PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROLANDO STOCKTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
ROLANDO STOCKTON,
Defendant-Appellee.

No. 02-4093

No. 02-4139

Appeals from the United States District Court

for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CR-99-352-MJG)
Argued: September 26, 2003
Decided: November 17, 2003
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed in part, reversed in part, and remanded with instructions by

published opinion. Judge Williams wrote the opinion, in which Judge
Traxler and Judge King joined.

UNITED STATES v. STOCKTON

COUNSEL
ARGUED: G. Godwin Oyewole, Washington, D.C., for Appellant.
James G. Warwick, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Andrea L. Smith, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

OPINION
WILLIAMS, Circuit Judge:
Rolando Stockton appeals his convictions for drug conspiracy and
for firearms-related offenses committed in connection with that conspiracy. Stockton argues that the evidence presented at trial was insufficient to support the jurys guilty verdict on each of the counts of
conviction, that the district court committed plain error in failing to
give the jury a "multiple conspiracies" instruction, and that prosecutorial misconduct during the trial effectively denied him his right to
a fair trial. The Government cross-appeals the district courts decision
to depart downward from the prescribed sentence range based on the
alleged over-representativeness of the career offender enhancement.
For the reasons set forth below, we affirm the convictions, but reverse
the sentence, and remand the case for re-sentencing with instructions
to impose a sentence within the range prescribed by the Sentencing
Guidelines.
I.
On April 17, 2001, a federal grand jury sitting in the District of
Maryland returned a five-count Fifth Superseding Indictment (indictment) charging Rolando Stockton with various offenses related to his
alleged participation in a heroin trafficking conspiracy operating in
the Park Heights neighborhood of Baltimore, Maryland. In count one
of the indictment, the Government charged Stockton with conspiracy
to distribute, and conspiracy to possess with intent to distribute, one
kilogram or more of heroin from 1994 to April 2000, in violation of
21 U.S.C.A. 846 (West 1999). In support of this conspiracy charge,

UNITED STATES v. STOCKTON

the Government alleged that the members of the conspiracy used violence to enforce discipline within the conspiracy and used violence to
keep those outside the conspiracy from interfering with the conspiracys operations. One of the alleged overt acts of the conspiracy was
the attempted murder of Ricky Ricardo Jones on May 13, 1999. That
attempt resulted in the shooting of Clinton Williams. In counts two
through five of the indictment, the Government charged Stockton
with four firearms violations stemming from the events of May 13,
1999, specifically, use of a firearm against Jones during and in relation to a drug trafficking crime in violation of 18 U.S.C.A. 924(c)
(West 2000) (count two); use of a firearm against Clinton Williams
during and in relation to a drug trafficking crime, also in violation of
924(c) (count three); possession of a firearm by a convicted felon
in violation of 18 U.S.C.A. 922(g)(1) (West 2000) (count four); and
possession of ammunition by a convicted felon, also in violation of
922(g)(1). Stockton entered a plea of not guilty, and a trial by jury
ensued.
During the trial, the Government presented voluminous evidence
respecting the existence of the Park Heights heroin trafficking conspiracy and Stocktons role therein. The evidence included testimony
from the police officers who had investigated the conspiracy, individuals involved in the street-level operations of the conspiracy, and two
of the top-level members of the conspiracy, Antonio Hayes and Elijah
Jacobs. Collectively, these witnesses described a criminal enterprise
that established a market for the distribution of heroin in the mid1990s, and ruthlessly protected that market through 2001 by frequently using violence to dispose of competitors and transgressors.
Hayes and Jacobs both testified that Stockton was an active member
of the conspiracy, both in 1994 and in 1999. Stockton was absent
from the conspiracy between those years because of his incarceration
resulting from a state conviction.
Evidence at trial similarly supported the Governments charges
respecting the assault on Ricky Ricardo Jones and Clinton Williams
on May 13, 1999. Particularly damaging to the defense was the testimony of Williams, an eyewitness to the assault. Williams testified
that, on that date, he gave Jones a ride into the Park Heights neighborhood. While in Park Heights, he stopped in an alley to let Jones out
of the car. Jones got out of the car and left the immediate vicinity.

