United States v. Williams

tеsting drugs at issue. She KEENAN, Before GREGORY and advised the court that the “defendant re- Judges, Circuit and JAMES C. DEVER to sign stipulation.” fuses J.A. 11. III, United Judge States District for the attorney Williams’ defense then asked the Carolina, Eastern District of North sitting any problem court if it “had[ ] with [her] by designation. signing objection over the of the defendant?” J.A. 11. The court by published Vacated and remanded attorney allowed the sign defense opinion. Judge GREGORY wrote the jury. and it was read to the majority opinion, Judge in which joined. trial, Judge During KEENAN DEVER wrote a government pre- separate opinion concurring theory in According sented its of the crime. dissenting part. government, of heroin Carolina, drug producers burg, from in Pana- South examined and an- shipped Airport International alyzed ma to the Louisville the contents of the ad- intercepted by it was Kentucky Hutchinson, where dressed to Sabrina there, if it had law enforcement. From 5, Spartanburg, Westover Drive No. intercepted, package the would not been Carolina, by South 29306 and seized shipped to Sabrina Hutchinson’s have been Murphy Eric of Customs and Border Spartanburg, in South Carolina house protection Kentucky, Louisville that the it, would retrieve where Victor Jackson package was seized on October the 3rd the to Williams. and then deliver sorting facility of 2007 from the UPS Williams, according government, Ram- and submitted to forensic chemist the heroin thereafter. planned distribute pey Vaughn under file ICE No. ], that forensic GV13HE08GV0C1[ theory government support In of its Rampey Vaughn chemist who has been of pieces introduced several evidence. qualified expert analysis as an in the First, States introduced the controlled substances in both state and testimony Murphy of Officer Eric from the federal courts within the District of Agency, and Border Protection Customs South Carolina determined that this— alleged heroin ar- who how that contained a total caught from Panama and his atten- rived heroin, weight grams of con- Murphy subsequently tion. Officer 98.61— schedule controlled substance. We do positive ducted a field test which was for Collins, stipulate, signed by so Lora at- heroin. defendant, torney for the and Assistant Second, Jackson, Victor who was Attorney Regan United States A. Pen- codefendant, indicted testified Williams’ Greenville, dleton in South Carolina. by that he was asked Williams to retrieve exchange During for $500. government J.A. 40-41. The then intro- it that cross examination was revealed testimony by duced Officer Brian Duncan. initially police about his Jackson lied He testified he dressed as a UPS identity likely and would have his sentence delivery man and delivered the package to testimony. reduced based on his Ms. Hutchinson’s house in order to ensure Following testimony, govern package. Victor Jackson retrieve the this published stipulation by reading Special Agent ment Next Paul Criswell testified it 1: alleged as to the content of an confession plan in which he detailed Randolph States America v. to retrieve and distribute heroin. Red, Williams also known Criminal cross-examination, pointed out the defense 7:08-25, No the Government and counsel despite nature of the custodial defendant, Williams, Randolph for the interrogation, no written Williams’ state- being stipulate that counsel Lora Collins Furthermore, ment was ever taken. following: that on October the 11th questions defense raised about whether Rampey of the 2007 lieutenant Beth [sic] Williams was under the influence of medi- Vaughn a certified forensic chemist with interrogation. cation at the time of the Spartanburg County Sheriffs Office laboratory Spartan- government Investigator also called forensic located signed copy stipula- transcript language stipulation. 1. The written and of the rely we on the tion has been lost so Spe- Matt Hutchins who verified much of sentencing guidelines Williams’ were Agent testimony. prepared cial relying Criswell’s on a determination that he intended to grams 98.61 of her- testify called on defense oin. disposing objec- After of some other Among things, his own behalf. other he tions, imposed the court a sentence of 78 that was under the testified he influence of which top months was at the of the guide- pain killer Percocet at the time of his range. timely line filed a notice interrogation by Investigator Hutchins and appeal. Special Agent Criswell. He also contra- any dicted earlier statements regarding II. allegedly admissions he made to law en- This Court reviews rul evidentiary Finally, government forcement. called ings implicating constitutional claims de Sabrina Hutchinson who indicated that she Ali, novo. United States v. Abu 528 F.3d did not know had never spoken — cert, (4th 210, Cir.2008), denied, Williams. U.S.-, 1312, 173 584, 129 S.Ct. L.Ed.2d charge jury, its the court indi- (2009) (citing Rivera, United States v. “[wjhen cated that attorneys on both (4th 562, Cir.2005)). F.3d sides stipulate agree or to the existence of If we conclude that there is a con must, a fact ... you unless otherwise in- violation, stitutional then evidentiary rul structed, accept as evidence ings subject of this kind are to harmless regard proved.” that fact as J.A. 97. error Erroneously review. admitted evi required court listed the elements as dence is if reviewing harmless a court is (1) agreement “an existed between two or able to determine that “the constitutional persons more possess with the intent to error was beyond harmless a reasonable (2) heroin”; distribute “defendant knew of Ali, doubt.” United States v. Abu (3) conspiracy”; “defendant know- (4th 210, Cir.2008) (citing Chap ingly voluntarily became a оf the California, man v. 386 U.S. conspiracy.” J.A. 102. 824, 17 (1967)). S.Ct. L.Ed.2d 705 During deliberation, their jury re- questions

turned several to the court in- III. cluding: “What amount drugs it does A. take qualify for distribution as opposed parties Both agree that the dis self-use?” replied J.A. 109. The court trict court by abused its discretion by admit indicating jury that the should use com- ting the stipulation into evidence over mon sense but that the more drugs there objection Williams’ are, because it violated his likely the more it is that there is right to confront witnesses under intent the Sixth to distribute. The court then re- Amendment: trieved stipulation, marked it as the court’s exhibit no. and sent it back with Admitting statements deemed reliable jury. Later, gave the court jury by judge a fundamentally at odds with the so-called Allen charge to encourage right sure, of confrontation. To be them to reach a verdict and allowed them goal Clause’s ultimate tois ensure go night. home for the evidence, The next morn- reliability of proce- but it is a ing, returned a guilty verdict. dural rather than a guaran- substantive also found that commands, Williams had tee. It not that evidence be intended to grams rеliable, 98.61 of heroin. reliability but that be assessed and fundamental and cannot be by testing personal manner: in particular a cert, denied, counsel”), waived 523 U.S. crucible of cross-examination. 1088, 118 140 L.Ed.2d 695 S.Ct. Washington, 541 U.S. Crawford Sowders, (1998); 5 F.3d Carter v. (2004). L.Ed.2d 177 124 S.Ct. (6th Cir.1993) (“there be evidence in must cites to a case from Though party neither a waiv- support” the record to defendant’s Circuit, cite rele- parties both the Fourth right to confron- er of Sixth Amendment from of this Circuit vant cases outside valid). it tation for to be a defendant have held that where which of a objects to the introduction require is inclined to While this Court trial, a introduced at is nonetheless that defendants make clear waiver court abuses its discretion. See district right, their Sixth Amendment the Court Hannigan, e.g. Hawkins v. question need not reach this here since Cir.1999). both counsel and the district court were majority A of our sister circuits have objected aware that to the intro- attorney can that “a defendant’s held stipulation. We can find no duction right Amendment waive his client’s Sixth reasoning uphold law that would case does not dissent long so as the defendant right by a waiver of Sixth Amendment decision, long so as attorney’s from his objec- counsel a defendant’s defense over attorney’s that the decision it can be said tion. a part trial tactic or legitimate was a Therefore, we find that the district v. strategy.” trial United States prudent accepted stipula it court erred when (7th Cir.2001) 411, Cooper, 243 F.3d objection and violated tion over Williams’ (citation omitted); Janosky v. see also St. right.2 his Amendment Sixth (1st Cir.2010)

