                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-4081


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHRISTOPHER BELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.   Margaret B. Seymour, Chief District
Judge. (1:08-cr-00730-MBS-3)


Argued:   February 1, 2013                 Decided:   April 26, 2013


Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion.      Judge Niemeyer       wrote   the
opinion, in which Judge Duncan and Judge Diaz joined.


ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. John David Rowell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF:   William N. Nettles, United States Attorney, Jeffrey
Mikell Johnson, Robert F. Daley, Jr., Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

      A    jury    convicted        Christopher         Bell    on        one     count    of

conspiracy to possess with intent to distribute 5 kilograms of

cocaine and 280 grams of cocaine base and on three counts of

possession with intent to distribute a quantity of cocaine.                               The

district court sentenced him to 380 months’ imprisonment.                                  On

appeal, Bell contends (1) that the superseding indictment on

which he was convicted improperly increased the alleged drug

amounts, in retaliation for his successful appeal, allowing him

to   withdraw     an   earlier      guilty      plea    entered       on    the    original

indictment; (2) that the district court erred in denying his

Batson claim; (3) that the district court erred in failing to

suppress       statements    that    he     made       pursuant      to     an    allegedly

involuntary Miranda waiver; and (4) that, in sentencing him, the

district court erred in finding that he was a career offender

and in applying various other sentencing enhancements.                              We find

Bell’s arguments unpersuasive and affirm.


                                            I

      Bell     contends     first    that       the    superseding         indictment      on

which     he     was   convicted      should          have     been        dismissed      for

prosecutorial      vindictiveness.              He    claims   that       the    prosecutor

acted     with     “actual     animus”          or,    alternatively,             that    the




                                            2
circumstances         gave    rise     to    a       “presumption           of       prosecutorial

vindictiveness.”

        The original indictment charged Bell in the first of four

counts with conspiracy to distribute 50 grams or more of cocaine

base.      Bell pleaded guilty to this conspiracy count, and the

district court sentenced him to 380 months’ imprisonment.                                      After

Bell appealed his conviction, contending that his plea hearing

did     not     comply    with   Rule       11,       the       government           agreed    to       a

withdrawal of his guilty plea and a remand.

        After     remand,     the      grand         jury       returned         a    superseding

indictment       containing      the        same      four       counts      alleged          in    the

original        indictment.          The     superseding              indictment,         however,

increased       the   drug    quantities         alleged         to    be   involved          in    the

conspiracy count from 50 grams or more of cocaine base to 5

kilograms or more of cocaine and 280 grams or more of cocaine

base.     It also added allegations of “aiding and abetting” to the

three distribution counts.              Bell claimed that these changes were

made in retaliation for his successful appeal, and he filed a

motion to dismiss the indictment.                     The district court denied the

motion, and Bell proceeded to trial.                            A jury convicted Bell on

all counts, and the district court again sentenced him to 380

months’ imprisonment.

      Bell      argues    now    that       these         circumstances          reveal       either

actionable       animus      against       him       or    at    least      give       rise        to   a

                                                 3
presumption          of    prosecutorial           vindictiveness.              The     government

explains that it did not obtain the superseding indictment in

retaliation for Bell’s successful appeal, but rather to equalize

the threshold drug amounts in the superseding indictment with

those alleged in the original indictment in light of the newly

enacted Fair Sentencing Act, which took effect August 3, 2010.

It also points out that on the appeal, it consented to a remand.

       We     have        noted     that      if        a    prosecutor       “responds          to    a

defendant’s           successful        exercise            of    his   right    to     appeal        by

bringing         a     more       serious          charge         against       him,       he        acts

unconstitutionally.”               United States v. Wilson, 262 F.3d 305, 314

(4th     Cir.        2001).        To    demonstrate              actual     vindictiveness,           a

defendant        must      show    that      the    government          harbored       “vindictive

animus” and that the superseding indictment was brought “solely

to punish” him.            Id. at 316 (emphasis in original).                          A defendant

may    gain      the      benefit       of   a    presumption           of   vindictiveness           by

pointing      “to      circumstances             surrounding        the      initiation         of    the

prosecution and show that they ‘pose a realistic likelihood of

vindictiveness.’”               Id. at 317 (quoting Blackledge v. Perry, 417

U.S. 21, 27 (1974)).

       Although            Bell         provides             no     evidence          of        actual

vindictiveness,            he     claims     that           the   surrounding     circumstances

give him the benefit of a presumption, relying on:                                          (1) the

timing      of    the      superseding           indictment         following     a     successful

                                                    4
appeal; (2) the increased drug quantities alleged in the amended

conspiracy      count;   and     (3)   the   addition    of   the    aiding    and

abetting allegations in the counts charging actual distribution.