UNITED STATES v. STOCKTON

Williams remained in the car, and after a short period of time, Stockton approached the car and asked Williams why he was in the neighborhood and why he was with Jones. Williams testified that, before
he could answer, Stockton spotted Jones, an argument ensued, and
Stockton pulled a gun. Upon seeing the gun, Williams ducked down
and attempted to flee down the alley in his car. As he was fleeing,
Williams heard gunfire, and soon realized that he had been shot in the
right arm. Antonio Hayes corroborated Williamss testimony by noting that, on May 13, 1999, Stover Stockton Rolandos brother and
fellow member of the conspiracy asked Hayes for a gun because
Stover had given his gun to Rolando. Hayes also explained that Jones
was targeted because he was selling drugs in the neighborhood without the conspiracys permission.
Stockton testified in his own defense and generally denied an association with the Park Heights conspiracy, either in 1994 or 1999.
Regarding the events of May 13, 1999, Stockton admitted being in the
general area where the shooting took place but claimed that he was
not the gunman. Rather, Stockton explained, he had acted as a peacemaker and tried to calm Jones, who, according to Stockton, was upset
because his cousin had been assaulted. Stockton testified that, after
speaking with Jones, Jones gave him a hug, and then Stockton walked
away toward the house of Tasha Gray, Stocktons girlfriend and the
mother of one of his children. As Stockton was walking away, he
heard gun shots and then ran toward Grays house. Stockton also testified that he had never met Jones before May 13, 1999.
During the cross-examination of Stockton, the Government pressed
Stockton on whether he actually had known Jones before the May 13
incident. The following exchange ensued:
Q. If I understood your testimony a few minutes ago, you
told us all that prior to May 13th of 1999, you had never
seen, never laid eyes on Ricky Ricardo Jones, correct?
A. Thats correct.
Q. And if I also understood your testimony, you told us
that you dont think youd be able to recognize him if you
saw him, is that also your testimony?

UNITED STATES v. STOCKTON

A. Yes.
Q. And you have no reason to understand, based upon
what you told us, why anybody might shoot at him, correct?
A. Correct.
Q. If you do not know Ricky Ricardo Jones, other than the
brief conversation that you told us about in your direct testimony a few moments ago
A. Yes.
Q. why are you calling him as a witness on Monday?
(J.A. at 101-02.) At this point, counsel for Stockton objected, to
which the Court responded:
I sustain the objection. Thats preposterous. Thats absolutely obscene. Strike that. Disregard that. It is absolutely
nonsense. It is ridiculous. [T]he man has a lawyer who
investigated the case. Mr. Ricardo Jones is obviously a figure in the case. Of course, counsels going to find him.
Now, move to something else.
(J.A. at 102.) Jones eventually did testify for the defense and essentially corroborated Stocktons version of the events of May 13, 1999.
In its rebuttal case, the Government called Tasha Gray, whom the
defense had chosen not to call. Gray related a version of the events
of May 13, 1999, that might have been helpful to Stockton, had it not
been at odds with the testimony of Stockton and Jones. Gray testified
that Stockton had been on the porch of her house with her from the
time Jones drove into the neighborhood until after the shooting. Gray
also testified that defense counsel had told her that she would be called as a witness for the defense.
During closing argument, the Government highlighted the fact that
Stockton had failed to call Gray as a witness, stating, "[a]nd then, of