Amand, 39, 48 594 F.3d Gamba, (same); v. 541 F.3d United States B. (9th Cir.2008) (“defense counsel constitutional may waive an accused’s Next we must determine whether strategy”); a of trial rights a is entitled to a new trial as (2d Plitman, v. 194 F.3d States of law. To make this determina matter Cir.1999) Reveles, (same); v. United States tion, must consider whether the this Court (5th Cir.1999) n. 6 190 F.3d harmless. An constitutional violation was (same). Hawkins, (same); 185 F.3d at 1155 if “the ben error will be deemed harmless However, eficiary of ... constitutional error [the] circuits have found that other beyond a reasonable doubt required prove for an [can] a defendant’s waiver is complained not con a Amendmеnt that the error of did attorney to waive Sixth Delo, Chap to the verdict obtained.” tribute right. See Clemmons Cir.1997) (“the California, 386 U.S. law seems to man (1967). 824, 17 L.Ed.2d 705 is S.Ct. right be clear that the confrontation upon jury determination that the defen- may grounds for a rest stipulation 2. A also be right jury. every to a A guilty violation of a defendant’s element of crime dant is right Fifth and has a under beyond defendant charged, a reason- with which he is jury to have a determine However, Sixth Amendments doubt.”) Court need not able this beyond every ele- guilt a reasonable doubt on right whether or not Williams' reach charged offense. United States v. ment of we find as a matter of trial was violated since 509-10, Gaudin, 115 S.Ct. 515 U.S. right Sixth Amendment law that Defendant's (1995) (United L.Ed.2d 444 violated. "requires criminal convictions Constitution argues that the important introduction of determining whether First, stipulation was not harmless. Williams had an intent to distribute heroin. argues pieces he that several of evidence Moreover, stipulation was marked as presented at trial would not have been exhibit, giving court’s it an air of relia- stipulation. for the admissible but He alsо bility higher than other presented evidence argues that stipula- the court’s use of the jury. jury’s When an “answer to [a] ‍‌​​​​‌‌​‌‌​‌​‌​​​‌‌​​​‌​‌‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌​‌‌‍jury’s question tion to answer about question supplied by judge” [is] the trial it defining intent highly distribute was stamped is “thus imprimatur prejudicial. government argues that the court.” Ofray-Cam- States v. the error was harmless because the over- (1st Cir.2008) pos, (finding whelming uncontested evidence was suffi- judge’s that a indication that codefendants prove guilt. cient to unduly are incarcerated prejudiced verdict). Therefore stipulation was es- We find that harm from the jury’s sential to the finding that Williams beyond extended far identifying guilty of intent to distribute. the substance the package. The harm from the falls into two broad We find that this prejudice alone is First, categories. styled while stipu as a enough require that the conviction be lation, it essentially established element vacated. aAs result of the prejudice clear of the crime. government, having stemming stipulation, from the this Court already against secured a conviction Jack concludes that it pervasive created preju- son, custody, established the chain of dice government cannot come identity verified the and weight of the proving close to that it was “harmless be- substance in package, very the little yond a reasonable doubt.” Arizona v. prove. left to Fulminante, 279, 307-08, 499 U.S. Second, (1991). prejudice S.Ct. also derives from L.Ed.2d 302 the Therefore, jury using stipulation the the Court finds that the determine convic- whether had an tion is intent to vacated and this distrib- matter is remand- ute heroin. jury’s question ed to the district during court for proceed- further deliberation ings. “What amount of drugs does it qualify take to for distribution op- as above, For the reasons we posed to self-use?” indicates that jury the VACATEAND REMAND

was unresolved as to govern- whether the ment had met its burden of proof on the DEVER, Judge, District concurring in

first element of the crime. an effort to part dissenting and in part: clarify standard, the the district court told jury the larger “the the quantity of I agree with majority the that the dis- drugs increases the drugs inference that trict court violated the Confrontation possessed were with the intent to distrib- Clause of the Sixth Amendment at trial in usе,” ute opposed personal and then accepting stipulation that the gave jury copy stipulation. of the seized at the airport Louisville contained J.A. 112. The stipulation only was the grams 98.61 respectfully heroin. I dis- evidence of the amount of heroin. sent, however, from majority’s conclu- Here, it is not difficult to identify the sion that the error requires a new trial. harm stipulation. caused Notably, The dis- did not connect trict court handed the to the Williams to the seized package inculpate or thereby and indicated that it was in charged any in beyond charged conspiracy elements of the light the record Having reviewed way. States, doubt: reasonable 527 U.S. Neder v. United (1999), L.Ed.2d 35 Dela- S.Ct. (1) heroin with agreement Arsdall, 673, 106 475 U.S. ware Van existed the intent to distribute between (1986), 89 L.Ed.2d S.Ct. (2) persons; two or more [Williams] af- conspiracy, I would law of substantive (3) conspiracy; knew I describe the evidence firm the conviction. knowingly voluntarily be- [Williams] great- at trial at somewhat and the events conspiracy. come of the part majority in order to length than er Reid, See United States beyond it “clear a reason- explain why Cir.2008). theory of Williams’s would have doubt that rational able not know of simple: the case was he did the er- guilty the defendant absent found alleged conspiracy knowingly Neder, 527 U.S. S.Ct. ror.” voluntarily alleged become of the con- Moreover, because Confronta- spiracy. calcula- apply tion Clause does weight sentencing, also drug tion of hearing morning At a on the pre-trial sentence. would affirm the trial, day of counsel for the the first Unit- stipu- and counsel for ed States

