USCA4 Appeal: 22-4185 Doc: 103 Filed: 01/14/2025 Pg: 1 of 16

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4163

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRENCE VERNON DUNLAP,

Defendant - Appellant.

No. 22-4185

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRENCE VERNON DUNLAP, a/k/a Tex,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:19-cr-00781-MGL-1; 3:17-cr-00811-MGL- 13)

Submitted: November 22, 2024 Decided: January 14, 2025 USCA4 Appeal: 22-4185 Doc: 103 Filed: 01/14/2025 Pg: 2 of 16

Before GREGORY and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Thomas Kieran Maher, LAW OFFICE OF AMOS TYNDALL PLLC, Carrboro, North Carolina, for Appellant. Adair F. Boroughs, United States Attorney, Columbia, South Carolina, Andrea G. Hoffman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In 2016, a task force led by the Federal Bureau of Investigation began an

investigation into the drug trafficking activities of brothers Dantrell Smith and Santerrio

Smith (“S. Smith”). Through a variety of investigative techniques, including wiretaps, the

task force discovered the involvement of multiple individuals in the drug trafficking

conspiracy, including Terrence Vernon Dunlap. Some of those individuals pled guilty, but

Dunlap and others (collectively, “Defendants”) chose to go to trial. The jury convicted

Dunlap of conspiracy to possess with intent to distribute and distribute five kilograms or

more of a mixture or substance containing cocaine and 100 grams or more of a mixture or

substance containing heroin, in violation of

(a)(1), (b)(1)(A), 846

(Count 1); using a communication facility during the commission of that conspiracy, in

violation of

(b) (Count 21); and possession with intent to distribute and

distribution of a quantity of cocaine base (“crack cocaine”), in violation of

(a)(1), (b)(1)(C) (Count 49). While the drug trafficking trial was ongoing, Dunlap,

his mother, and his sister confronted one of the jurors. All three pled guilty to jury

tampering and aiding and abetting the same, in violation of

, 1503(a), (b)(2)

(Count 1A). In these consolidated appeals, Dunlap challenges his convictions and his 232-

month sentence. We affirm.

I.

Dunlap argues that the district court erred in denying Defendants’ motion to

suppress the evidence obtained from the wiretaps. Specifically, he argues that the wiretap

orders were not supported by probable cause or a showing that normal investigative

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techniques had failed. Dunlap, however, correctly observes that we rejected these same

arguments in an appeal brought by some of his co-conspirators. See United States v.

Pernell, Nos. 20-4135/4044, 21-4172,

, at *1-3 (4th Cir. Apr. 24, 2023).

II.

Dunlap challenges the district court’s denial of his motion to sever the substantive

drug trafficking offense in Count 49 from the drug trafficking conspiracy offense in Count

1 and the related use of communication facility offense in Count 21. Specifically, he argues

that the joinder of the offenses prejudiced him because the Government failed to establish

that the drug transaction alleged in Count 49 was related to the conspiracy.

“Under Federal Rule of Criminal Procedure 8(a), a single indictment may charge a

defendant with multiple counts if the offenses charged ‘are of the same or similar character,

or are based on the same act or transaction, or are connected with or constitute parts of a

common scheme or plan.’” United States v. Branch,

(4th Cir. 2008)

(quoting Fed. R. Crim. P. 8(a)). “Rule 8(a) permits very broad joinder because the prospect

of duplicating witness testimony, impaneling additional jurors, and wasting limited judicial

resources suggests that related offenses should be tried in a single proceeding.” United

States v. Hawkins,

(4th Cir. 2015) (cleaned up). But Rule 8(a) “cannot

be stretched to cover offenses which are discrete and dissimilar,” as “[j]oinder of unrelated

charges creates the possibility that a defendant will be convicted based on considerations

other than the facts of the charged offense.”

(cleaned up). “Whether charges are

properly joined in an indictment is a question of law that we review de novo.”

(emphasis omitted).