UNITED STATES v. STOCKTON

course, there was Tasha Gray, who was supposed to be a defense witness, but then [they] chose not to call her." (J.A. at 123.) Counsel for
Stockton objected and the district court responded by stating, "[w]ell,
Im going to allow argument, and people have a difference of opinion,
you can air it in your arguments. Okay. Go ahead." (J.A. at 123.)
At the close of argument, counsel for Stockton moved for a mistrial, stating that the inappropriate question during the crossexamination of Stockton in combination with the Governments mention of Stocktons failure to call Tasha Gray as a witness effectively
denied Stockton his right to a fair trial. The district court denied the
motion, and the jury ultimately found Stockton guilty on each of the
five counts of the indictment.1
At sentencing, Stockton moved for a downward departure based on
the over-representativeness of his criminal history category. See U.S.
Sentencing Guidelines Manual 4A1.3 (1998). Because Stockton had
two prior felony controlled substance convictions an October 10,
1990 conviction for possession with intent to distribute narcotics and
a January 4, 1991 conviction for distribution of narcotics he qualified as a career offender under U.S.S.G. 4B1.1. After initially arguing that the career offender enhancement should not apply at all
because the predicate offenses should not count separately, defense
counsel conceded that the predicate offenses should count separately,
and then made an oral motion for downward departure pursuant to
U.S.S.G 4A1.3 based on the over-representativeness of the career
offender classification. Stocktons rationale in support of his motion
was that both of the predicate offenses were for dealing drugs in the
Park Heights area of Baltimore, and thus they were part of the same
course of conduct. The district court granted the motion for departure,
and sentenced Stockton as if the career offender enhancement did not
apply, resulting in a downward departure of 150 months. In total,
Stockton received a sentence of 330 months incarceration (210
months on count one, and 120 months on each of counts four and five
(concurrent to each other and to the sentence on count one), and 120
months on count two (consecutive)). Had the district court not
departed, Stockton would have received a minimum sentence of 360
1

The district court later vacated the conviction on count three for reasons that are not relevant to this appeal.

UNITED STATES v. STOCKTON

months on count one, which, with the mandatory consecutive 120

month sentence on count two, would have resulted in a minimum sentence of 480 months incarceration.
On appeal, Stockton challenges his convictions, arguing that (1) the
evidence at trial was insufficient to support his conviction on any of
the charges; (2) the district court committed plain error in failing to
issue a "multiple conspiracies" instruction; and (3) that the Governments transgressions during the trial effectively denied him his right
to a fair trial, and therefore, the district court should have declared a
mistrial. The Government cross-appeals the sentence, arguing that the
departure was inappropriate and should be reversed. We address each
issue in turn.
II.
A.
When considering a sufficiency of the evidence challenge to a
guilty verdict, we must sustain the jurys verdict "if there is substantial evidence, taking the view most favorable to the Government, to
support it." United States v. Glasser, 315 U.S. 60, 80 (1942); see also
United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003). In determining whether the evidence in the record is "substantial," we view
the evidence in the light most favorable to the Government and
inquire whether there is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of a
defendants guilt beyond a reasonable doubt. United States v. Burgos,
94 F.3d 849, 862-63 (4th Cir. 1996).
The evidence presented at trial, when viewed in the light most
favorable to the Government, is more than sufficient to support the
jurys guilty verdict on each of the counts. Respecting the conspiracy
charge, the jury heard corroborating testimony from multiple witnesses about the existence of the agreement among multiple parties
to distribute heroin in the Park Heights neighborhood. Two of the top
echelon members of the conspiracy testified that Stockton knew of,
and participated in, the conspiracy from 1994 through 1999, with the
only interruption stemming from his incarceration. Thus, the evidence
was more than sufficient to satisfy each of the elements of a conspir-