I. testimony govern- lated that The one-count indictment this case ment’s forensic chemist would show that airport states: seized at the Louisville grams on October contained 98.61 beginning That at a time unknown to the of heroin. J.A. 40-41. Defense coun- Jury, beginning but at least on or Grand agreed stipulate sel the seized 25, 2007, and continu- September about grams contained 98.61 of heroin 10, 2007, in the ing through October strategy as a trial because theo- Williams’s of South Carolina and else- District ry of the case was he did not know where, Defеndants, RANDOLPH alleged conspiracy about the and was not “Red”; WILLIAMS, TIMOTHY a/k/a therefore, alleged conspiracy; Jackson; BYRD, RAY Oneill Victor a/k/a “really weight heroin doesn’t HUTCHINSON, T. and SABRINA Id. at 11. Over Williams’s ob- matter.” combine, knowingly intentionally and did jection, accepted stip- the district court together have conspire agree and and ulation. Id. at 40-41. understanding tacit with each other and and persons, various other both known 3, 2008, trial September On Williams’s jury, knowing- grand unknown to the Agent 17. Eric Mur- commenced. Id. at intentionally, unlawfully possess ly, Protec- phy, of U.S. Customs and Border quantity with intent to distribute a tion, Murphy first. Id. at 19-26. testified heroin, a Schedule controlled sub- ar- explained packages that he examined stance, Title in violation of United riving into the United States from outside 841(a)(1) Code, Sections States assigned and was to the the United States 841(b)(1)(C); in Airport Louisville International Louis- in of Title States All violation United ville, Kentucky. id. at 19-20. See On Code, 846. Section Murphy was alerted to October 7. J.A. shipped via Parcel package Service (“UPS”) Panama, from which U.S. Cus- go decided to to trial and to Williams country drug high as a risk for prove make the the three toms views 21-22, 25. ecutor smuggling. package Id. at would make a motion to reduce his Windex, in cooperation. listed a return address Panama sentence due to his Id. at 30. Hutchinson, and was addressed Sabrina Jackson then about conspir- testified Drive, Spartanburg, 142 Westover South acy. Jackson Williams and at 22-23. Carolina. Id. agreement he reached an in the fall of Murphy package, identified and it 2007. Specifically, Id. 30. 22; evidence. Id. at was received into asked package Jackson to receive a ad- Murphy Govt. Ex. No. 1. testified that on dressed to Sabrina Hutchinson at Hutchin- opened he October son’s house. Id. Jackson knew that envelope and found an inside. J.A. 22. package drugs. contained Id. at 31-32. envelope, Inside the he discovered a bag Once the package, Jackson received Jack- containing a substance field tested agreed son call pick up to Williams to positive as heroin. Id. 23-25. Murphy package. In exchange Id. for re- drug smugglers also testified that com- ceiving the package, agreed monly in used the manner which the sub- pay Jackson Id. Jackson told $500. stance was to conceal packaged controlled (who Hutchinson said Jackson was “a little at 24. substances. See id. The package of slow”) to lookout be on the for a package exhibit, heroin itself was admitted as an and to let Jackson know when it arrived. Murphy showed of heroin Id. at 32. id.; jury. See Govt. Ex. No. 2. In early October Williams called heroin, Murphy After gave seized he Jackson and said that package (including the package of her- in “intercepted” Kentucky. been Id. oin) to Immigration U.S. and Customs En- days About three phone or four after that (“ICE”) agents forcement in Louisville. call, a van UPS arrived at Hutchinson’s agents Louisville, J.A. 25-26. The ICE inside, residence. Id. at 33. Jackson was turn, provided the seized package to window, peered out the and saw the UPS agents ICE in South Carolina. Id. van. immediately Jackson called Next, Victor Jackson testified. Id. at Williams and told him what was happen- Jackson testified that he had ing. Id. Williams told Jackson to speak to (Jackson) known Williams since he was 13 driver, sign UPS but not to any- or 14 years old Jackson was now thing. Id. 28. Jackson and Williams were Williams, While phone on the Jack- friends and Jackson would sometimes opened son the door. Id. The UPS driver drive places and do errands for (who really was Lieutenant Brian Duncan him. Id. Jackson had not employed been Spartanburg County Sheriffs De- years, for about four or five lived with his partment) if asked Sabrina Hutchinson girlfriend Sabrina Hutchinson at her resi- there, yes. lived and said Jackson Id. at Spartanburg, dence in and was addicted to 34-35. The UPS driver then handed the crack cocaine. Id. 29. Jackson also package to During Jackson. Id. 34. his admitted that he been convicted of examination, direct Jackson identified Gov- distributing crack cocaine. Id. ernment package Exhibit No. as the he that pleaded Jackson admitted he guilty received. Id. to to with the intent to quantity accepted distribute a of heroin After charged package, Jackson in the indictment. Id. 29-30. other Jackson offiсers exited UPS van and also hoped admitted that he pros- that the arrested Jackson. Id. Jackson agreed to Duncan cooperate called Williams. Id. at 35- then identified Government Ex- and however, Williams, did answer his No. 1 package hibit as the that he deliv- phone. Id. ered to on Jackson October Id. Duncan also identified Government Exhib- examination, On Jackson admitted cross it package No. as the of heroin contained that he a crack cocaine addict and had inside Government Exhibit No. 1. Id. of CDs and DVDs to bootleg copies sold Williams. Id. 37-38. examination, On cross Duncan admitted then read the prosecutor that not at the Williams was residence at 40^11. jury. Id. Before when package Duncan delivered the con- prosecutor stipulation, read the the court taining heroin to Id. at 46. Jackson. that “a ... instructed the Agent Paul then testified. Criswell Id. attorneys is an agreement between explained at 46-62. that he Criswell you accept having each which can side agent assigned Greenville, an ICE proven.” at 40. The stipulation bеen Id. South Carolina. at 47. Id. On October prosecutor stated that and defense Louisville, agent ICE in Kentucky qualified, expert counsel that a stipulate contacted him and told him that ICE had pack- chemist had examined the forensic intercepted a of heroin in package Louis- sorting age facility from the UPS on seized Hutchinson, ville destined for Sabrina package October contained Drive, Spartanburg, Westover South Car- heroin, grams 98.61 a schedule I con- olina. Id. at 47-48. Criswell then contact- at 40-41. trolled substance. County ed the Spartanburg Sheriffs Office Next, Brian Lieutenant Duncan testi- and Spartanburg City Department Police 9, 2007, fied. Id. at 42-46. On October delivery to assist with a controlled Special Agent Paul Criswell and ICE noti- package. Id. “a package fied Duncan that had been Criswell identified Government Exhibit Kentucky found in that contained heroin.” No. 1 as the package he received from Id. at 43. Criswell ICE asked Duncan office. Id. at Louisville ICE up dress to resemble UPS driver and Criswell also identified Government Exhib- delivery make a controlled 142 West- it No. 2 as “the heroin was contained over in Spartanburg. Drive Id. Duncan within the received [he] from Thus, agreed. on October Dun- Louisville office.” Id. at 49. [the] posed can as a driver and UPS delivered to Jackson. Id. at 42-43. role explained Criswell then that he in played delivery, the controlled Jack- when Duncan testified that Jackson an- arrest, son’s and Hutchins’s interview of door, talking swered the Jackson was on Hutchinson and Jackson. Id. Criswell also phone. at 44. Duncan handed the presented that he information Id. at to Jackson. 43. Criswell from the investigation U.S. Attor- and Investigator Matt Hutchins of the Office, ney’s grand jury federal in- Spartanburg County Sheriffs Office then Jackson, Williams, dicted they Hutchinson exited van in which had been January 8, on Id. at 49-50. 2008. After hiding, Jackson. at and arrested See id. indictment, Hutchins, arrest Duncan, 44. federal warrants and Criswell then cooperate. January were issued. Id. at 50. On asked if he would Id. Jackson Hutchins, Duncan, Criswell, and an agreed Jackson and tried call Williams. Williams, however, agent ATF to arrest at Id. 44-45. did not went Williams Id.; 2. Williams’s id. at answer. Id. 45. residence. Government package up Criswell identified Exhibit had been held in Kentucky. rights No. as a statement and waiver Id. (“waiver form”). rights form Id. at 50- intent, As for Williams’s Williams told 51; 4. explained Govt. Ex. Criswell No. Criswell that once received the package he that he read the waiver form to Williams Jackson, from he intended to sell the her- on January 2008. J.A. 51-52. Williams oin contained in the package. Id. appeared rights, to understand his did not Williams also that explained Cool had intoxicated, appear agreed to waive his heroin, “fronted” him the which meant that rights, the waiver form. signed Id. at Williams obtained the heroin on credit and 52-53; Govt. Ex. No. 4. Criswell and would proceeds use some of the of his signed Hutchins also the waiver form as pay heroin sales to Id. at Cool.

witnesses. Id. examination, On cross Criswell admitted promise Criswell any- did not Williams that Williams gathered bottles of med- thing Rather, or threaten him. J.A. 53. upon ication at his residence his arrest. freely Williams voluntarily gave Id. at 60. Criswell also admitted that agents regarding a statement his involve- Cooehie is incarcerated within the Bureau ment in shipped the heroin from Panama of Prisons and that Williams had told Cris- to Hutchinson’s residence. Id. at 53-54. well that prison Cool was in in Panama. Criswell, According to Williams said that Id. at 61. Criswell also admitted that he he contacted Jackson about bringing her- had not interviewed either Cooehie or oin into the United States. Id. at 54. Cool. Id. explained Williams that he had been in Next, Investigator Matt Hutchins testi- contact with a man nicknamed “Cool” in fied. Id. 62-67. Hutchins identified Panama and that Cool sent the Government No. 4 Exhibit as the waiver (Criswell containing the heroin. Id. then form that given to Williams. Id. at 63. identified Cool as James Alexander Smith Hutchins testified that Criswell read the III and that explained authorities had is- waiver form to Williams and that Hutchins sued a federal warrant in arrest the East- signed the waiver as a form witness. Id. ern District York against of New Smith Hutchins appeared that Williams 55.) III. Id. at Williams also told Criswell rights, understand his that neither that he knew man another nicknamed him, Hutchins nor Criswell threatened Smith, “Cooehie” James Alexander a/k/a signed form, Williams the waiver and that Jr., that Cooehie had been guilty found neither promised Hutchins nor Criswell heroin, to distribute and that him anything. Id. аt Hutchins also previously Williams had obtained heroin testified that “very Williams was well from Cooehie. Id. aware going of what was on” during the Williams then told Criswell that Jackson interview, that his information was “de- was supposed to receive a package ad- coherent,” tailed and and Williams said dressed to Sabrina Hutchinson and deliv- approached he Jackson about receiv- ered to her residence. at 55-56. ing a package that would contain heroin. arrived, When Jackson was to Id. at 64-65. call Williams. In exchange, agreed pay approximately examination, Jackson On cross $500. Hutchins testified Id. at 56. also told Criswell that present he was when Williams was while the that, transit from Pan- arrested and leaving before his resi- ama, dence, Cool called Williams and said that the gathered bottles of medi- convictions, including using heroin. Id. jail. Id. at 65. On take to cation knowing examination, Hutchins testified at also admitted 68. Williams redirect not allow Williams 1981 and ad- approximately did since that the officers Jackson Rather, at 66. any Id. him medication. sometimes drove ingest mitted that Jackson of medi- the bottles gathered a did not have places Williams because ‍‌​​​​‌‌​‌‌​‌​‌​​​‌‌​​​‌​‌‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌​‌‌‍Williams gave the cation, bag, in a placed them at 68-69. As for his driver’s license. Id. at Id. 66-67. Jackson, to the officers. bag relationship with more recent turn, officers, bag of medi- gave in would sell testified that Jackson Williams jail and told intake at cation and DVDs. Id. bootleg copies him CDs medication, the that, if he needed Williams at 69. have to administer

