Calvin Stovall and Vertís Clay appeal their sentences imposed for various drug and firearm offenses. The district court 1 sentenced Stovall to life imprisonment after he pleaded guilty to conspiracy to possess and distribute at least 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (“Count l”). 2 Clay was tried and convicted by a jury on Count 1, as well as, conspiracy to use and discharge a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count 2”) and use of a firearm to commit first-degree murder during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(j) and 1111 (“Count 4”). After the jury sentenced Clay to life imprisonment without possibility of release on Count 4, the district court imposed consecutive sentences of 40 years’ imprisonment on Count 1 and ten years’ imprisonment on Count 2. The district court allowed this 50-year sentence to run concurrently with Clay’s life sentence.
On appeal, Stovall and Clay raise issues across most of the criminal procedural spectrum, including issues related to: (1) the plea agreement, (2) severance, (3) denial of counsel, (4) sufficiency of the evidence, (5) motion to suppress, and (6) various attacks on sentencing. After careful review of all issues raised by both parties, we affirm the district court in all respects.
*924 I. Background
A. Procedural History
A federal grand jury returned a four-count indictment against Clay, Stovall, and Darryl Walker: Count 1 charged Clay, Stovall, and Walker with conspiracy to possess and distribute at least 100 kilograms of marijuana; Count 2 charged Clay, Stovall, and Walker with conspiracy to use and discharge a firearm during and in relation to a drug trafficking crime; Count 3 charged Stovall with solicitation of a crime of violence, in violation of 18 U.S.C. § 373; and Count 4 charged Clay and Walker with use of a firearm to commit first-degree murder during and in relation to a drug trafficking crime.
Darryl Walker pleaded guilty to Count 4. Walker’s sentence was held in abeyance pending resolution of Clay’s and Stovall’s cases. Prior to trial, Stovall’s attorney requested a continuance for health reasons. Because the continuance was unavoidable, the government moved to sever the trial and proceed to trial against Clay only. Over Clay’s objections, the district court granted the government’s motion to sever, and Clay’s trial commenced.
Following a month-long trial, the jury returned guilty verdicts on all counts against Clay and sentenced him to life imprisonment without possibility of parole on Count 4. The court sentenced Clay to the statutory maximum of 40 years on Count 1 and the statutory maximum of ten years on Count 2 to run concurrently with Clay’s life sentence.
Following Clay’s trial, rather than proceeding to trial alone, Stovall pleaded guilty to Count 1. Because the plea agreement did not include an agreed recommended sentence, a sentencing hearing was scheduled. After a three-day hearing, the court sentenced Stovall to life imprisonment.
B. Factual History
Stovall began distributing marijuana in Pine Bluff, Arkansas, and enlisted the help of Darryl Johnson, a lifelong friend. Stovall’s supplier was a convicted marijuana trafficker, Benito Naito-Gastelum. Stovall and Naito-Gastelum agreed to smuggle marijuana from Mexico through California to Arkansas. Stovall established a front company named “Jesse Woods Mobile Homes” with commercial trucks to transport the drugs. Johnson and Stovall would obtain the title, tags, and insurance for commercial trucks that were then used to transport the marijuana from California to Arkansas. Stovall would receive the drugs on credit and make installment payments to Naito-Gastelum.
After the enterprise’s drug sales improved, Stovall decided to steal a truckload of marijuana from his supplier. Stovall’s scheme involved stealing the marijuana from the delivery truck and representing to Naito-Gastelum that police had seized the shipment on the highway. Johnson, Stovall’s cohort, opposed the plan. Stovall proceeded with the caper nonetheless and, after stealing the truckload of drugs, abandoned the truck at a motel.
After his apparent initial success, Stovall then concocted a second plan to steal marijuana and money from Naito-Gastelum by burglarizing his stash house in Sherwood, Arkansas. Stovall and two of his accomplices broke into Naito-Gastelum’s house and stole approximately 40 pounds of marijuana and over $20,000 in currency. Stovall tried to make the burglary appear as if the police had executed a search warrant at the property by placing yellow “POLICE” tape over the entrances.
But the scheme began to unravel when Johnson called Naito-Gastelum and told him that Stovall had stolen the shipment of marijuana. Attempting a coverup, Stovall asked Johnson to disappear so that Naito- *925 Gastelum would believe that Johnson took the drugs and money. But Johnson refused and continued his communications with Naito-Gastelum, even assisting Naito-Gastelum in locating Stovall’s Pine Bluff residence. Sensing trouble from Naito-Gastelum and desiring retribution against Johnson, Stovall hired Clay to beat and rob Johnson.