UNITED STATES v. STOCKTON

acy under 21 U.S.C.A. 846. See Burgos, 94 F.3d at 857-58 (explaining that conspiracy under 846 requires the Government to prove
"(1) an agreement to possess [a controlled substance] with intent to
distribute existed between two or more persons; (2) the defendant
knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy" and noting that these elements
may be proved wholly through circumstantial evidence).
Regarding the weapons charges, the testimony of Clinton Williams
placed Stockton at the scene of the May 13, 1999 incident with gun
in hand. Although Williams did not see Stockton actually fire the gun,
Williamss testimony that he heard gunshots immediately after seeing
Stockton with the gun is sufficient direct evidence to support the reasonable inference that Stockton was the one who fired. While it is true
that Williamss recollection of the events was at odds with that of
Stockton and Jones, it was the responsibility of the jury to weigh the
evidence and determine which version to believe. See id. at 862. The
jury chose to believe Williams and disbelieve Stockton and Jones, and
we see no reason to disturb that conclusion here. In sum, the evidence
was sufficient to support the jurys guilty verdict on each of the firearms charges.
B.
The next issue that Stockton raises is whether the district court
should have given a "multiple conspiracies" instruction to the jury.2
At trial, Stockton neither requested such a "multiple conspiracies"
instruction, nor objected at the charging conference to the lack of such
an instruction. Therefore, we consider any resulting error only if it is
"[a] plain error that affects substantial rights." Fed. R. Crim. P. 52(b).
In order to notice a putative error under Rule 52(b), Stockton first
"must demonstrate [1] that an error occurred, [2] that the error was
plain, and [3] that the error affected his substantial rights." United
States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001). Even if Stockton
satisfies these requirements, correction of the error remains within the
discretion of the appellate court, which the court "should not exercise
2

Neither in his briefs nor at oral argument did Stockton identify the
specific "multiple conspiracies" instruction that the district court should
have given.

UNITED STATES v. STOCKTON

. . . unless the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings." United States v. Olano, 507 U.S.
725, 732 (1993) (alteration in original) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)).
In cases where a defendant is charged with conspiracy, a district
court must issue a "multiple conspiracies" instruction where the evidence supports a finding that multiple conspiracies existed. United
States v. Bowens, 224 F.3d 302, 307 (4th Cir. 2000). However, "[a]
multiple conspiracy instruction is not required unless the proof at trial
demonstrates that [the defendant] [was] involved only in [a] separate
conspirac[y] unrelated to the overall conspiracy charged in the indictment." United States v. Squillacote, 221 F.3d 542, 574 (4th Cir.
2000) (quoting United States v. Kennedy, 32 F.3d 876, 884 (4th Cir.
1994)). We have noted that a single overall conspiracy can be distinguished from multiple independent conspiracies based on the overlap
in actors, methods, and goals: "A single conspiracy exists where there
is one overall agreement, or one general business venture.
Whether there is a single conspiracy or multiple conspiracies depends
upon the overlap of key actors, methods, and goals." United States v.
Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (citations omitted).
The evidence at trial did not support a finding that Stockton was
involved in a separate conspiracy. Instead, the evidence at trial
showed rather compellingly that one, and only one, enterprise controlled the distribution of heroin in the Park Heights neighborhood of
Baltimore from 1994 through 1999, and that it operated as one continuous business enterprise. Elijah Jacobs testified at trial that Rolando
Stockton was involved in the conspiracy before he went to jail in
1994, and that he rejoined upon his release in 1999. There was no evidence that Stockton was involved in a separate conspiracy unrelated
to the Park Heights ring. The district court committed no error, plain
or otherwise, in failing to give a "multiple conspiracies" instruction.
C.
The remaining issue Stockton raises on appeal is whether the incidents of alleged prosecutorial misconduct had the effect of denying
Stockton his right to a fair trial. Stockton raised this argument at trial
in a motion for mistrial, which the district court denied. We review