jail nurse would his medical then testified about Williams Id. at 65-67. medication. that in explained Id. at 70. He condition. Next, testified. Id. Hutchinson Sabrina por- a November he had October or in Hutchinson at 86-91. early colon removed. Id. tion of his boy- her living with she was October bed, in at home January he was Westover Victor Jackson friend an arrest war- arrived with when officers at 86-87. Id. Spartanburg. Drive in Williams, Jackson, naming rant if she would let Hutchinson asked Jackson charged conspiracy. Id. Hutchinson arrived. She package know if a Jackson took him to at 70-72. Before the officers Hutchin- at 87-88. to do so. Id. agreed ingested thаt he jail, testified Williams was she did not know she son testified of the offi- medicine front prescription and did not know receiving heroin part of also testified Id. at 70-71. Williams cers. Id. at asking her to do. what Jackson sleepy. him Id. that the medicine makes at 72. only she com- testified that Hutchinson his memo- then testified about Williams at 88. grade. Id. the seventh pleted jail. at 73. the events at the Id. ry of being that after testified Hutchinson also that the officers advised admitted Williams case, her to lawyer got her in this indicted signed that he rights him his records.” get some “take some tests the waiver signing form. Id. After waiver Later, Hutchinson said that Id. at 88-89. jail form, him from the officers then took dismissed prosecutor for an inter- department sheriffs against her. Id. charge view. Id. 73-74. examination, Hutchinson ad- On cross with Williams that she never talked mitted interview, told the During his Williams Id. at 90. receiving package. a about knew a man nicknamed officers that he Rather, about a spoke to her Jackson name was and that Cool’s real “Cool” agreed to tell Jackson and she iden- then Id. at 75-77. Williams Smith. Finally, arrived. Id. when Id. photogrаphic line-up. in a tified Cool did not know testified that she she he told explained that when then Williams never met drugs and had used Jackson pack- to receive agreeing about officers on the to Williams spoken Cool, talking about he was age from only knew She Id. at 90-91. phone. ten received from Cool that he a friend of Jackson. conver- 77. As for his Id. at years earlier. accepting about with Jackson sations presented one witness: The defense only that he testified package, Williams admit- defendant. bootleg CDs and about spoke with Jackson arrests and multiple drug ted that he Finally, Williams that DVDs. Id. testified then stressed the need to use common years, evaluating he had not heroin for about ten sense in used the evidence. Id. The years, prosecutor rejected that he had married for been ten Williams’s claim that going and that he had been church during post- to officers twisted his words his every interview, Sunday. Id. 78. arrest but somehow came up with the names and Coochie Cool. Id. Fi- examination, On cross testified nally, prosecutor pack- mentioned the that he had addicted to heroin in been heroin, age of the stipulation that but had been clean since heroin, grams contained 98.61 of January As for Id. at 79-80. his testimony Jackson’s how the about con- officers, testi- interview with spiracy being, came into and Williams’s being fied that to he confessed confession concerning to conspiracy due threats from officers. to possess with the to intent distribute a however, admitted, Id. at 80. Williams quantity of heroin. Id. at 5-6. The prose- that phone indicating he had seen records then jury cutor asked the to convict 44 phone phone calls between Jackson’s Id. Williams. at 6. phone during his period time October to October response, 2007. Id. defense counsel returned to at 81-82. Williams also admitted that he the defense theme: Williams had no was phone on the with knowledge Jackson when the of the alleged conspiracy and delivery officers made the controlled joined to never it. In support, defense coun- Jackson. Id. at 82. sel stated: “The stipulated defense has there’s heroin that package because it lawyers The closing then delivered their was not heroin that Mr. Williams knew arguments. Williams, United States v. about.” Id. at 6. Defense counsel then 7:08-cr-00025-HMH-1, 171], No. [D.E. reminded the the package was (D.S.C. 2008). Sept. argument Each addressed Sabrina Hutchinson and that very prosecutor argued succinct. The Hutchinson testified that she never talked beyond the United States proven had to Williams about accepting package for a reasonable doubt that Williams and Rather, him. Id. Hutchinson said that conspired Jackson with in accept Jackson asked her a package tent to a quantity distribute of heroin. Id. that Jackson told Hutchinson that In support, prosecutor pack cited the package belonged to Williams. Id. at age from Panama containing heroin and Defense counsel questioned then Jackson’s cited Williams’s confession and his admis credibility in light guilty plea his sion that he on phone Jack charged conspiracy hope and his for a son during the controlled delivery sentence reduction. Id. Defense counsel package of prose heroin. Id. at 3-4. The also noted that Jackson Williams had cutor in poor conceded that Williams was time, each long known other a but addict, health and a former heroin but relationship involved selling Jackson boot- urged to not sympathy use leg CDs and DVDs to Williams. excuse Williams’s behavior. Id. at prosecutor noted Jack Defense counsel then noted that gov- son using did not mind Hutchinson to facil ernment failed to verify who sent pack- itate the conspiracy and also the 44 age cited of heroin from Panama and failed to phone calls between Williams and Jackson either interview Coochie or Cool. 7- during period time confession, October and 8. forAs Williams’s defense October 2007. Id. at 5. prosecutor pressured counsel that he felt necessarily hear ics does not mean that the they what wanted to the officers tell actually alleged confession to distribute his defendant intended them. and that many years hand, may of before the concerned events On other a defendant 2007. Id. Dеfense counsel then October have intended to distribute narcotics guilty. to Williams not jury the find possess large asked if he not even did amounts then dismissed for Id. jury The that, the Having larger of them. said day. the quantity drugs the of increases the in- drugs possessed with ference that were 4, 2008, the jury returned September On to opposed the intent to distribute as jury the and district court instructed the personal use. that, guilty, “the to prove the required prove to] [was Government Id. beyond a

following elements reasonable Second, asked, jury the “What is the (1) agreement “that an existed doubt”: drugs?” value of the The court street persons two or more to between responded: testimony “There was no (2) heroin”; with the intent distribute to that effect. And we don’t evidence add conspira- “that knew of the the defendant you go jury to the record once to the (3) knowingly cy”; and “that the defendant room.” Id. at 113. voluntarily part a the con- and became asked, Finally, jury “Why the were The court spiracy.” J.A. 102. district as phone records submitted evidence variety a of other standard instruc- gave Id. can them?” The and we see court to con- proof, tions on the burden of how jury that instructed the records ac- “[t]he evidence, conspira- the law of sider the and tually were not admitted evidence and See id. cy. at 94-107. the we cannot add to record. can tell deliberations, jury beginning After the the you only ques- that the record is that three sent a note to the court and asked phone was asked the tion about records First, asked, jury questions. ‘What Id. The agreed.” defendant court it take to for drugs qualify amount of does stated: “I marked a also as Court’s Exhib- to self-use?” Id. opposed as distribution gone you It have anyway[;] should it[.] repeated portion at 109. The court then you being are sent which is charge: its original record.” Id. jury then you only should consider [W]hile deliberating. Id. resumed case, you in the are permitted evidence lunch, jury stating: After sent a note from to draw such reasonable inferences judge’s charge need to “We hear testimony you exhibits feel jury again.” Id. at 115. The court then experi- justified light are of common Id. jury. copy chаrge of its sent words, you may In other make ence. which deductions reach conclusions Later, we jury get asked: “Can you reason and common sense lead copy testimony? of Williams’ We also es- draw from the facts have been copy like a testimo- [Jackson’s] would testimony tablished and evidence Id. The court instructed ny.” jury in the case. p.m. testimony it could get 3:30 at 112. It also stated: transcribed, going to take a “[fit’s but may go your jury Basically, you determining what are is while. You back room.” Id. at 116. The drugs personal use continued whether the were Later, deliberating. sent an- purpose of for the of distribution. guilty possession large quantity stating: of a narcot- other note “We have decision, attorney’s one not We cannot reach dissent from his guilty. [consen- and so at 117. sus].” Id long as it can be said that the attorney’s legitimate decision was a trial tactic.” p.m., court approximately At 5:00 Plitman, 59, United States v. 194 F.3d 63- gave charge. an Allen See id. at 118-20. (2d Cir.1999) omitted).1 (quotation 64 The at jury The resumed deliberations. Id. for rationale this waiver rule is that a jury “well p.m. 120-21. At 5:30 the asked: ‘We considering developed body need to clarification on get protects of case law defen- on a and evidence based reasonable doubt from constitutionally dants defective ac- 121. court common sense.” Id. at 64; attorneys,” tions of their at Id. see jury then instructed the on reasonable Washington, 668, v. Strickland 466 U.S. doubt common See 121- sense. id. at 2052, 687, (1984), 104 S.Ct. 80 L.Ed.2d 674 22. and that “must proper courts accord weight to the role of defense counsel in jury later sent another note: “To- fashioning we the strategy, morrow can review other officers’ an overall trial includ- testimony?” in- The court ing one the involving right waiver of to jury get structed the that “I will court the confrontation, the for defendant’s best ad- reporter tonight to all prepare of that tes- Plitman, vantage.” 194 F.3d at 64. I also you timony you so can have it read to agree that the Sixth Circuit has held that tomorrow.” Id. at 124. right personal the confrontation is and that defendant must waive it. See Carter v. September

