United States of America v. John T. Terry, a/k/a Tyree Terry

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-2575
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UNITED STATES OF AMERICA
v.
JOHN T. TERRY,
a/k/a Tyree Terry,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3:18-cr-00024-001)
District Judge: Honorable Kim R. Gibson
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 29, 2024
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Before: HARDIMAN, PHIPPS, and FREEMAN, Circuit Judges
(Filed: May 6, 2025)
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OPINION*
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PHIPPS, Circuit Judge.
A passenger in a car that was stopped for two minor traffic infractions received a
420-month prison sentence for four federal gun and drug offenses based on information
learned during that traffic stop. In this appeal, the passenger raises eight arguments: four
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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suppression challenges, two claims of prosecutorial misconduct, one challenge to the
admissibility of expert witness testimony, and one attack on the calculation of his sentence.
For the reasons below, the passenger’s challenges fail, and we will affirm the judgment of
the District Court.
I. F ACTUAL B ACKGROUND
Around 2:30 in the afternoon of April 4, 2018, Pennsylvania State Trooper Ryan
Marmol was driving westbound on the Pennsylvania Turnpike in Somerset County in light
snow flurries. With his cruiser in the left lane of a two-lane stretch of divided highway, he
observed a red Ford Taurus in front of him change lanes and then follow closely behind
another vehicle in the right lane. Marmol pursued the car and pulled it over for making an
unsafe lane change and tailgating. See 75 Pa. Cons. Stat. §§ 3309(1), 3310(a) (prohibiting
unsafe lane changes and tailgating, respectively).
Once both his cruiser and the Taurus were on the shoulder, Marmol approached the
passenger side of the car. Inside the car were two men, and Marmol asked the driver for
his license, which the driver produced while his hand was visibly shaking. The license
identified the driver as Gerald Terry. Marmol then asked the driver whether it was his car.
The driver responded that the Taurus belonged to a friend’s wife and handed the car’s
registration over to Marmol. Marmol then inquired about the men’s travel plans, and they
responded that they were going to a Narcotics Anonymous meeting in Pittsburgh where
Gerald would be speaking and that they would be returning to Philadelphia afterward.
Marmol also requested identification from the passenger. The passenger produced an ID,
and Marmol learned that he was John Terry.
Those interactions took about two minutes, and afterward Marmol returned to his
cruiser to run a background check. Within a minute, he learned that Gerald had previously

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been arrested. He also discovered that the vehicle’s registered owner, a man named Kelli
Royster, had previously committed drug and firearms offenses.
At that point, less than three minutes into the stop, those observations prompted
Marmol to call for backup. While waiting for backup to arrive, Marmol discovered that
both Gerald and John Terry had criminal histories including robbery, assault, and firearms
offenses and that Gerald’s criminal history also included drug possession with intent to
deliver. And upon conducting a further search of the registered owner, Royster, Marmol
discovered that he was on supervised release for conspiracy to distribute cocaine base and
for unlawful possession of a firearm by a felon.
When the second trooper arrived approximately fourteen minutes later, Marmol re-
approached the Taurus and requested that the driver exit, but both men got out of the car.
After telling Gerald that he would give only an oral warning for the traffic infraction,
Marmol mentioned that he knew of Gerald’s extensive criminal history, and he asked
whether there was “anything illegal in the car.” Day 2 Trial Tr. 51:5–10 (Suppl. App. 240).
Gerald replied, “[n]o,” and Marmol asked if he could search the car. Id. Gerald visibly
nodded and responded, “Yeah, yeah.” Suppression Hr’g Tr. 38:15–17 (App. 217).
After patting down both men and leaving them under the watch of the second trooper
by the side of the road, Marmol began searching the car. When he looked inside the glove
compartment, Marmol noticed that its door dropped down farther than normal. Upon
inspecting the undercarriage of the dashboard, Marmol discovered a suspicious box – a
hidden aftermarket compartment – welded into place where the airbag would normally be
mounted. He had learned from specialized training that hidden aftermarket compartments,
also known as ‘traps,’ were used to store contraband. About one and a half hours after
initiating the traffic stop, Marmol pried open that box and found a handgun and