10

UNITED STATES v. STOCKTON

the denial of a motion for mistrial for abuse of discretion. United

States v. Stewart, 256 F.3d 231, 241 (4th Cir. 2001).
We apply a two-pronged test in determining whether alleged incidents of prosecutorial misconduct warrant reversal. We must assess
"(1) whether the prosecutors remarks or conduct was improper, and
(2) whether such remarks or conduct prejudicially affected the defendants substantial rights so as to deprive [him] of a fair trial." United
States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994); see also United
States v. Bennett, 984 F.2d 597, 608 (4th Cir. 1993) (applying the
standard to an allegedly improper question asked during crossexamination). The Government candidly concedes that its question
during the cross-examination of Stockton was improper, but disputes
the assertion that the reference in closing argument to the defendants
decision not to call Tasha Gray as a witness was improper. Therefore,
our task here is to determine whether the Tasha Gray comment was,
in fact, improper, and whether the cumulative effect of any prosecutorial misconduct prejudicially affected Stocktons substantial rights.
Stockton has not clearly explained how the Governments comment regarding Tasha Gray implicated his constitutional rights. In
cases where the defendant has exercised his Fifth Amendment right
not to testify, the Government must exercise care in commenting on
the defendants failure to produce witnesses, so as not to violate the
rule of Griffin v. California, 380 U.S. 609 (1965), by calling attention
to the defendants own failure to testify. See United States v. Parker,
903 F.2d 91, 98 (2d Cir. 1990); United States v. Fleishman, 684 F.2d
1329, 1343 (9th Cir. 1982). But here, Stockton testified, so the comment could not have implicated his right to remain silent. Moreover,
because Tasha Gray herself testified, the comment was not an invitation to the jury to infer that the testimony would have been adverse
to Stocktons case. Cf., e.g., United States v. Fisher, 484 F.2d 868,
870 (4th Cir. 1973) ("Where a witness is readily available to both
sides, no inference is to be drawn against either party from the fact
that he has not been called."). In short, Stockton has not demonstrated
how this comment implicated any constitutional right.3 In actuality,
3

It is important to note that, had Gray herself not testified that the
defense had intended to call her as a witness, her status as an erstwhile
defense witness would not have been evidence in the record, and any
mention thereof in closing argument would have been an inappropriate
attempt by the prosecution to inject into the case evidence not before the
jury.

UNITED STATES v. STOCKTON

11

the comment appears to have been nothing more than an attempt to

call attention to the inconsistencies between Grays testimony and
Stocktons testimony, and thereby invite the jury to infer that Stockton was not a credible witness the type of inference that is grist
for the mill in closing argument.
Because the Tasha Gray comment was not improper, the only incident of prosecutorial misconduct was the Governments improper
question to Stockton on cross-examination. Therefore, Stockton can
prevail only if that question was so prejudicial as to deny him his
right to a fair trial. In determining whether a prosecutors inappropriate remarks amount to reversible misconduct, four factors are relevant:
"(1) the degree to which the prosecutors remarks have a
tendency to mislead the jury and to prejudice the accused;
(2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether
the comments were deliberately placed before the jury to
divert attention to extraneous matters."
Bennett, 984 F.2d at 608 (quoting United States v. Harrison, 716 F.2d
1050, 1052 (4th Cir. 1983)).
Applying these factors to the present case, it is clear that Stockton
has not demonstrated reversible prejudice. First, any tendency to mislead the jury and prejudice Stockton was minimal. The Government
may have prejudiced Stockton by suggesting an inappropriate reason
to doubt his credibility. Nevertheless, the district court promptly mitigated the damage by sustaining the defenses objection and instructing the jury in emphatic terms to disregard the question. Therefore,
any resulting prejudice was minimal. See Bennett, 984 F.2d at 608
(finding that a district court, in sustaining an objection to an inappropriate question on cross-examination, effectively minimized the prejudice of an inappropriate question). In addition, the question was
relatively isolated. Although the Government made a concerted effort
to attack Stocktons credibility, it only crossed the line on this lone
occasion and did not refer to Stocktons familiarity with Jones during
closing argument. Third, the Governments case in general, and the

12

UNITED STATES v. STOCKTON

evidence of Stocktons lack of credibility specifically, were strong.