On the resumed Sowders, (6th 975, Cir.1993).2 deliberating at 5 9:00 a.m. Id. at F.3d 981 126. Short- ly p.m., after 1:00 a ver- reached Hеre, objected to defense dict guilty. and found defendant stipulate counsel’s tactical decision to 126-28. forensic testimony. 11, chemist’s J.A. Nonetheless, 40-41. the district court ac

II. cepted stipulation, thereby allowing de agree majority fense counsel to waive right Williams’s Fourth Circuit has not decided whether Thus, confront the forensic chemist. un what under circumstances defense der the overwhelming standard ma may counsel waive a defendant’s Sixth jority circuits or under the Sixth Circuit right Amendment to confrontation. I also standard, district court violated agree First, majority with the right Williams’s Sixth Amendment to con Second, Fifth, Seventh, Ninth, Tenth front forensic chemist trial about published Circuits have held in opinions See, testimony. e.g., her Melendez-Diaz v. “may defense counsel his waive — Massachusetts, -, U.S. 129 client’s Sixth S.Ct. right Amendment of confron- 2527, 2531-42, by stipulating (2009); tation 314 admission of L.Ed.2d evidence, Plitman, long so as the defendant does not F.3d Amand, 39, Janosky ‍‌​​​​‌‌​‌‌​‌​‌​​​‌‌​​​‌​‌‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌​‌‌‍446, (11th Cir.2009) 1. See v. Fed.Appx. St. 47- (per F.3d 447-48 (1st Cir.2010); curiam) Cooper, (unpublished). United States v. (7th Cir.2001); v. Hawkins (10th Hannigan, dicta, 185 F.3d 1154-56 Cir. Eighth Circuit has stated that 1999); Stephens, United States v. 609 F.2d right personal “the of confrontation is (5th 1980); 232-33 Cir. v. States fundamental and cannot be waived coun- Goldstein, (9th Delo, 532 F.2d 1314-15 Cir. v. sel.” Clemmons Gonzales, 1976); 1997). accord United States Cir. Arsdall, analyzed a the Court Confronta- III. and stated: tion Clause error course, a is entitled to a defendant Of an error harmless Whether such See, trial, e.g., perfect trial. Van fair particular depends upon case a host of 1431; Arsdall, 681, 106 S.Ct. 475 U.S. at factors, readily all accessible review- Hasting, U.S. ing These include the courts. factors 508-09, 76 L.Ed.2d 96 103 S.Ct. importance [erroneously admitted (1983). Moreover, the harmless-error doc- case, prosecution’s in the evidence] applies the Confrontation Clause trine [erroneously admitted evi- whether See, during trial. error that occurred cumulative, presence the or dence] was Melendez-Diaz, at n. 129 S.Ct. 2542 e.g., corroborating or absence of evidence Arsdall, 681, 14; at 475 U.S. 106 S.Ct. Van [erroneously the admitted contradicting Banks, 1431; v. 482 F.3d United States points, material the extent on evidence] (4th Cir.2007); 733, 741-42 States permit- of cross-examination otherwise (4th Cir.2006); Khan, 477, 461 496 v. ted, and, course, strength the of overall Iskander, 232, 407 F.3d the case. prosecution’s of Cir.2005). The harmless-error Arsdall, 684, 475 U.S. 106 S.Ct. Van “principle that the preserves the doctrine to of a criminal trial is purpose central Here, erroneously the admitted evidence of the question the factual defen- decide stipulation was the which identified the innocence, promotes or guilt dant’s in the seized at the substance process by criminal respect for the public airport as heroin and stated that Louisville fairness the focusing underlying on the of weighed grams. stipulation it The 98.61 virtually than rather on the inevitable trial not seized did connect Williams to the error.” Arizona v. of immaterial presence in inculpate Williams the or Fulminante, 111 S.Ct. U.S. charged any way. in Unlike conspiracy (1991) 1246, (quotation 113 L.Ed.2d 302 the majority, the do believe omitted). reviewing the erroneous “When (alone stipulation or in combination [evidence], appellate of the court admission instructions) jury established the court’s simply ... reviews the remainder of the first of the offense. More- element against to deter- evidence the defendant over, I an each Van believe examination of of [evi- mine whether the admission ration- Arsdall that “a factor demonstrates beyond was harmless reasonable dence] guilty jury [Williams] al would have found Smith, Id.-, doubt.” Sherman of the absent admission [erroneous (4th Cir.1996) (en 1134, banc); see Neder, stipulation].” U.S. 52(a). this conducting In Fed.R.Crim.P. S.Ct. 1827. review, reviewing court must examine First, error determining in whether the Neder, record.” 527 U.S. at the “whole case, important prosecution’s in the then ask: 1827. The court must S.Ct. of the one focus on elements must beyond “is it clear a reasonable doubt Arsdall, charged Van 475 U.S. crime. See jury have found the defen- a rational would In prove to 106 S.Ct. order guilty absent the error?” dant possess guilty 119 S.Ct. 1827. of her quantity with intent to distribute 841(a), §§ harmless-error doctrine oin violation U.S.C. applying case, 841(b)(1)(C), government Supreme in this Court’s Van (1) agreement possess prove “that decision instructive. In Van Arsdall Second, with intent to distribute existed even if the was im- [heroin] (2) persons; between two or more case, portant prosecutor’s the stipu- (3) conspiracy; knew оf the [Williams] lation was cumulative to the first ele- voluntarily knowingly [Williams] be Arsdall, ment offense. Van Reid, conspiracy.” came a of this Independent U.S. at 106 S.Ct. 1431. F.3d at 315. did not have to stipulation, had before it: upon specific quantity decide heroin. (1) testimony concerning Jackson’s his role See id.3 (2) conspiracy; in the testimony Criswell’s impacted only could have concerning partici- Williams’s confession to jury’s as to first finding element: (3) pating conspiracy; in the Hutchins’s “an agreement whether [heroin] testimony concerning Williams’s confession with