of this case in
light of our recent decision in United States v. Rhynes, 196 F.3d 207
(4th Cir. 1999), vacated in part on other grounds by order entered
Feb. 3, 2000. In Rhynes, the defendants were charged with conspiracy
to possess with intent to distribute heroin, cocaine, cocaine base, and
marijuana. The district court instructed the jury that it could return a
guilty verdict if it found a defendant had conspired to distribute any
of these substances. "The court submitted a general verdict sheet to
the jury, and the jury returned a general verdict finding all of defen-
dants guilty of the conspiracy count. Neither the Government nor the
defense requested a special verdict as to the object of the conspiracy."
Id. at 237. Relying on Edwards v. United States, 523 U.S. 511 (1998),
and United States v. Quicksey, 525 F.2d 337 (4th Cir. 1975), we held
that a district court is prohibited "from imposing a sentence in excess
of the statutory maximum for the least-punished object on which the
conspiracy could have been based." Rhynes, 196 F.3d at 238.
_________________________________________________________________
*Although Davis did not raise the issue in the district court or on
appeal, we have authority to review the issue for plain error because it
affects Davis' substantial rights. See United States v. Granados, 168 F.3d
343, 346 (8th Cir. 1999).

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Here, Davis was held accountable for 1048 kilograms of marijuana,
representing eight kilograms of marijuana and 52.1 grams of crack,
which has a marijuana equivalency of 1040 kilograms. This resulted
in a base offense level of 32, see U.S.S.G.§ 2D1.1(c) (1998). Because
Davis was a career offender, and because the maximum statutory pen-
alty for over 1000 kilograms of marijuana is life imprisonment, see
21 U.S.C. § 841(b)(1)(A)(vii), his offense level increased to 37, with
a criminal history category of VI. See U.S. Sentencing Guidelines
Manual § 4B1.1. His corresponding guideline range was 360 months
to life, and he was sentenced to 360 months in prison.

It is impossible, given the jury's general verdict of guilt on each
count, to know whether it found him guilty of conspiracy to distribute
cocaine base, or marijuana, or both. Similarly, it is unknown whether
the jury found that he possessed with intent to distribute marijuana,
or cocaine base, or both. If the jury found these to have been
"marijuana-only" offenses, Rhynes teaches that the statutory maxi-
mum term of imprisonment to which Davis was exposed was five
years, given his being held accountable for only eight kilograms of
marijuana. See 21 U.S.C. § 841(b)(1)(D).

Davis received a 360-month sentence on the assumption that the
jury convicted him based on his involvement with both cocaine base
and marijuana. However, it is possible, given the general verdict of
guilt on both counts, that the jury convicted him based on marijuana-
only offenses. If that is the case, his 360-month sentence far exceeds
the five years to which marijuana-only convictions would have
exposed him. In accordance with Rhynes, we shall withhold judgment
as to Davis' sentence, giving the United States the choice between:
(1) resentencing him consistent with marijuana-only convictions; and
(2) retrying him.

The contentions actually raised on appeal have no merit. Although
Davis argues that the district court erred when it held him accountable
for the 14.1 grams of cocaine base testified to by Woods and King,
our review of the record reveals no error. We are"doubly" reluctant
to overturn factual findings of the district court when its factual deter-
minations as to drug quantities rest upon the demeanor and credibility
of witnesses at trial. See United States v. D'Anjou, 16 F.3d 604, 614
(4th Cir. 1994). Here, the district court found King and Woods credi-

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ble, noting that they gave very detailed accounts of their respective
transactions with Davis. Accordingly, the court held Davis responsi-
ble for the amount of cocaine base about which these witnesses testi-
fied. This finding was not clearly erroneous. See United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir. 1996) (stating standard of review).

Finally, there is no merit to Davis' pro se argument that the Gov-
ernment did not establish that the substance was cocaine base, as
opposed to powder cocaine. Davis himself admits that lab reports
determined the substance to be cocaine base, and the district court
found credible the testimony of Woods and King that they dealt in
crack with Davis.

We therefore reject the arguments raised in the briefs but withhold
judgment pending a decision by the Government as to whether to
resentence Davis for marijuana-only offenses or to retry him. We dis-
pense 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.

JUDGMENT WITHHELD

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