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But even if offenses are properly joined, severance is appropriate if the defendant

establishes that he would be prejudiced by the joinder. Fed. R. Crim. P. 14(a). A defendant

moving to sever properly joined counts “bears the burden of demonstrating a strong

showing of prejudice,” Branch,

(internal quotation marks omitted), “and

it is not enough to simply show that joinder makes for a more difficult defense,” United

States v. Goldman,

(4th Cir. 1984). Indeed, “a district court should

grant a severance under Rule 14 only if there is a serious risk that a joint trial

would . . . prevent the jury from making a reliable judgement about guilt or innocence.”

Zafiro v. United States,

(1993). “[T]he district court’s denial of a motion

to sever should be left undisturbed, absent a showing of clear prejudice or abuse of

discretion.” Branch,

(internal quotation marks omitted); see United

States v. Hornsby,

(4th Cir. 2012) (“Where offenses are properly joined

under Rule 8(a), severance of the offenses is rare.”).

We conclude that the district court did not abuse its discretion in denying Dunlap’s

motion to sever Count 49 from Counts 1 and 21. Contrary to Dunlap’s argument, the

Government established that the transaction alleged in Count 49 was related to the

conspiracy. The transaction occurred during the conspiracy at a place often used by

members of the conspiracy for distributing drugs and involved the same kind of drugs and

several of the same characters. But even if Count 49 was not related to the conspiracy, we

conclude that the joint trial did not prejudice Dunlap because there was more than enough

evidence to convict him of the conspiracy, including the intercepted calls and the testimony

of multiple co-conspirators.

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III.

Dunlap argues that the district court erred in granting the Government’s motion to

limit the cross-examination of a cooperating witness (“CW”) who testified about Dunlap’s

involvement in the conspiracy. Dunlap wanted to question the CW about the mandatory

life sentence he faced when he first decided to cooperate with the Government. The

Government opposed that line of questioning because the CW no longer faced a mandatory

life sentence after application of the First Step Act of 2018,

Stat. 4194. To avoid jury confusion and nullification, the district court prohibited defense

counsel from questioning the CW about the mandatory life sentence.

“A trial judge has wide latitude to impose reasonable limits on cross-examination

to address concerns of prejudice, confusing the jury, relevance, and repetition.” United

States v. Kiza,

(4th Cir. 2017) (internal quotation marks omitted).

Accordingly, “[w]e review for abuse of discretion a trial court’s limitation on a defendant’s

cross-examination of a prosecution witness.”

(internal quotation marks

omitted). And we find that the district court abused its discretion in denying the defendant

an opportunity to cross-examine a witness, we will not reverse if the error was harmless.

United States v. Turner,

(4th Cir. 1999).

“[A] defendant’s right to cross-examine cooperating witnesses about sources of

potential bias is guaranteed by the Confrontation Clause of the Constitution.” United

States v. Cropp,

(4th Cir. 1997). “A witness’s understanding of the

potential penalties faced prior to entering into a plea agreement may demonstrate bias and

prejudice, as well as the motive of the witness for testifying against the defendant and for

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the prosecution.” Turner,

. Accordingly, such an inquiry is “highly

relevant to testing the witness’s credibility.”

But while a defendant may ask a cooperating witness whether he hopes to receive

some benefit in exchange for his testimony, a district court may prohibit the defendant from

asking questions about the “specific penalties” the witness faced before pleading guilty.

Cropp,

. As we explained, if the jury learned of the specific sentence a

cooperating witness avoided by pleading guilty, the jury could infer that the defendant

would receive a similarly long sentence if convicted.

The jury, therefore, might acquit

the defendant out of sympathy.

. And given that a defendant may still reveal a

cooperating witness’s potential bias by asking whether he expects to receive some benefit

for his testimony, the risk of jury nullification outweighs the probative value of information

about specific sentences. See

Dunlap relies on United States v. Larson,

(9th Cir. 2007) (en banc),

to contend that a mandatory life sentence is qualitatively different than other penalties a

witness seeks to avoid by cooperating with the government. The Ninth Circuit generally

holds, as we did in Cropp, “that it is not error for the district court to prohibit cross-

examination regarding the potential maximum statutory sentence that the witness faces,”

as “such evidence [is] at best marginally relevant to a witness’[s] potential bias and motive

in testifying.” Larson,

(internal quotation marks omitted). But the Ninth

Circuit explained that a “potential maximum statutory sentence that a cooperating witness

might receive . . . is fundamentally different from the mandatory minimum sentence that

the witness will receive in the absence of a motion by the [g]overnment.”