the intent to distribute existed be- (4) participating conspiracy; persons.” prove tween two or more Id. To testimony that Williams’s there were 44 element, government this need not phone phone calls between his and Jack- prove procurement the actual even the phone son’s from October 1 to October existence of heroin. See United States v. (5) 2007; and, Williams’s corroboration of Yearwood, 220, 518 F.3d 225-26 Cir. that testimony Jackson’s he was on the (“[T]he 2008) gravamen of the crime [of phone with package Jackson when the was conspiracy] agreement is an to a effectuate Notably, delivered. Williams’s confession omitted)). criminal act.” (quotation If included a statement of his intent to dis- agreed Jackson had with Williams to re- procured tribute and that drugs he had the quantity distribution, ceive a heroin of for on See Henley, credit. United States v. requested Williams had heroin from 509, (6th Cir.2004) (purchase 360 514 F.3d Cool, any shipment the actual contents of by drugs arrangement of credit suggests from Cool irrelevant to would be the exis- distribute). with conspiracy intent to The conspiracy. tence of the If Cool had actu- promise of to simple $500 Jackson for the ally shipped heroin, soda baking instead of receiving act of a package of heroin at agreement between and Jack- Hutchinson’s calling residence Thus, son would be unaffected.4 the stipu- Williams indicates a with the lation important was not or essential to intent to distribute. See United States v. prove the of an agreement existence to Dolan, (4th Cir.1976). 1219, F.2d 1221 544 possess a quantity heroin with thе in- The 44 phone calls between Jackson and Arsdall, tent to distribute. See Van 475 (i.e., 684, ten-day period Williams in 1431; Banks, October U.S. at 106 S.Ct. 482 (erroneous 10, 2007) 1 742 to October conspira- F.3d at indicate a admission of unnec- Yearwood, essary cy. evidence that violated Confronta- See 518 F.3d at 226. Fur- harmless). tion thermore, Clause found Williams testified that he no 3. district beyond court had the penalty make find- crease the crime ing specific drug maximum, to a weight. prescribed as See statutory J.A. the defen- light charged offense right by dant's to a trial was not violated. Reid, See, 466, indictment and there no Apprendi was need to e.g., Jersey, v. New 530 U.S. drug weight 490, submit the jury. issue of (2000); S.Ct. 147 L.Ed.2d 435 See, Reid, 310, 314-17; e.g., Reid, 314-17; 523 F.3d at Unit- 523 F.3d at Cannady, ed States v. Johnson, F.3d 647-49 (4th Cir.1995); see (4th Cir.2002); 841(b)(1)(C). § 21 U.S.C. Fuller, also United States v. 162 F.3d (4th Cir.1998). majority 259-61 does not stipulation question. Because the Majority Op. is not essential reach this See establish first element did not in- n. 2. heroin, being no oin in the sent from and there was evi- as longer used Thus, Hutchinson, personal anyone. use dence of Panama addressed Sabrina independent stipulation, Louisville, there was seized in and deliverеd Jack- proof agreement of an overwhelming Therefore, independent stipu- son. intent heroin to distribute. lation, overwhelmingly the evidence estab- Simply was cumulative put, lishes that the substance in the first element. was heroin. Third, stipulation’s statement stipulation’s As for the reference to the the seized contained heroin was weighing grams, agree heroin 98.61 by overwhelming corroborated and uncon- there no that the her- other evidence independent troverted evidence. Van precisely oin weighed grams. 98.61 Cf. Arsdall, 475 U.S. at 106 S.Ct. 1431. Arsdall, Van 475 U.S. 106 S.Ct. Specifically, Murphy testified However, was not on a substance was heroin based field only “the evidence of the amount of her- test. J.A. 23-25. Such “field test” testi- Majority Op. oin.” at 134. I ac- While mony competent to demonstrate that knowledge difference between See, the substance seized heroin. ‍‌​​​​‌‌​‌‌​‌​‌​​​‌‌​​​‌​‌‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌​‌‌‍“amount,” “weight” and we should focus on Scott, 136, 142 e.g., Sherman v. 62 F.3d n. precise weight figure whether that would (5th Cir.1995); Paiva, United States Neder, jury. be to rational material (1st Cir.1989); see also 18-19, 1827; U.S. at 119 S.Ct. Van Ars- 447-48; Gonzales, Fed.Appx. Unit- dall, 684, 106 475 U.S. at S.Ct. 1431. In Blotchеr, 92 ed States v. F.3d 1996 view, my precise weight figure the would (4th Cir.1996) (per WL *5-7 Rather, jury. not material to a rational be decision). curiam) table In (unpublished probative piece the evidence to a more of that, addition, Murphy testified based on jury would be the amount of the rational training experience, packaging his and the that three identified substance witnesses package of the in the substance seized jury. as and to After heroin showed the smugglers pack- with how consistent all, jurors just testimony do not hear dur- aged illegal Murphy’s narcotics. J.A. 24. ing They physical a trial. also see the testimony package and the of heroin were introduced, that such the evidence objection, into received evidence without package of heroin introduced as Govern- Murphy and then showed of package Here, ment Exhibit No. in this case. 21-25; jury. heroin to the See id. at see jury repeatedly that the package of heroin 45, 92; id. at No. 2. also Govt. Ex. Dun- independent saw of the package can that the of also testified her- evidence— оf the amount of heroin oin contained in Exhibit Government No. —both and that the amount was intended for dis- 2 was contained Ex- inside Government See, e.g., tribution. United States v. Tria- 1, explained hibit the controlled deliv- No. na, (10th Cir.2007); F.3d Jackson, again ery showed the Wright, United States v. heroin Id. at 44- package jury. (4th Cir.1997); 1112-16 United States Furthermore,

