Affirmed in part, vacated and remanded in part, by published opinion. Judge Wilkinson wrote the opinion, in which Judge Luttig and Judge Traxler joined.
Federal informants wearing recording devices twice purchased crack cocaine from appellant Sandako M. Brandon. At Brandon’s trial, the government played the tape-recorded conversations, and it also provided transcripts to the jury as an aid in listening to the recordings. Brandon was subsequently convicted on charges of drug conspiracy and distribution of crack cocaine. Brandon did not object to the transcripts during the trial, but he now claims that the trial court should have independently reviewed the transcripts before they were shown to the jury. Because the transcripts were accurate and the jury was properly instructed on their use, we find Brandon’s argument without merit, and we affirm Brandon’s convictions. However, because the district court wrongly discounted Brandon’s prior convictions in determining whether Brandon was a career offender, we vacate and remand for resentencing.
I.
On March 8, 2002, Travis S. Knight, a paid informant working for the Federal Bureau of Investigation (FBI), met with a cocaine dealer named Joe Lee White in an attempt to purchase a “big eight,” or four and one-half ounces of crack cocaine. Knight was wearing a recording device that tape-recorded the course of events between himself and White. White first told Knight that Brandon could supply the cocaine, and then White called Brandon, who agreed tо the sale. Knight and White drove to Brandon’s residence, and White went into Brandon’s home and came out with a package of crack cocaine. Knight weighed the cocaine, found that it was short of the expected four and one-half ounces, and negotiated a price cut. Knight counted out $3,750 and handed it to White, who carried the money into Brandon’s house. Knight and Whitе then left Brandon’s house, and Knight subsequently delivered the recording device, the package of crack cocaine, and $150 in leftover “buy” money to FBI Special Agent John Spears.
On March 19, 2002, Knight returned to Brandon’s house and spoke with Brandon himself. Knight again wore a recording device that tape-recorded their conversation. When Knight asked Brandon about obtaining another “big eight,” Brandon quoted a price of “35” and told Knight to “holler at Joe.” Knight understood Brandon to mean both that the price would be $3,500, and that Knight would again have to go through Joe Lee White in order to purchase the cocaine. As he had before, Knight delivered the recording device to Special Agent Spears.
At Brandon’s subsequent trial for conspiracy to distribute cocainе base and distribution of cocaine base, the government introduced the recordings of Knight’s con
Once the March 8 tape had been admitted into evidence, the government requested permission to play the recording and to distribute copies of the transcriрt to the jury, so that jury members could read along as they listened to Knight and White’s drug deal. Brandon’s counsel lodged no objection, and the district court allowed the government to pass out copies of the transcript to the jury.
The government next introduced its tape-recording of Knight’s conversation with Brandon on March 19. Knight identified the voices on the recording as his and Brandon’s, and Sрecial Agent Spears again testified that the recording fairly and accurately represented the events of March 19. As with the March 8 tape, the March 19' tape was admitted into evidence without objection from Brandon’s counsel. And once more, when the government sought permission to play the March 19 tape and distribute copies of a transcript to the jury, Brandon’s counsel did not object and the government’s request was granted.
Finally, at the close of evidence in the case, the government moved that the transcripts of the March 8 and March 19 tapes be admitted into evidence. Brandon’s counsel offered no objection. As to the transcripts, the district court cautioned the jury that
with respect to the transcript, that’s not evidence, but you’re to consider the tape itself as evidence — the tape recording as evidence, but the transcript is merely used to allow you to follow along with ... what the recording was indicating. Your recollection of the tape itself or the tape recording is what controls in this case to the extent there’s any difference between what you may havе read on the transcript and what you heard on the tape. •
The court thus made clear to the jurors that the tape recording was controlling, and that the transcript was intended only as an aid in listening to the recording. Moreover, the court repeated this warning during its instructions to the jury, and it did not allow the transcripts to he sent back into the jury room while the jury was deliberating.
II
Despitе.the district court’s admirable caution, Brandon contends that the court erred in allowing use of the transcripts of the March 8 and March 19 tapes. Brandon does not actually claim that the transcripts were inaccurate in any respect. Rather, Brandon claims simply that the district court should have reviewed the transcripts and certified their accuracy— on the cоurt’s own initiative, no less, since Brandon never objected at trial to the transcripts nor asked the court to undertake any sort of review. Because Brandon never objected during his trial to the transcripts’ use, we review his claim for plain error.
See United States v. Olano,
To begin with, we have squarely rejected Brandon’s claim before. In
United States v. Collazo,
On appeal, we held that the district court had acted within its discretion in permitting use of the disputed transcripts. Id. at 1203. We found it important that, as in the present case, federal agents had testified that the transcripts were- authentic; defense counsel had been free to object to inaccuracies in the transcripts or to challenge the manner in which the transcripts were prepared; and the jury had been cautioned that the tapes rather than the transcripts were controlling in the event of any discrepancies. Id. at 1203-04. In light of these safeguards, the jury’s use of the -transcripts had not actually prejudiced the Collazo defendants, who hаd never attempted to challenge the transcripts’ accuracy. Id. at 1203.
Brandon’s case is even less persuasive than that of the
Collazo
defendants: at least in
Collazo,
the defendants offered some vague objection during the trial to use of the transcripts, while Brandon raisés his objection for the first time on appeal. As the First Circuit has put it, “[w]e will not require trial judges to screen transcripts and to make objections where the parties themselves have raised none; wе leave such legal advocacy to counsel.”