(emphases in

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original). While “a defendant seldom receives the maximum penalty permissible under the

statute of conviction,” “the fact that . . . a cooperating witness faced a mandatory life

sentence without the possibility of release in the absence of a government motion is highly

relevant to the witness’[s] credibility.”

The mandatory life sentence “is a sentence that

the witness knows with certainty that he will receive unless he satisfies the government

with substantial and meaningful cooperation so that it will move to reduce his sentence.”

(emphasis in original).

But Dunlap omits that the Larson court found that the violation of the Confrontation

Clause was harmless.

. The court explained that the government’s case

against the defendants was strong even without the cooperating witness’s testimony; that

the trial “court instructed the jury that it should view the testimony of the cooperating

witnesses with greater caution than that of other witnesses”; and that counsel was able to

explore through cross-examination the cooperating witness’s “criminal past, history as a

drug user and seller, and desire to obtain a lesser sentence through his testimony against

his co-conspirators.”

.

As in Larson, Dunlap’s drug trafficking conspiracy conviction did not depend on

the CW’s testimony, as other cooperating witnesses provided even more damaging

testimony about Dunlap’s involvement in the conspiracy. The CW’s testimony, however,

established that Dunlap was guilty of Count 21, as the CW recognized Dunlap’s voice on

the intercepted call. But, as in Larson, counsel was able to effectively cross-examine the

CW about his potential motivation to lie, eliciting that the CW was hoping to reduce his

significant statutory penalties by testifying. The Government also questioned the CW

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about his drug addiction, his prior conviction for providing false information to the police,

the significant benefit he received from his plea agreement, and the downward departure

he expected for his substantial assistance. Finally, the district court instructed the jury to

examine the testimony of drug addicts, convicted felons, and cooperating witnesses with

greater care than the testimony of an ordinary witness. Based on these factors, we conclude

that, even if a mandatory life sentence is qualitatively different than any other sentence a

witness is seeking to avoid through his cooperation, any error in limiting the cross-

examination of the CW here was harmless.

IV.

Moving on to the jury tampering conviction, Dunlap argues that the district court

plainly erred by accepting his plea. Specifically, he contends that the district court was

required to conduct the plea colloquy with special care because the court was aware that

his plea was part of a package deal—that is, if any of the Dunlaps declined to plead guilty,

then all three would go to trial.

“Because [Dunlap] did not attempt to withdraw his guilty plea in the district court,

we review this claim for plain error.” United States v. Kemp,

(4th Cir. 2023) (internal quotation marks omitted). “Under that standard, [Dunlap] can

prevail and withdraw his plea only if he demonstrates an obvious or plain error that affected

his substantial rights.”

(internal quotation marks omitted). “[T]o establish an effect on

his substantial rights in this context, [Dunlap] bears the burden of establishing a reasonable

probability that, but for the error, he would not have entered the plea.”

(internal

quotation marks omitted).

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The promise of adverse or lenient treatment for a third party is a legitimate tool in

the plea bargaining process that does not render a plea per se invalid. Harman v. Mohn,

(4th Cir. 1982). Even so, “[s]pecial care must be taken to determine the

voluntariness of the plea in such circumstances,” as the promise of leniency for a third

party in a plea agreement “might pose a greater danger of inducing a false guilty plea by

skewing the assessment of the risks a defendant must consider.” United States v. Morrow,

(4th Cir. 1990). When a plea agreement affects the interests of a third

party, we have considered many factors to assess whether the plea was voluntary,

including: (1) whether the agreement was fully disclosed to the court; (2) whether the third

party had already been charged; (3) whether there was probable cause to support the

potential prosecution of the third party; (4) whether the parties were represented by separate

counsel; (5) whether the defendant readily admitted guilt at the plea hearing; (6) whether

the defendant disputed the voluntariness of the plea agreement at the time of the plea; and

(7) whether there was evidence that the third party pressured the defendant to plead guilty.

See id.; Harman,

.