45. Criswell his Richards, (5th Cir.1981); 638 F.2d investigation, role in the described Dolan, Moreover, at 1221-22. confession, 544 F.2d and again Williams’s showed jurors the court instructed the package jury. heroin 47-49; Thus, not dispositive Ex. amount of heroin was Govt. No. three wit- drugs heroin determination of whether the were package nesses showed the and identified the of her- for distribution. J.A. 112-13. intended son jurors court instructed the obtained the heroin for also personal reason common they should use their use that there was no evidence (a to evaluate the evidence and testi sense that either Jackson crack cocaine ad addition, dict) mony they heard. had ever used heroin. The Hutchinson determining intent would fo rational only elements that will con two credibility dispute among on Jack cus test at his new trial are the same two (who in the son to his role con testified trial elements he contested his first (who spiracy), agents testified about nothing and which to do (who confession), and Williams Williams’s stipulation: he knew of the con whether agents threatened him testified that spiracy alleged in the indictment and during him his inter and misunderstood knowingly voluntarily he whether be view, key but who also made admissions Neder, conspiracy. came a of the Cf. during testimony). his trial A rational 19-20, (finding U.S. at S.Ct. jury’s analysis credibility dispute error where harmless defendant did not impacted by not would be element); dispute omitted United States v. stipulation did inculpate because the Lovern, 700-01 Cir. Williams and was unrelated to the credibil 2002) (same). See, Neder, ity dispute. e.g., 527 U.S. at Fifth, ample opportunity Williams had 18-19, 1827; Arsdall, Van 119 S.Ct. Duncan, Murphy, cross examine and Cris- 684, 106 U.S. S.Ct. stipula- well on the in the facts contained Fourth, any record lacks evidence tion, identity specifically the of the sub- contradicting stipulation. See Van stance in the its weight. He Arsdall, 475 U.S. at 106 S.Ct. 1431. never did so. Williams’s at- example, For theory Williams’s entire of thе case was torney forgo chose to cross examination of that he know did not about the Williams, Murphy, objection from without alleged Jackson, among the indictment despite Murphy’s testimony that the sub- Hutchinson, and others “known and un- positive stance field tested heroin and grand jury,” known to the and that he did was packaged drug smug- consistent with join conspiracy alleged in the in- Moreover, gling. the record reflects that Therefore, dictment. never con- Williams stipulation rejected, had the been and had tended that the package did not contain testified, the forensic chemist the cross heroin or “raised evidence sufficient to examination of the chemist would have Neder, support contrary finding.” a 527 been that Murphy identical of —non- 19, 1827; Arsdall, at U.S. 119 S.Ct. Van existent. 684, 1431; at 475 U.S. 106 S.Ct. Schneble Finally, strength pros- the overall Florida, 427, 432, 1056, v. U.S. 405 92 S.Ct. ecution’s case a harm- finding dictates (1972); 31 L.Ed.2d 340 United States v. Arsdall, Ali, (4th lessness. See 210, Van 475 at Abu U.S. 528 F.3d 256-57 Cir. 2008). Further, government 106 S.Ct. 1431. “[T]he Williams never contended presented a substantial amount of evidence personal that the heroin was intended for Banks, use, tending to inculpate [Williams].” opposed distribution and there- was, 482 The stipulation fore “never raised F.3d evidence sufficient to Neder, most, contrary “duplicative of a support finding.” wealth of other 527 Indeed, presented by prosecution. U.S. at 119 evidence” S.Ct. 1827. Khan, 496; Williams he 461 testified that had not F.3d v. used United States (4th Smith, Cir.2006); heroin since 2000 or 2001. Williams also F.3d did not Mackey, contend Jackson or Hutchin- States United v. F.3d 841(a)(1) (4th Cir.1997); §§ States v. U.S.C. and 846 is 474-75 841(b)(1)(C). § months. Blevins, See U.S.C. At 1262-63 Cir. sentencing 1992). hearing, Williams’s Further, the two elements object drug weight did not of 98.61 contested —whether he knew of grams present any evidence to show alleged the indictment conspiracy that such an amount was not properly knowingly voluntarily he and whether 134-47, 160, attributed him. See J.A. became a —had 2D1.1(c)(8) (2008). 171-73; § U.S.S.G. stipulation. A ra- nothing to do with cf. light accountability Williams’s not have considered the tional would grams 98.61 of heroin and U.S.S.G. determining whether 2D1.1(c)(8), § presentence report proved beyond those elements government (“PSR”) provided for a base offense level doubt. reasonable 165; J.A. See U.S.S.G. strongly factor indi Each Van Arsdall (2008). 2D1.1(c)(8) Thus, § the distriсt beyond that the error was harmless cates advisory guide court calculated Williams’s Having doubt. reviewed the reasonable range line as 63 months to 78 months. governing record under the stan whole 3553(a) considering § After the 18 U.S.C. dard, I am convinced that the district factors, the district court sentenced concerning error court’s imprisonment. Williams to 78 months’ beyond a was harmless reasonable doubt. J.A. 148-49. Neder, 1827; 18-20, 119 S.Ct. U.S. argues that the district court Lovern, 700-01; see 293 F.3d at rely- violated the Confrontation Clause in Perry, 1995 WL ing stipulated weight on the of the heroin (4th Cir.1995) curiam) (per at *4 at sentencing and the error was not harm- decision) (Defendant (unpublished table however, argument, less. Williams’s fails present any evidence to cast “failed because Confrontation Clause did not stipulation’s validity.... doubt on sentencing considering bar the court from stipulation at issue in this case was stipulated weight of the heroin. Cf. guilt. not an admission of [Defendant] Pliler, Fry 551 U.S. S.Ct. questioned never the bank was (2007) (“[I]t 2321, 168 L.Ed.2d 16 would deposits robbed or whether its were feder not matter which harmless error standard ally challenged by The solе issue insured. if no employed underlying there were Thus, identity.”). one of the defense was error.”). Fourth constitutional As the Cir- affirm the respectfully dissent would explained repeatedly, cuit “because the has conviction. apply Sixth Amendment does not advisory process calculating sentence IV. Guidelines, Sentencing] under the [U.S. sentencing, statu- [any] evidentiary As for Williams’s Sixth Amendment-based tory imprisonment apply process maximum term of do not to that restrictions Dean, with intent to dis- either.” United States v. Cir.2010).5 (4th Thus, the quantity of heroin in violation of 174 district tribute riam) principle (unpublished); v. Sulli 5. The is so well established that it United States van, (4th Cir.2007) appears unpublished Fed.Appx. in countless decisions. See, Martinez, curiam) (per (unpublished); v. e.g., v. 274 Fed. United States United States (4th Cir.2008) curiam) (per Levesque, Fed.Appx. Cir. Appx. Debreus, 2007) curiam) (per (unpublished); United (unpublished); United States v. LaChance, (4th Cir.2007) Fed.Appx. (per Fed.Appx. cu court did not violate Confrontation stipu- relied on the properly

Clause and drug weight grams of 98.61

lated 32(i)(3).

PSR. See Fed.R.Crim.P. Accord- ‍‌​​​​‌‌​‌‌​‌​‌​​​‌‌​​​‌​‌‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌​‌‌‍sentencing, was no error at

ingly, there

and I also would affirm the sentence. CLINTON, ARKANSAS,

CITY OF

Plaintiff-Appellant, CORPORATION, PRIDE

PILGRIM’S

Defendant-Appellee.

No. 10-10039. Appeals, States Court

Fifth Circuit.

Dec. (4th Cir.2007) curiam) (per Cir.2006) curiam) (unpublished); (per (unpub- Newbold, lished); Cole, United Fed.Appx. States v. Fed.Appx. (4th Cir.2007) curiam) (4th Cir.2006) curiam) (per (unpub- (per (unpub- lished); Statts, lished). Fed.Appx. States v.

Case Details

Case Name: United States v. Williams

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 21, 2011

Citation: 632 F.3d 129

Docket Number: 09-4049

Court Abbreviation: 4th Cir.