United States v. DeLeon,
Moreover, even were we to assume that the district court’s failure to review the transcripts of the March 8 and 19 tape recordings was somehow plainly erroneous, Brandon could not plausibly contend that the error “affect[ed] substantial rights.”
Olano,
In addition, as a result of the district court’s cautionary instructions, the jury was made well aware that the transcripts were intended solely as an aid in listening to the March 8 and 19 tapes. As the district court explained to the jury: “Your recollection of the tape itself or the tape recording is whаt controls in this case to the extent there’s any difference between what you may have read on the transcript and what you heard on the tape.” The
III.
The government has cross-appealed, claiming that the district court should have sentenced Brandon as a career offender pursuant to § 4Bl.l(a) of the Sentencing Guidelines. Section 4Bl.l(a) states:
A defendant is a career offender if
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offеnse.
U.S. Sentencing Guidelines Manual § 4B1.1(a) (2003). It is undisputed that Brandon was at least eighteen years old when he was convicted before the district court of two controlled substance offenses, namely, drug conspiracy and distribution of cocaine base. And both parties agree that Brandon had one prior drug-related conviction from December 1998. Thus the only question is whether Brandоn has a second prior qualifying conviction, and here the parties disagree over whether we may count Brandon’s conviction in July 1997 for common law robbery.
In March 1997, Brandon was arrested and charged with both felony unlawful possession of a firearm and felony possession of crack cocaine with the intent to distribute. In April, based on a separate incident, Brandon wаs charged with felony maintenance of a dwelling for the sale of crack cocaine. And then in May, based on yet a third unrelated incident, Brandon was charged with felony common law robbery. Brandon pled guilty to these four counts in July 1997, in return for which the State of North Carolina dismissed five additional drug-related felony counts and four additional drug-related misdemeanor counts. The four offenses to which Brandon had pled guilty were consolidated for sentencing, and Brandon received a suspended sentence, thirty days’ imprisonment, and two years’ probation.
However, Brandon was made to pay a North Carolina drug tax prior to his July 1997 conviction for possession of crack cocaine. We have held, although the North Carolina courts have rejеcted the notion, that the North Carolina drug tax constitutes a criminal penalty for purposes of the Double Jeopardy Clause.
See Lynn v. West,
There are several difficulties with Brandon’s argument. Brandon pled guilty to four offenses in July 1997: robbery, possession of cocaine, maintenance of a crack-house, and unlawful possession, of a firearm. Lynn, to the extent it precludes anything, precludes only a penalty enhancement for Brandon’s possession of cocaine. Brandon has never sought relief from the North Carolina courts on the other three counts; and his convictions .on those counts have been neither reversed, nor vacated, nor declared constitutionally invalid by any, court, state or federal. See U.S. Sentencing Guidelines Manual § 4A1.2, cmt. n.6 (2003) (barring collateral attacks on prior convictions except as otherwise provided for by law). While Lynn may require us to discount a drug conviction that the State of North Carolina continues to recognize as valid, it does not require us to discount other state convictions that do not еven arguably violate federal law.
Brandon asserts, however, that- -there are not multiple convictions that can be disaggregated. According to Brandon, since the state court entered only a single
judgment
in July 1997, the entire proceeding constitutes only a single
conviction
(and an invalid one after
Lynn).
We think that this misinterprets the term “conviction” in the Sentencing Guidelines. In
Deal v. United States,
In
Deal,
the govеrnment claimed that the term “conviction” in the Act meant the finding of guilt by a judge or jury as to a particular offense; thus each finding of guilt on the second through sixth counts was a “subsequent conviction” that triggered the enhanced penalty.
See id.
at 131,
The Court agreed with the government, concluding that the Act’s use of the term
Similarly here, while Brandon’s July 1997 adjudication resulted in a single judgment of conviction, that judgment encapsulated multiple findings of guilt as to a handful of separate offenses spread out over the course of months. Each of those distinct findings of guilt, stemming from a separate criminal act, is best understood as a “conviction” for purposes of the career offender sentencing guideline.
See, e.g., United States v. Couch,
The district court therefore erred in not sentencing Brandon as a career offender. The career offender guideline is intended to punish more strictly those defendants who have previously committed at least two violent or drug-related сrimes. There is no question that Brandon robbed someone in May 1997, and that he possessed drugs in December 1998. Brandon’s status as a career offender cannot rest on whether the North Carolina courts, for purposes of judicial efficiency, consolidated either of those valid prosecutions with an arguably invalid one.
IV.
Brandon’s claim that the district court should have indepеndently reviewed the transcripts of the government’s audio recordings is without merit. However, the government correctly contends that Brandon should have been sentenced as a career offender. The judgment of the district court is therefore
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
Notes
. The government only points to Brandon's robbery conviction as the second conviction necessary to sentence Brandon as a career offender. The government has not argued that, and thus we do not decide whether, Brandon’s conviction for maintenance of a
. The Guidelines do define the term "two prior felony convictions” as it is used in § 4B1.1(a). According to the Guidelines,'
[t]he term "two prior felony convictions” means
(1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense ..., and
(2) the sentences for at least two of the aforementioned felony convictions are counted separately under[§§ 4A1.1 and 4A1.2 of the Guidelines].
U.S. Sentencing Guidelines Manual § 4B1.2(c) (2003). This definition is unillu-minating, though, because the very question is whether Brandon has sustained convictions that may be counted for purposes of § 4B1.2(c)(1). Brandon concedes that if his prior convictions may be counted, the sentences for those convictions would be counted separately for purposes of § 4B1.2(c)(2).