      We conclude that the district court did not err in denying

Bell’s motion to dismiss based on prosecutorial vindictiveness.

While the indictment was indeed filed after Bell successfully

challenged his plea hearing, the government recognized the error

and    consented    to     the    remand.      Moreover,      the    allegations

increasing the drug amounts comport exactly with new threshold

amounts stated in the Fair Sentencing Act.               The Fair Sentencing

Act   (“FSA”)    altered    the    threshold    quantity      of    cocaine   base

necessary to trigger the mandatory sentencing minimums in 21

U.S.C. § 841(b).         Just as the initial indictment alleged the

necessary threshold amounts under pre-FSA law -- 50 grams or

more of cocaine base, see 21 U.S.C. § 841(b) (2006) -- the

superseding indictment alleged the threshold amounts in the FSA

-- 5 kilograms or more of cocaine and 280 grams or more of

cocaine base, see 21 U.S.C. § 841(b) (2012).                  We conclude that

the district court did not err in finding that the superseding

indictment was brought not because of Bell’s successful appeal

but because of a change in the law.

      Also, the addition of the aiding and abetting allegations

to    the   distribution     counts    did   not   add   additional      charges

against Bell.      See United States v. Johnson, 537 F.2d 1170 (4th

                                         5
Cir. 1976).         Rather, the allegations simply provided a structure

that    facilitated              the     government’s            ability        to     prove    the

previously alleged counts against Bell.                              We conclude that these

changes       were         not     “sufficiently               suggestive       of      vindictive

prosecution.”         Wilson, 262 F.3d at 317.


                                                    II

       Bell next contends that the government violated Batson v.

Kentucky, 476 U.S. 79 (1986), in exercising its seven peremptory

juror strikes against African Americans.                                 When the government

made    the    strikes,           Bell       made        a    Batson    motion,       asking     the

government       “to       state       any    [race]          neutral       reasons     for    those

strikes.”            When        the     court       directed          the    request     to     the

government, the government responded in detail, giving several

reasons    for       each        strike.           The       court   then     found     that    “the

government       ha[d]       articulated            race        neutral       reasons    for     the

strike[s]” and therefore denied the motion.                                  Bell contends that

the    district       court       erred       in    not       comparing       the     government’s

proffered reasons for the strikes to similarly situated jurors

who had not been the subject of a preemptory strike, citing

Miller-El v. Dretke, 545 U.S. 231 (2005), and United States v.

Barnette, 644 F.3d 192 (4th Cir. 2011).

       Bell’s argument, however, fails to recognize that he was

required,      as      a    condition         of     requesting         a     comparative-juror


                                                    6
analysis, to identify comparative jurors for the district court.

See Barnette, 644 F.3d at 205 (requiring a comparative juror

analysis where “the struck black potential jurors bore strong

similarities as well as some differences to nonblack jurors who

were permitted to serve”) (construing Miller-El, 545 U.S. at

247).     Here, Bell failed to identify a single nonstruck juror

that    would      call    into     doubt      the    reasons        proffered    by     the

government.

       Bell also contends that the government’s exercise of all of

its     seven      preemptory       challenges            against     African-Americans

“created      an   inference      of    purposeful        discrimination,”       shifting

the burden to the government to demonstrate that its reasons

were    not    a   pretext.        Regardless        of    whether    the     government’s

conduct       actually     gave    rise   to    such       an   inference,      the     court

nonetheless did call on the government to provide explanations

for    each     strike.          And,   with    respect         to   each     strike,    the

government gave race-neutral explanations, which included past

convictions,        lack    of    education,         association       with    witnesses,

demeanor, and adverse responses on juror questionnaires.                                 The

district court found the government’s explanations credible and

race-neutral, and, based on this record, we cannot find that the

district court clearly erred.




                                            7
                                            III

      Bell also contends that the district court erred in denying

his motion to suppress a statement that he made to Special Agent

Matthew E. Morlan of the ATF during an interview on July 25,

2008.    At     the   hearing       on   Bell’s       suppression      motion,    Special

Agent Morlan testified that before he conducted the interview,

he read a Miranda form to Bell line-by-line and that Bell signed

the waiver voluntarily.               After waiving his Miranda rights and

indicating that he wanted to speak with officers, Bell provided

a rundown of his narcotics dealings.                    Morlan testified that Bell

spoke lucidly and did not appear to be under the influence of

alcohol or drugs.

      Bell, however, gave a different account, suggesting that

his   Miranda     waiver      was     not   voluntary          because    he    had     used

cocaine, pills, and alcohol on the day of the interview.                               Bell

testified first that Special Agent Morlan “just slid [him] the

paper and said, ‘sign it,’ and . . . walked off.”                               On cross-

examination, however, Bell asserted that he did not remember

having the interview or signing the form because he had been

under the influence of alcohol and drugs.

      After     the        hearing,      the      district        court        found     the

government’s      witnesses      credible         and,    on    that     basis,    denied

Bell’s   motion       to    suppress.            We    have    reviewed    the        record



                                             8
carefully and cannot conclude that the district court clearly

erred in its factual finding.


                                          IV

      Finally, Bell contends that during sentencing, the district

court    improperly   applied     four     enhancements     authorized     by    the

Sentencing Guidelines.           Based on our review of the record, we

find each of Bell’s arguments unpersuasive.

      First, Bell contends that the district court should not

have designated him a career offender under U.S.S.G. § 4B1.1

because the sentences for the predicate offenses were not shown

to have been imposed within ten years of the “commencement of

the instant offense,” as required by U.S.S.G. § 4A1.2(e)(2).

The predicate offenses were Bell’s conviction on January 16,

1997, for distributing crack cocaine near a public park, and his

conviction    on   August   6,    1998,       for   possession   with   intent   to

distribute crack cocaine near a school.                  The record shows that

the     cocaine-distribution       conspiracy         alleged    in     this    case

commenced    well     within      the     ten-year      window   following       the

predicate    offenses.           Bell’s        coconspirators    in     this    case

testified to dealing drugs with Bell since 2005, and Bell’s own

statements admitted to buying cocaine as far back as 1999.                       The

district court thus did not clearly err in finding that the




                                          9
conspiracy in this case began before the ten-year window closed

on the predicate offenses.

     Bell also argues that the district court erred in applying

an enhancement for his leadership role in the conspiracy, under

U.S.S.G.   §   3B1.1(b).   He    insists    that    his     companions     were

involved in nothing but a conspiracy of “users.”              The evidence,

however, showed that Bell actively managed multiple members of

the conspiracy in the sale of both cocaine and cocaine base.

Even though the district court did not explicitly address each

of the stated Guidelines’ factors to be considered in applying

the enhancement, we readily discern from the court’s comments

that it evaluated Bell’s role within the conspiracy in light of

those factors.

     Bell next challenges the application of an obstruction-of-

justice enhancement under U.S.S.G. § 3C1.1, based on a telephone

call he made to a prospective witness.        As Bell and his attorney

were preparing for jury selection, the government provided a

list of its witnesses to Bell and his attorney, which included

the name of Tonya Kneece.        Several hours later, Special Agent

Morlan received a voicemail from Kneece, who was very upset and

crying.    Kneece   informed    Special   Agent    Morlan    that   Bell   had

called her on the telephone to say he was very angry at her.

Bell told Kneece that he had seen her name on the witness list

and that he “knew everything.”      He told her that he thought they

                                   10
were friends and then abruptly hung up.                         Kneece told Special

Agent Morlan that she was concerned for her safety.                         Bell argues

that these facts reveal “no threat by [him] to influence Kneece

and therefore, no intent to obstruct justice.”                        The enhancement,

however,    does    not     require      the    showing    of    an    actual    threat.

Intimidation or unlawful influence suffices.                          See U.S.S.G. §

3C1.1, Application Note 4(A).                  There can be little doubt that

Kneece was intimidated by the call, as she told Special Agent

Morlan that she was afraid for her safety because of it.                                We

conclude     that    this      evidence    was     sufficient         to   justify     the

district court’s finding of intimidation.

      Finally, Bell challenges the parole-violation enhancement

under U.S.S.G. § 4A1.1(d), arguing that his term of parole fixed

by any earlier sentence had expired before this conspiracy in

this case had begun.            This argument, however, is not supported

by   the   record.        On    August    6,    1998,     Bell    was      convicted    of

possession    with    intent      to     distribute       crack       cocaine    near    a

school.    He was released on parole on September 9, 2001, which

expired on June 8, 2005.              This termination date of parole came

after Bell had resumed trafficking in cocaine and cocaine base

in 2004 and 2005.           Accordingly, we conclude that the district

court did not err in applying this enhancement.

      In sum, the judgment of the district court is

                                                                                AFFIRMED.

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