We conclude that the district court took the required special care to ascertain

whether Dunlap’s plea was voluntary. After learning about the package deal, the district

court confirmed that neither the Government nor Dunlap’s family members bribed him or

threatened any kind of physical or financial harm if he did not plead guilty. Apart from

this colloquy, other factors demonstrated the voluntariness of Dunlap’s plea. Specifically,

Dunlap’s mother and sister had already been charged, meaning there was probable cause

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for their prosecution; all three Dunlaps had their own attorneys; and Dunlap readily

admitted his guilt based on the factual basis provided by the Government.

Dunlap, however, contends that the district court was obligated to ask more

questions about the package deal, like when he learned about the deal or whether he had

time to weigh the benefit to his family members against the sacrifice of his trial rights.

While the district court did not ask those specific questions, it inquired whether Dunlap

had sufficient time to discuss the plea agreement with counsel and whether he was satisfied

with counsel’s services. Dunlap expressed his displeasure with the timeframe and

counsel’s services, but his concern was about his Sentencing Guidelines range, which the

district court correctly advised him on multiple occasions would not be known until the

sentencing hearing. Thus, Dunlap’s hesitancy in pleading guilty was caused by his

misunderstanding of the sentencing process. He expressed no hesitancy about the package

deal other than that it made the decision whether to plead guilty more difficult.

Accordingly, even if the district court plainly erred, we conclude that Dunlap has not

established that he would not have pled guilty had the court asked him more probing

questions about the package deal.

V.

“We review a district court’s sentencing decisions under a deferential abuse-of-

discretion standard.” United States v. McCabe,

(4th Cir. 2024) (internal

quotation marks omitted), cert. denied, No. 24-5480,

(U.S.

Oct. 15, 2024). And “[w]hen considering a challenge to a district court’s application of the

Guidelines, [we] review[] factual findings for clear error and legal conclusions de novo.”

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United States v. Freitekh,

(4th Cir. 2024) (internal quotation marks

omitted). “Under the clear error standard, we will only reverse if left with the definite and

firm conviction that a mistake has been committed.” United States v. Claybrooks,

(4th Cir. 2024) (internal quotation marks omitted). “If the district court’s account

of the evidence is plausible in light of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently.” United States v. Charboneau,

(4th Cir. 2019) (internal quotation marks omitted).

A.

Dunlap challenges the application of the two-level enhancement for possession of a

firearm during the commission of the drug trafficking conspiracy. See U.S. Sentencing

Guidelines Manual § 2D1.1(b)(1) (2018). This enhancement “reflects the increased danger

of violence when drug traffickers possess weapons” and “should be applied if the weapon

was present, unless it is clearly improbable that the weapon was connected with the

offense.” USSG § 2D1.1 cmt. n.11(A).

The district court applied the enhancement here because the CW told the

investigating officers that he saw a firearm in a door compartment of Dunlap’s vehicle

when Dunlap was visiting S. Smith to either pick up drugs or pay S. Smith with drug

proceeds. Dunlap argues that the district court clearly erred in applying the enhancement

because the CW was unreliable and, therefore, his statement was not sufficiently reliable

to support the enhancement. Dunlap emphasizes that the CW never mentioned that he saw

a firearm during his lengthy trial testimony, that no other witnesses claimed to see Dunlap

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with a firearm, and that the Government failed to present any evidence at the sentencing

hearing to support the enhancement. Dunlap also criticizes the district court for failing to

make any findings about the CW’s credibility generally or about the credibility of his

statement about the firearm.

“It is well established that a court may, for purposes of sentencing, consider any

relevant information before it, including uncorroborated hearsay, provided that the

information has sufficient indicia of reliability to support its accuracy.” United States v.

Mondragon,

(4th Cir. 2017) (internal quotation marks omitted). “[T]he

defendant bears an affirmative duty to show that the information in the presentence report

[(PSR)] is unreliable, and articulate the reasons why the facts contained therein are untrue

or inaccurate.”

(internal quotation marks omitted). A “district court’s determination

that evidence is sufficiently reliable to be considered at sentencing is reviewed for an abuse

of discretion.” United States v. Pineda,

(4th Cir. 2014).

At a sentencing hearing, the district court “must—for any disputed portion of the

[PSR] or other controverted matter—rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the court will

not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). “A sentencing court’s

findings on controverted matters ensure a record as to how the district court ruled on any

alleged inaccuracy in the PSR and allows effective appellate review of the sentence

imposed.” United States v. Bolden,

(4th Cir. 2003) (cleaned up). But

“the court need not articulate findings as to disputed factual allegations with minute

specificity.”

(cleaned up). In fact, “[a] district court may adopt the PSR’s findings in

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toto as the factual basis for a sentencing decision so long as it clearly resolved any factual

disputes.” United States v. Burnley,

(4th Cir. 2021) (cleaned up).

Nonetheless, “an enhancement that rests only on a general citation to the PSR may still fail

clear error review if the record as a whole runs contrary to that conclusion.”

Dunlap is correct that there were reasons to question the CW’s reliability, including

his drug addiction, his criminal history, his motives for cooperating, and his purported bias

against Dunlap. But these characteristics are not uncommon for a cooperating witness.

Moreover, contrary to Dunlap’s assertion, the district court explained why it believed the

CW’s statement. Specifically, the district court explained that the connection between the

CW, S. Smith, and Dunlap was corroborated by the intercepted calls, which showed that

the three men were engaged in the drug trafficking business together. We conclude that it

was not clear error for the district court to credit the CW’s statement and to find that the

Government established by a preponderance of the evidence that Dunlap possessed a

firearm during the course of the drug trafficking conspiracy.

B.

Dunlap’s final challenge is to the district court’s calculation of the drug quantity

attributed to him. “For sentencing purposes, the government must prove the drug quantity

attributable to a particular defendant by a preponderance of the evidence.” United States v.

Bell,

(4th Cir. 2011). “The Guidelines notes instruct that when no known

amount of drugs can be relied on to establish a defendant’s attributable drug weight, the

district court must ‘approximate the quantity of the controlled substance’ at issue.” United

States v. Banks,

(4th Cir. 2024) (quoting USSG § 2D1.1 cmt. n.5), cert.

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denied, No. 24-5300,

(U.S. Oct. 7, 2024), and cert. denied, No. 24-

5738,

(U.S. Nov. 12, 2024). When doing so, “district courts enjoy

considerable leeway and may give weight to any relevant information before it, including

uncorroborated hearsay, provided that the information has sufficient indicia of reliability

to support its accuracy.”

(internal quotation marks omitted). Nonetheless, “courts must

exercise caution in estimating drug quantity at sentencing, and must not attribute

speculative or scantily supported amounts to defendants.”

(cleaned up). Thus, “we

have cautioned that when the approximation is based only upon uncertain witness

estimates, district courts should sentence at the low end of the range to which the witnesses

testified.” Bell,

(internal quotation marks omitted).

Dunlap contends that the district court clearly erred by counting the 1,000 grams of

heroin derived from an intercepted call—Session 7334. We agree with Dunlap that this

conversation was unintelligible and that the district court clearly erred in attributing 1,000

grams of heroin to him based on this conversation. But we agree with the Government that

this error was harmless. The Guidelines prescribe a base offense level of 32 when the

offense involves between 3,000 and 10,000 kilograms of converted drug weight. USSG

§ 2D1.1(c)(4). The converted drug weight for 1,000 grams of heroin is 1,000 kilograms.

USSG § 2D1.1 cmt. n.8(D). Subtracting 1,000 kilograms from the total converted drug

weight of 6,432.74 kilograms results in a converted drug weight of 5,432.74 kilograms,

which still falls within the range for a base offense level of 32. USSG § 2D1.1(c)(4).

Dunlap also argues that the district court clearly erred by counting the quantity of

crack cocaine derived from the CW’s statement. We disagree. Again, while there were

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reasons to doubt the CW generally, his statement about the quantity of crack cocaine was

corroborated by the testimony of other cooperating witnesses and the intercepted calls.

Accordingly, the district court did not clearly err in counting the quantity of crack cocaine

derived from the CW’s statement.

VI.

Although we deny Dunlap’s motion to relieve appellate counsel and proceed pro se,

we grant his motion for leave to file a pro se supplemental brief. See United States v. Gillis,

(4th Cir. 1985). We have thoroughly reviewed Dunlap’s pro se

supplemental brief but have identified no valid ground for relief. Accordingly, we affirm

Dunlap’s convictions and sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

AFFIRMED

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