Stocktons version of events on May 13, 1999, was directly at odds
with that of the victim, Clinton Williams, and inconsistent with that
of Tasha Gray. In short, setting to the side the inappropriate question,
the jury had ample basis to conclude that Stockton lacked credibility
as a witness and was guilty of the crimes charged. Finally, there is no
suggestion that the prosecutions inappropriate question was a deliberate attempt to divert the jurys attention to extraneous matters.
Therefore, the district court did not abuse its discretion in denying
Stocktons motion for mistrial.
III.
The Government raises one issue in its cross-appeal: Whether the
district court erred when it departed downward based on the overrepresentativeness of Stocktons classification as a career offender
under U.S.S.G. 4B1.1. Sentencing courts may depart from the sentence ranges prescribed by the Sentencing Guidelines whenever the
Guidelines have not accounted for peculiar circumstances in a given
case. Generally, a court may depart from the Guidelines when it
"finds that there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission." 18 U.S.C.A. 3553(b) (West 2000). We
review the district courts factual determinations made in connection
with sentencing for clear error, United States v. Rybicki, 96 F.3d 754,
757-58 (4th Cir. 1996), and review the ultimate decision to depart de
novo.4 18 U.S.C.A. 3742(e) (West Supp. 2003).
4

Prior to April 30, 2003, we reviewed a district courts decision to

depart from the Guidelines for abuse of discretion. See Koon v. United
States, 518 U.S. 81 (1996); United States v. Rybicki, 96 F.3d 754, 75758 (4th Cir. 1996). Congress, however, recently amended 18 U.S.C.A.
3742(e)(4), to require de novo review of certain departure decisions.
See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21,
401(d)(2), 117 Stat. 650, 670. Application of the de novo standard of
review pursuant to 402(d) of the PROTECT Act here does not implicate the Ex Post Facto Clause because a change in the standard of review
merely changes "who within the federal judiciary makes a particular
decision, . . . not the legal standards for that decision." United States v.
Mallon, ___ F.3d ___, No. 03-2049, 2003 WL 22285302, *6 (7th Cir.
Sept. 18, 2003); see United States v. Hutman, 339 F.3d 773, 775 (8th Cir.
2003).

UNITED STATES v. STOCKTON

13

The Sentencing Guidelines state that sentencing courts may depart

downward where the defendants criminal history category "significantly over-represents the seriousness of a defendants criminal history or the likelihood that the defendant will commit further crimes."
U.S.S.G. 4A1.3. Therefore, a sentencing court is encouraged to
depart downward when a defendants criminal history category exaggerates the seriousness of his past criminal conduct or the likelihood
that he will commit further crimes. United States v. Adkins, 937 F.2d
947, 952 (4th Cir. 1991). The same analysis applies when a defendant
urges a sentencing court to find that his classification as a career
offender over-represents the seriousness of his actual criminal history
or his likelihood of recidivism. Id.
Over-representativeness arguments of the type that Stockton
advances here are availing where, for instance, a defendant has two
relatively minor prior convictions that do not suggest that the defendant is truly a "career offender." United States v. Pearce, 191 F.3d
488, 498 (4th Cir. 1999). But where, as here, the defendants criminal
history reflects recidivism in controlled substance offenses, an overrepresentativeness departure is almost never appropriate. See Adkins,
937 F.2d at 952 (noting that Congress deemed controlled substance
recidivism "especially dangerous").
Rolando Stockton is exactly the type of person to whom the career
offender classification is intended to apply. His criminal history, as
reflected by the Pre-Sentence Investigation Report and the facts presented at trial, indicates that Stockton has been entrenched in the drug
trade since at least 1990. He committed two serious drug offenses in
late 1990 and early 1991, for which he received a combined sentence
of 10 years incarceration, all of which was suspended, along with a
term of 5 years supervised probation. That leniency proved improvident, as Stockton violated the terms of his probation by unlawfully
possessing a handgun in 1994, which resulted in a three-year prison
term with the Maryland Department of Corrections. Almost immediately upon his release from incarceration, he returned to a life of
crime, committing the acts for which the jury convicted him here. In
short, Stockton is the very portrait of a career offender, and his classification as such under U.S.S.G. 4B1.1 does not over-represent his
actual criminal history.

14

UNITED STATES v. STOCKTON

IV.
For the foregoing reasons, we affirm Stocktons convictions, and
reverse the district courts decision to depart downward based on the
over-representativeness of the career offender classification. Accordingly, we remand the case for re-sentencing, with instructions to apply
the career offender classification.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS