UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4995



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

     versus


ANTONIO DEMONTA HARVEY,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-03-88)


Argued:   October 28, 2005                 Decided:   December 8, 2005


Before LUTTIG, MOTZ, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: Sue Ann Genrich Berry, BOWEN, BERRY & POWERS, Wilmington,
North Carolina, for Appellant. Christine Witcover Dean, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c)
PER CURIAM:

     Antonio Harvey challenges his convictions and sentence for

conspiracy to distribute and possess with the intent to distribute

cocaine base, and related narcotics offenses.             We affirm Harvey’s

convictions, but because his sentence violated the Sixth Amendment,

vacate his sentence and remand for a resentencing.



                                     I.

     A grand jury indicted Harvey for conspiring with Torrie Hood,

Ali Freeman, Benjamin Tyson, and others “known and unknown to the

Grand Jury” to distribute and possess with the intent to distribute

fifty grams of cocaine base (crack), beginning in September 2001

and continuing until December 2003, in violation of 21 U.S.C.A. §§

841(a)(1) and 846 (West 1999).       The indictment also charged Harvey

with one count of distribution of five grams cocaine base in

violation of 21 U.S.C.A. § 841(a)(1) (West 1999) and one count of

distribution of five grams cocaine base and aiding and abetting in

violation   of   18   U.S.C.A.   §   2    (West   2000)    and   21   U.S.C.A.

§ 841(a)(1) (West 1999).

     At trial the Government presented six witnesses who claimed to

have engaged in drug transactions with Harvey.            Lieutenant Michael

Stevens, an undercover officer with the Duplin County, North

Carolina Sheriff’s Department, testified that he twice bought crack

from Harvey as part of a drug investigation.              Lieutenant Stevens


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first    encountered   Harvey   on   September   25,   2001    when   he   was

attempting to buy narcotics from Harvey’s co-defendant Ali Freeman.

While Lieutenant Stevens was at the residence of a confidential

informant in Kinston, North Carolina, Harvey approached and asked

if the lieutenant was looking to buy drugs.            Lieutenant Stevens

indicated that he was looking for an ounce and a half of crack.

Harvey said that he would be able to help, but that it would take

a few minutes to contact his source.       Harvey left to make a phone

call, but did not return for some time.          Before Harvey returned,

Freeman and Torrie Hood, who was also named in the indictment,

arrived and sold an ounce and a half of crack to Lieutenant

Stevens, who did not buy crack from Harvey on that occasion.

        One month later, on October 12, 2001, Lieutenant Stevens

targeted Harvey for a drug transaction.           The lieutenant waited

outside Harvey’s residence until he returned and then asked if

Harvey could obtain an ounce and a half of crack.             After making a

phone call, Harvey told Lieutenant Stevens that they had to go pick

up the drugs.    Harvey climbed in the back of Lieutenant Stevens’

pickup truck and directed him to a different residential area of

Kinston.    Harvey took $1,500 from Lieutenant Stevens and obtained

for him a package containing 35.2 grams cocaine base.                      When

Lieutenant Stevens discovered that he had received approximately

six grams fewer than he had paid for, he returned to Harvey’s

residence to demand repayment for the shortage.           Harvey told the


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lieutenant he would “do a makeup on the next transaction,” meaning

that he would give Stevens an extra six grams on his next purchase

from Harvey.

     Lieutenant Stevens bought crack from Harvey on a second

occasion one year later.        On September 6, 2002, the lieutenant

again approached Harvey at his residence looking to buy an ounce of

drugs.   After placing a telephone call, Harvey told Lieutenant

Stevens to go wait at a nearby house for the drugs to be delivered.

While the officer waited at the second residence, Harvey and Hood

approached   to   ask   if   Lieutenant   Stevens   “was   for   real   about

purchasing it.”    After five to ten minutes, Hood returned with a

bag containing approximately five ounces of crack cocaine.               Hood

measured out 27.8 grams crack for Lieutenant Stevens, and told him

that he could call Harvey if he needed to contact Hood in the

future. Lieutenant Stevens reported that Hood told him that Harvey

was “his man.”

     Hood stated that he began supplying drugs to Harvey in 1999,

when Harvey was having trouble paying bills.         Hood advanced Harvey

an ounce of crack, which Harvey paid for three to four days later.

Hood later advanced Harvey another ounce, but ceased supplying him

with drugs after Harvey failed to repay Hood for that second ounce.

Harvey began obtaining drugs from a person named “Black” after Hood

refused to deal with him.       Hood resumed supplying drugs to Harvey

again in early 2001, however, when Harvey asked to buy smaller


                                     4
quantities of crack by paying cash up front.                  Hood also filled

orders when Harvey called and asked him to deliver a specific

quantity of crack for a buyer.           Hood admitted to participating in

the   sale   to     Lieutenant    Stevens    in   September   2002.     He   also

testified that Harvey kept a gun under the parking brake in his

Jeep.

      Hood’s cousin Benjamin Tyson, another named co-conspirator,

testified that he sold an ounce of crack to Harvey on two separate

occasions in 2003.         He also asserted that he used to walk by

Harvey’s house and talk with him about selling crack at least twice

a month.

        Three other persons not named in the indictment testified that

they had engaged in drug transactions with Harvey. Jonothor Fields

related that he sold Harvey crack in “like 2000 and 2002.”              Gregory

Bryant said that he sold crack to Harvey in 2002.               Finally, Elmer

Ray Vaughn testified that he had bagged and sold drugs with Harvey

in 1997 and 1998, that he had sold drugs to Harvey in 2000 and

2001, and that he sold drugs with Harvey at a fairground in 2001.

        Harvey himself testified, claiming that he never used drugs.

Although he admitted that he participated in the September 2001

transaction with Lieutenant Stevens, he claimed to have done so at

the request of an officer named Williams.                Harvey specifically

contested     all    of   the    other   testimony    regarding   his   alleged




                                         5
participation        in   drug     transactions,       including   the     second

transaction involving Lieutenant Stevens.

     The      jury   convicted     Harvey   on   all    three   counts.      The

presentence investigation report calculated that Harvey conspired

to distribute and possess with an intent to distribute 1,733.7

grams    of    cocaine    base.      Harvey   objected     to   that     quantity

calculation, stating that he was only willing to stipulate to the

quantity of drugs sold to Lieutenant Stevens -– a total of 53

grams. The district court found by a preponderance of the evidence

that Harvey was responsible for over 1,500 grams, giving him a base

offense level of 38.              The court also imposed, over Harvey’s

objection, a two-level enhancement for possession of a firearm

during a drug transaction.            With an offense level of 40 and a

criminal history category of III, Harvey’s sentencing range was 360

months to life.

        Harvey contested this proposed sentence, on the ground that

the then mandatory federal Sentencing Guidelines were invalid. The

district court overruled that objection, relying on our now-vacated

opinion in United States v. Hammoud, 

(4th Cir. 2004),

vacated and remanded, 

(2005).              The court sentenced

Harvey to 360 months on the conspiracy count, with concurrent

sentences on the distribution and aiding and abetting offenses.

The court then announced an alternative sentence, as suggested by




                                        6
Hammoud, of 240 months.      Harvey appeals, challenging both his

convictions and sentence.



                                   II.

     Harvey   first   contends   that    the   Government   constructively

amended the conspiracy charge by introducing evidence of “a series

of separate, unrelated transactions.”          Brief of Appellant at 14.

Because Harvey did not assert this argument at trial, we review it

only for plain error.   United States v. Floresca, 

, 711-

12 (4th Cir. 1994); Fed. R. Crim. P. 52(b).        For Harvey to prevail,

he must establish that an error occurred, that it was plain, and

that it affected his substantial rights.            

United States v. Olano, 

(1993)).        Even if Harvey makes

this three-part showing, we will not exercise our discretion to

notice the error unless it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”           

no constructive amendment of the indictment

in this case, Harvey can not meet even the first plain error prong.

A constructive amendment occurs when “the government, through its

presentation of the evidence and/or its argument, or the district

court, through its instructions to the jury, or both, broadens the

bases for conviction beyond those charged in the indictment.”

United States v. Randall, 

, 203 (4th Cir. 1999).             Not

every variance between the indictment and proof rises to the level


                                   7
of a constructive amendment, however.             “When different evidence is

presented at trial but the evidence does not alter the crime

charged in the indictment, a mere variance occurs.”               

the Government’s evidence represented

more than a mere variance.               He argues that the Government’s

evidence did not prove a conspiracy, but established only that “the

Defendant bought some crack from Hood and the Defendant bought some

crack from Tyson.”        Brief of Appellant at 14.          In light of this,

Harvey contends that “the evidence at trial altered the charge in

Count One from a single conspiracy involving Hood and Freeman and

Tyson   and   [himself]       to     a   series    of     separate,     unrelated

transactions.”      

on a misunderstanding of

conspiracy law.

     To prove a conspiracy, the Government need show only an

agreement among conspirators, that the defendant knew of the

conspiracy,   and     that    the     defendant     voluntarily       joined   the

conspiracy.   United States v. Burgos, 

, 857 (4th Cir.

1996)(en   banc).         “[I]n    contemporary    drug    conspiracies,”      the

agreement element “contemplates and results in only a loosely-knit

association of members linked only by their mutual interest in

sustaining the overall enterprise of catering to the ultimate

demands of a particular drug consumption market.” United States v.

Banks, 

, 1054 (4th Cir. 1993).              Clearly, a jury could

conclude that evidence Harvey engaged in specific drug transactions


                                         8
proves an “agreement.” Moreover, a reasonable jury could also find

this    evidence      demonstrates      the       knowledge      and     voluntary

participation elements of the crime. See, e.g., 

.     Hence,    the   evidence    that     Harvey    participated      in    drug

transactions was not evidence of a different crime, but was instead

compelling    evidence    that   Harvey      agreed     to,     knew   about,    and

willingly participated in a drug conspiracy.

       Harvey mistakenly relies on two cases in which we found an

indictment had been constructively amended.              See 

; 

.                 In both, the defendant was

essentially convicted of a crime for which he was not charged.                   In

Randall, although the indictment charged only that the defendant

carried a gun while distributing illegal drugs, the jury was

instructed that it could find him guilty based on the uncharged

predicate     offense    of   possession      with     intent    to    distribute.

.        Similarly, in Floresca, although the

defendant was charged with violation of one portion of the witness

tampering statute, the jury was presented evidence about -- and

instructed on finding a violation of -- a separate part of that

statute.     

.            Here, by contrast, the jury

convicted Harvey of the same crime for which he was charged:

conspiracy.       That the conspiracy       was    proved     through a series of




                                       9
drug transactions (which, taken together, made up the conspiracy)

does not mean that the jury convicted Harvey of a different crime.



                               III.

     Harvey next contends the district court erred by admitting

evidence of prior bad acts in violation of Federal Rule of Evidence

404(b).    Specifically,   Harvey   complains   of   Jonothor   Fields’

testimony that he sold Harvey crack in “like 2000 and 2002,”

Gregory Bryant’s testimony that he sold crack to Harvey in 2002,

and Elmer Ray Vaughn’s testimony that he bagged and sold drugs with

Harvey in 1997 and 1998, that he sold drugs to Harvey in 2001, and

that he sold drugs with Harvey at a fair in 2001.      Harvey asserts

that the only purpose for this testimony was to demonstrate his

criminal propensity, and thus the evidence was non-probative and

prejudicial.

     Because he never articulated a Rule 404(b) objection at trial,

we review Harvey’s evidentiary objection for plain error.       Fed. R.

Evid. 103(a)(1); United States v. Brewer, 

, 1434 (4th

Cir. 1993).    Like his constructive amendment claim, Harvey’s bad

acts claim cannot survive the first step of this review because no

error occurred.

     As a threshold matter we reject Harvey’s contention that

individual drug transactions are “not intrinsic” to the charged

drug conspiracy.   See Brief for Appellant at 19.     To the contrary,


                                10
evidence of repeated buying and selling of drugs is inherent in the

crime of conspiring to distribute narcotics and possess them with

the intent to distribute.      Nor does the fact that Fields, Bryant,

and Vaughn were not named conspirators make this activity extrinsic

to the crime.     The indictment referred to other co-conspirators

“known and unknown to the Grand Jury.”

     To be sure, some of these transactions occurred before the

time frame covered by the indictment (2001-2003).             But “the mere

fact that the evidence involved activities occurring before the

charged   time   frame   of   the   conspiracy   does   not   automatically

transform that evidence into ‘other crimes’ evidence.”               United

States v. Kennedy, 

, 885 (4th Cir. 1994).                   Such

testimony should not be considered “other crimes” evidence if, as

here, it “arose out of the same . . . series of transactions as the

charged offense.”    

        Because these

transactions were substantially identical to the conspiracy alleged

in the indictment -- they occurred in the same residential areas of

Kinston, involved the same controlled substance, and were close in

time to the period charged -- we believe that they were part of the

same series of transactions.          Thus, they were not evidence of

“other crimes.”




                                     11
                                   IV.

     Harvey next asserts that the district court should have issued

two additional jury instructions.         Because his counsel did not

request either instruction at trial, we review the district court’s

failure to offer the instructions sua sponte for plain error.

United States v. Brown, 

, 698 n.13 (4th Cir. 2000);

Fed. R. Crim. P. 30(d).



                                    A.

     Harvey first argues that the district court erred in not

offering a special instruction about the credibility of accomplice

witnesses.   He maintains that because he denied being involved in

drug dealing, the court should have given a special cautionary

instruction about the danger of accomplice witnesses who claimed

otherwise.    This argument fails.

     “The    general   rule   is   that   accomplice   instructions   are

preferred when accomplices testify against defendants, due to the

inherent unreliability of this testimony, but the failure to give

such an instruction is not reversible error.”          United States v.

McCabe, 

, 955 (7th Cir. 1983) (emphasis added) (citing

Caminetti v. United States, 

(1917) (refusing to

overturn conviction where court failed to give requested accomplice

testimony instruction)).       Several circuits have recognized an

exception to this general rule where “the accomplice testimony is


                                    12
not supported by a minimum amount of corroboration.” 

authorities). However, we need not here decide whether

we would adopt that exception because in this case there was

substantial corroboration of the accomplices’ testimony: namely

Lieutenant Stevens’ testimony and the actual drugs he purchased

from Harvey.



                                        B.

     Harvey    also   asserts     the    district     court    erred    by    not

instructing the jury sua sponte on the affirmative defense of

“public authority.”        This defense allows a defendant to “seek[]

exoneration based on the fact that he reasonably relied on the

authority of a government official to engage in a covert activity.”

United States v. Fulcher, 

, 253 (4th Cir. 2001).                   A

defendant’s    reliance    must   be    objectively      reasonable,    and   the

official must possess actual –- not merely apparent –- authority.

claim of entitlement to this instruction

also fails.

     A   defendant    is   only   entitled    to    an    instruction    on    an

affirmative defense where “there exists evidence sufficient for a

reasonable jury to find in his favor.”          Mathews v. United States,

, 63 (1988).       Harvey’s asserted right to this defense

rests solely on his own testimony that (1) he “got the drugs

because [he] helped the officer named Williams”; (2) that a “dude


                                        13
named Tom, you know, that he couldn’t do the undercover buy that

might have occurred from a dude named Love.   So he asked me to help

him”; and that (3) the police dropped a traffic charge pending

against him after he helped make a drug buy.

     These unsupported assertions do not supply a jury with the

basis for a finding that Harvey was objectively reasonable in

relying on the actual authority of a law enforcement officer.

Indeed, Harvey’s own testimony casts serious doubt on his claim

that he relied on a police officer’s authority.   He testified that

he “guess[ed]” he was helping out the police, that he never

prepared any reports of his participation in a drug buy, that he

never got paid for helping out, and that he never even talked to

Lieutenant Stevens about his undercover status -- or the fact that

he was helping out -- because “[i]t was a [sic] in and out thing.”

Moreover, Lieutenant Stevens’ testimony that Harvey offered to make

up the shortage on their next transaction completely belies the

notion that Harvey was acting undercover for the September 2001

transaction.   Finally, there is no evidence in the record (aside

from Harvey’s assertion) about any officer Williams; the Government

is unaware of who he is or of any involvement he had in the case.




                                14
                                    V.

     Finally, Harvey contends that he should be resentenced because

the district court violated the Sixth Amendment by enhancing his

sentence based on facts not alleged in his indictment or found by

the jury.     See United States v. Booker, 

(2005).

Specifically, Harvey complains that the district court found him

responsible    for   over   1,500   grams   cocaine   base,   whereas   the

indictment alleged only that he was responsible for more than 50

grams.   The lower, alleged quantity would have translated into an

offense level of 32.        See United States Sentencing Guidelines

(“USSG”) § 2D1.1(c)(4) (2004).           For a defendant with Harvey’s

criminal history (category III), that would have resulted in a

range of 151 to 188 months.     

A (sentencing table).

Yet Harvey received a sentence of 360 months based on the larger

quantity found by the court.

     Because Harvey raised this objection at sentencing, we review

his claim for harmless error.       The Government bears the burden of

showing that any error was harmless beyond a reasonable doubt. The

Government does not even attempt to meet this burden.           Nor could

it; following our suggestion in 

& n.19,

the district court announced that it would have imposed a sentence

of 240 months if the mandatory Guidelines were not binding.

     In light of the fact that the district court enhanced Harvey’s

sentence based upon facts not alleged in the indictment or found by


                                    15
the jury, the Government concedes error.                    We therefore vacate

Harvey’s sentence and remand the case to the district court for

resentencing.       On remand the “district court shall first calculate

(after    making      the    appropriate       findings    of   fact)     the   range

prescribed by the guidelines.”           

.          The court

should then “consider that range as well as other relevant factors

set    forth   in   the     guidelines   and     those    factors   set    forth   in

§ 3553(a).”     

chooses to impose a sentence outside

that range, “it should explain its reason for doing so.” 

       For the foregoing reasons, the judgment of the district court

is

                                                                AFFIRMED IN PART,
                                                                 VACATED IN PART,
                                                                    AND REMANDED.




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