At Stovall’s request, in July 2003, Clay and Walker broke into Johnson’s home and waited throughout the night for Johnson’s return. When Johnson returned early in the morning, Clay shot him in the thigh as he entered the residence. Clay and Walker then tied Johnson’s wrists to his ankles with duct tape. The two then tortured Johnson with an iron, a broom handle, and a hunting knife to force him to disclose the location of his drugs. Eventually, Clay killed Johnson by shooting him in the back of the head. Clay and Walker then loaded Johnson’s clothes and shoes, sacks of frozen meat, ecstasy tablets (more formally known as methylenedioxymethamphetamine or MDMA), a pistol, and a digital scale into Clay’s car.
Just over six months later, Walker was arrested on an unrelated matter and gave police a lengthy taped statement about his involvement in Johnson’s murder. Walker’s account was corroborated by the autopsy report, ballistics reports, the medical examiner’s report, and Clay’s telephone records.
Agents obtained a search warrant for Clay’s residence where they found Johnson’s shoes, a box of his personal possessions, and a white plastic bag of clothes. Johnson’s sister identified the items as belonging to her brother. Additionally, clothes found at the residence bore laundry tags with the name of Darryl Johnson. Based on this evidence, both Clay and Stovall were arrested and charged.
II. Discussion
We will address the issues that Stovall raises and then proceed to the issues that Clay raises.
A. Stovall — Plea Agreement
Stovall argues that the government violated the spirit of the plea agreement by seeking a sentencing enhancement for the murder of Darryl Johnson. He also asserts that the government violated the plea agreement because he pleaded guilty to Count 1, which did not include Johnson’s murder as part of the conspiracy' to distribute marijuana. We review the interpretation of a plea agreement de novo.
United States v. Parker,
Stovall’s plea agreement contained these stipulations:
5. STIPULATIONS: The United States and the defendant stipulate to the following:
A. The parties agree on the fact that Defendant Stovall conspired with individuals including Darryl Johnson, Benito Naito-Gastelum-Gastelum, Robert Ar-nett, and Nicholas Mendez-Morales to distribute and possess with intent to distribute at least 100 kilograms of marijuana. Therefore, a trial is not necessary to determine guilt or innocence as to Count lof the Fifth Superseding Indictment.
B. The parties, however, disagree about the potential sentence in this matter and specifically the United States Sentencing Guidelines enhancements that may or may not be applicable. Therefore the parties request that the Court hold a sentencing hearing for both sides to present evidence regarding the application of any guideline enhancements.
*926 In exchange for Stovall’s guilty plea, the government dismissed Counts 2 and 3 pertaining to Johnson’s murder. But Section 5B of the plea agreement reflects that the government disclosed its intent to pursue enhancements to his drug conviction. The agreement does not exclude Johnson’s murder as a potential consideration for a Guidelines enhancement at sentencing.
The record reflects that Stovall was aware of this fact at the time he signed the plea agreement. After the plea agreement was signed, the district court, when scheduling a date for sentencing, stated, “I guess it will be litigated as to whether or not Mr. Stovall was involved with Mr. Clay in the homicide that he was involved in.” Stovall’s lawyer responded, “Well, to the extent that it’s allowable.” The court then said, “I’ll allow you to object, but I may hear evidence pertaining to that. Do you understand that?” Stovall responded, “Yes sir. I understand.” This colloquy demonstrates that the court apprised Stovall that there might be sentencing ramifications for his participation in the activities leading to Johnson’s death despite the language in the plea agreement.
Moreover, although Stovall’s plea agreement does not explicitly identify Clay and Walker as part of the drug conspiracy to which Clay admitted participation, their acts in furtherance of that conspiracy are not necessarily excluded from consideration by the court at Stovall’s sentencing. The plea agreement states that “Stovall conspired with individuals including.... ” The list does not include the names of Clay or Walker but does not appear to be exhaustive and did not specifically exclude them. The agreement expressly leaves the application of enhancements for resolution by the district court following a sentencing hearing.
Stovall cites
United States v. Garcia
for the proposition that conditions may not be read into a plea agreement which would work a material change.
Unlike the appellant in Garcia, Stovall was aware that his sentence could be enhanced despite the dismissal of Count 2 and Count 3. He was even aware that he could be sentenced to life imprisonment. With regard to potential punishment, Stovall affirmed at the plea hearing, “I understand that no less than ten years and life. That’s what I understand.”
Stovall admittedly participated in the underlying drug conspiracy including the defalcation of Naito-Gastelum. Once discovered, Johnson’s duplicity, shown by his continued allegiance to Naito-Gastelum, made him a threat to that conspiracy. Johnson’s murder was foreseeable as a means of furthering the conspiracy’s illicit enterprise. The absence of a more explicit reference to Johnson’s death as a basis for a potential sentencing enhancement did not cause the government to violate Stovall’s plea agreement by later advocating for the enhancement.
See, e.g., United States v. Gamez,
B. Stovall — Severance
Stovall next argues that the district court abused its discretion by granting the government’s motion to sever. Federal Rule of Criminal Procedure 14(a) allows a court to sever a trial if either a defendant or the government can show that prejudice would result if the trials remained joined. When two or more defendants are indicted together, “there is a preference for a joint trial unless the party moving to sever can show that the benefits are outweighed by a clear likelihood of prejudice.”
United States v. Boone,
Here, the parties were properly joined and the matter was set for trial. Stovall’s attorney then requested a continuance, citing serious personal medical issues. The district, court determined that the continuance was essential and granted Stovall’s motion. Because the duration of Stovall’s counsel’s medical infirmity was uncertain, the district court did not immediately set a new trial date. Stovall was directed to provide the court with an update of his attorney’s fitness by October 1, 2007 — less than two weeks after the date of the hearing. The government then moved for a severance and requested that Clay’s trial proceed as planned. Both defendants objected. In its order granting the severance, the district court stated that “justice requires severing Defendant Stovall.” But the court did not explain how a “clear likelihood of prejudice” would occur to the government if the parties were tried together.
Boone,
Five days after the district court granted the severance motion, Stovall’s attorney received a clean bill of health from his physician. Stovall then requested that the court reconsider its motion to sever and grant Stovall a .two-day delay from the original trial date. The district court denied the motion citing the “uncertain health status” of Stovall’s attorney.
On this record, we cannot say that a clear likelihood of prejudice justifying the severance of Stovall and Clay has been shown. In short, the preference for a joint trial in this.case was not overcome,
id.,
and we are not faced with an “unusual case” in which the resulting prejudice outweighed the efficiency of a joint trial.
Al-Esawi,
In this case, the major concern was uncertain delay due to the medical condition of Stovall’s counsel. The delay proved to be minimal. In fact, only five days after the grant of severance, Stovall’s attorney represented himself to be in good health and was apparently prepared to go to trial if accommodated with a two-day delay. The district court could have waited until October 1, 2007, as it had announced, to determine the health status of Stovall’s counsel and then reset the trial date (or trial dates) accordingly. But the severance was immediately granted without a corresponding inquiry into the prejudice that would result to the government if the trial were delayed for a few additional days. Judicial economy and efficiency would have been better served by a brief continuance to allow a joint trial.
But Stovall has not demonstrated how, if at all, he was prejudiced by the court’s grant of the government’s severance motion. Even if the district court abused its discretion in granting the severance motion, Stovall has not shown that the error compromised his defense in any meaningful respect. We therefore conclude that any error on the part of the district court in granting the government’s severance motion was harmless.
See, e.g., United States v. Bostic,
C. Stovall — Denial of Counsel
Stovall also argues that he was denied counsel because evidence from Clay’s trial was submitted without adequate lead time before Stovall’s sentencing hearing. He contends that because the 24 volumes of transcripts and exhibits from Clay’s trial were introduced only one week before sentencing, he was constructively denied counsel. Stovall argues that even competent counsel could not have provided effective assistance and that prejudice should be presumed.
Stovall cites
United States v. Cronic,
*929 Stovall was represented by counsel at all phases of his prosecution. It was less than optimal to have counsel burdened with a difficult document review task prior to sentencing. Nonetheless, Stovall has made no convincing argument based on the record or cited any controlling authority that the district court’s admission of a large quantity of documentary evidence a week before his sentencing hearing constituted a complete denial of counsel.
Stovall also argues that one week to review 24 volumes from Clay’s trial constituted insufficient notice under Federal Rule of Criminal Procedure 32. He argues that this short time frame allowed him an inadequate opportunity to comment on the factual information on which his sentence was based. Stovall seems to argue that Rule 32(c)(1) was violated, citing
United States v. Nappi,
Although the government appears, as the saying goes, to have “had its cake” (severed trial) and “eaten it too” (admission of co-defendant’s trial transcript in sentencing), Stovall has fallen short in both fact and legal authority of showing that the district court committed reversible error in applying Rule 32. We conclude Stovall’s conclusory argument of inadequate notice is unavailing on this record.
D. Stovall — Sentencing
Finally, Stovall argues that his sentence violates the Due Process Clause of the Fourteenth Amendment and is substantively unreasonable. We review the district court’s interpretation of the Guidelines under a de novo standard.
United States v. Vickers,
1. Due Process
Stovall argues that applying the cross reference in U.S.S.G. § 2Dl.l(d) regarding the murder of Darryl Johnson violated his due process rights. Stovall contends that “the government avoided its burden to prove the elements of the crime they actually sought to punish, and rele
*930
gated the same to a mere sentencing factor to obtain the punishment for a murder they could not otherwise prove.” He argues that his sentence should not have been enhanced for Johnson’s murder unless the government could prove the murder beyond a reasonable doubt, or at least by clear and convincing evidence. He characterizes the application of the enhancement as the “tail wagging the dog” because the punishment for the enhancement exceeds the punishment for the underlying crime of conviction. But we have recently held that “due process never requires applying the clear and convincing evidence standard to judicial fact-finding at criminal sentencing.”
United States v. Villareal-Amarillas,
Here, the district court sentenced Stovall for a narcotics offense under § 2D1.1. Section 2Dl.l(d) contains a cross reference that is applied when a victim is killed under circumstances that would constitute murder under 18 U.S.C. § 1111. The district court, applying principles of accomplice liability from Guidelines § 1B1.3, found Stovall responsible for the Johnson murder by a preponderance of the evidence and applied the § 2Dl.l(d) cross reference. The cross reference directs the sentencing court to U.S.S.G. § 2A1.1, the Guideline section for homicide. The government contends that it did not have to prove that Stovall solicited Johnson’s murder but only prove that the murder was a reasonably foreseeable act in relation to the Stovall drug enterprise. We agree and hold that the district court’s application of § 2Dl.l(d) did not violate Stovall’s due process rights.
2. Reasonableness
Stovall makes numerous arguments attacking the overall reasonableness of his life sentence. We review the substantive reasonableness of the sentence for an abuse of discretion.
Saddler,
Essentially, Stovall asserts that the district court improperly weighed Johnson’s murder in assessing his sentence. But we have already held that the district court could consider the murder in sentencing Stovall because the murder was a reasonably foreseeable result of Stovall’s drug conspiracy.
See supra
Parts II.A. and II.D.l. The ultimate inquiry on appeal is whether the district court considered the Guidelines advisory and properly weighed the 18 U.S.C. § 3553(a) factors.
Saddler,
E. Clay — Sufficiency of the Evidence
Clay first argues that insufficient evidence exists to sustain his convictions for conspiracy to possess and distribute marijuana, conspiracy to use and discharge a firearm during and in relation to a drug trafficking crime, and use of a firearm to commit first-degree murder during and in
*931
relation to a drug trafficking crime. On a claim of sufficiency of the evidence, we “review the evidence in the light most favorable to the verdict, and reverse only if no reasonable jury could have found the appellant guilty beyond a reasonable doubt.”
United States v. Ireland,
Clay argues that he was not part of the conspiracy to distribute marijuana and that Johnson’s murder actually frustrated the conspiracy rather than furthered it. To prove conspiracy, the government must prove each of the following elements beyond a reasonable doubt: (1) the existence of a conspiracy; (2) the defendant’s awareness of the conspiracy; and (3) the defendant’s intentional decision to join the conspiracy. Id.
Clay does not argue he was not a part of a marijuana conspiracy; he merely argues that Johnson’s murder was a separate conspiracy to which he was not a member. Whether Johnson’s murder was a separate conspiracy or furthered the purpose of a single conspiracy is a question of fact to be resolved by the jury.
United States v. England,
There was also testimony presented to the jury that Clay told Walker that he was employed as an enforcer for Stovall, whom he described as a major drug dealer. In his role as enforcer, Clay purportedly ensured that all- of Stovall’s debts were collected. In carrying out his job as conspiracy enforcer, which included murdering Johnson, it is immaterial whether Clay knew all of the details of the conspiracy, so long as he knew that he was contributing to the furtherance of the conspiracy— namely, Stovall’s drug trafficking business.
See United States v. Massa,
Here, the evidence was sufficient for a reasonable jury to have found that a conspiracy existed, determined that Clay was aware of this conspiracy, and concluded that Clay joined the conspiracy to help Stovall’s drug trafficking business. Moreover, it was reasonable for the jury to believe that Johnson’s murder furthered the common purpose of the conspiracy. Therefore, we conclude that there was sufficient evidence that Clay was a part of the conspiracy.
F. Clay — Motion to Suppress
Clay next argues that the district court erred in denying his motion to suppress because the search of his home violated, the Fourth Amendment. In reviewing a denial of a motion to suppress, the factual findings are reviewed for clear error and the legal conclusions are reviewed de novo.
United States v. Taylor,
Officers received a warrant to search Clay’s residence for controlled substances, contraband, or other evidence related to the conspiracy. Nine months earlier, Drug Enforcement Administration Special Agent Karen Fehrenbach interviewed Darryl Johnson’s sister after John *932 son was murdered. Johnson’s sister described to Agent Fehrenbach certain items of clothing that were missing from Johnson’s house after the murder. Upon searching Clay’s house, Fehrenbach found certain items associated with Johnson and described by Johnson’s sister, including a black velour jumpsuit, blue alligator shoes, a tennis shoe box container, and several leather jackets.
Clay argues that his Fourth Amendment rights were violated because these items were -not specifically listed in the search warrant. If an item not particularly described in the warrant is seized, it must fall within an exception to the Fourth Amendment’s warrant requirement.
United States v. Criswell,
To qualify under the plain view exception, the government must prove that (1) the item is in plain view; (2) the officer is lawfully located where he may view the object; and (3) the incriminating nature of the evidence is “immediately apparent.”
Horton v. California,
The parties dispute only the incriminating nature of the evidence. Agent Fehrenbach testified that she immediately recognized that the items observed in Clay’s residence belonged to the murder victim, explaining that some of the items “jumped out” at her based on her 19 years of experience and her extensive interview with the victim’s sister. The facts known to Fehrenbach would justify her belief that the items were contraband.
Clay also argues that the officers rummaged through all of the occupant’s belongings without limitation, ignoring the warrant’s dictates. He relies on
United States v. Clark,
The circumstances of this case are distinguishable from Clark. The officers searching Clay’s residence neither conducted an unbounded exploratory search nor recorded serial numbers of random items in the home seeking incriminating evidence of potential crimes. Furthermore, the incriminating nature of the items seized was. immediately apparent to Agent Fehrenbach, who instantly connected the items to Johnson’s homicide. We hold that the seizure of these items during the warrant search did not violate the Fourth Amendment and that the district court properly denied the motion to suppress.
*933 G. Clay — Sentencing
Finally, Clay argues that because he was convicted of Count 2 under 18 U.S.C. § 924(o), he was erroneously sentenced under 18 U.S.C. § 924(c). The government did not reply to this argument in its brief. Clay also challenges the overall reasonableness of his 40-year sentence. We will address each sentencing issue in turn.
1. Section 92Jp(o)
Count 2 charged Clay with conspiracy to use and discharge a firearm during and in relation to a drug trafficking crime, in violation of § 924(o). But Clay was sentenced under § 924(c), which provides, in relevant part, that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” Conversely, § 924(o) does not contain any restriction on concurrent sentencing. See § 924(o) (stating that a “person who conspires to commit an offense under subsection (c) shall be imprisoned for not more than 20 years”). Relying on § 924(c), the district court sentenced Clay to 40 years’ imprisonment on Count 1, to run consecutively to Clay’s ten-year prison sentence on Count 2.
Only the Sixth Circuit has addressed this issue. In
United States v. Stubbs,
the defendant pleaded guilty to § 924(o) but was sentenced under § 924(c).
The
Stubbs
case is factually analogous and legally persuasive. Accordingly, we conclude that the district court erred in sentencing Clay pursuant to § 924(c) because § 924(c) charges a completely different offense than § 924(o) — the offense of conviction. But we also conclude that reversal is unwarranted. In addition to the above sentences, Clay was sentenced to life imprisonment without the possibility of release on Count 4 — using a firearm to commit first-degree murder during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(j) and 1111. We have already upheld the sufficiency of the evidence on this count.
See supra
Part II.E. Because Clay’s life without parole sentence stands as to Count 4, any sentencing error on Counts 1 and 2 constitutes harmless error.
See, e.g., United States v. Blade,
2. Reasonableness
Clay also argues that his 40-year sentence imposed on Count 1 — conspiracy to possess with intent to distribute marijuana — was unreasonable. He cites
United States v. Gillmore,
In granting a variance, the district court only has to take into account the § 3553(a) factors and recognize that the Guidelines are not mandatory.
Gall,
III. Conclusion
For the foregoing reasons, we affirm the district court’s decision in all respects.
Notes
. Stovall was charged with solicitation of a crime of violence, in violation of 18 U.S.C. § 373 (“Count 3”). After Stovall pleaded guilty to Count 1, Counts 2 and 3 were dismissed.
. Federal Rule of Criminal Procedure 32(e)(2) provides that "[t]he probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period.”
.
Stubbs
was overruled on a separate sentencing issue in
United States v. Helton,