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approximately three kilograms of a white powder, which later tested positive for cocaine
and methamphetamine. He also took two cell phones from the car: an iPhone and a
Samsung Galaxy.
The officers then arrested and Mirandized both men, who are brothers. After they
were transported to the State Police barracks in Somerset, the passenger, John Terry,
according to Marmol, took “responsibility for . . . the red Ford Taurus.” Id. at 67:9–10
(App. 246); see also Day 2 Trial Tr. 92:25–93:1 (Suppl. App. 281–82) (describing how
John Terry “related that he was responsible for the vehicle”). Marmol subsequently filed
a criminal complaint against him. The two cell phones seized from the car later prompted
interest at the federal level, and information obtained from those phones pursuant to a
search warrant linked John Terry to a drug dealer in Pittsburgh.
II. P ROCEDURAL H ISTORY
In October 2018, federal prosecutors went before a grand jury in Johnstown,
Pennsylvania, to indict John Terry on drug and gun charges. See 18 U.S.C. § 3231. During
those proceedings, FBI Special Agent James Simpson testified about the investigation that
he inherited from Trooper Marmol. In doing so, Simpson stated that Terry had taken
responsibility for the drugs and gun found in the car. The grand jury returned a three-count
indictment and later a four-count superseding indictment that charged Terry with
possession with intent to distribute a controlled substance, see 21 U.S.C. § 841(a)(1),
conspiracy to distribute a controlled substance, see id. § 846, unlawful possession of a
firearm by a felon, see 18 U.S.C. § 922(g)(1), and unlawful possession of a firearm in
furtherance of drug trafficking, see id. § 924(c)(1)(A).
As part of his pretrial defense, Terry moved to suppress evidence that he asserted
had been obtained in violation of the Fourth, Fifth, and Sixth Amendments. He argued that

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the vehicle stop was not justified, that the vehicle search that produced the drugs and the
gun was illegal, and that he was not properly Mirandized before he made his statement at
the police station about taking responsibility for the red Taurus. The District Court rejected
those arguments and denied the motion. United States v. Terry, 2019 WL 2176330, at *29–
30 (W.D. Pa. May 20, 2019).
In addition to his suppression motions, Terry moved to sever and bifurcate the trial
so that his gun possession charges and status as a felon would not taint the drug charges.
See Fed. R. Crim. P. 14(a) (permitting courts to “order separate trials of counts, sever the
defendants’ trials, or provide any other relief that justice requires”). He proposed a first
phase in which the jury would decide the drug charges alone. Then, in a second trial, the
jury would decide whether Terry knowingly possessed the firearm, with evidence of his
felony record withheld. And finally, only if the jury found against Terry on those elements
would the government be allowed to present his criminal history to prove the final element
of the felon-in-possession charge. The District Court granted that motion in part, allowing
bifurcation of the trial so that the jury would first decide the drug charges, without hearing
evidence about the gun or Terry’s status as a felon, and then the jury would separately
consider the gun charges in light of Terry’s criminal history. After the jury returned guilty
verdicts with respect to the two drug charges, however, Terry sought a bench trial for the
remaining two firearms charges. After accepting Terry’s waiver of his right to a jury trial
on the remaining charges, the District Court found Terry guilty of both gun offenses. See
id. 23(a), (c).
The District Court then calculated Terry’s sentence. Because the roughly three
kilograms of drugs found in the car tested positive for both methamphetamine and cocaine,
Terry’s base offense level under the Sentencing Guidelines was 32. See U.S. Sent’g

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Guidelines Manual § 2D1.1(c)(4), (c)(7) (U.S. Sent’g Comm’n 2023) (providing a base
offense level of 32 for between 1.5 and five kilograms of methamphetamine but an offense
level of 26 for between two and 3.5 kilograms of cocaine); id. § 2D1.1, Note (A) to the
Drug Quantity Table (instructing the use of the greater offense level where a mixture of
drugs tests positive for more than one drug). Terry’s prior convictions placed him in
criminal history Category III. Coupled with his criminal history, the offense level
associated with Terry’s two drug convictions and two gun convictions in this case yielded
an advisory Guidelines range of 151 to 188 months’ incarceration.
That advisory range gave way, however, to two statutory provisions that impose
mandatory minimum sentences. First, because the three-kilogram mixture recovered from
the car contained detectable amounts of methamphetamine (in addition to cocaine), the
offenses based on that mixture – possession with intent to distribute and conspiracy –
carried ten-year minimum sentences. See 21 U.S.C. § 841(a)(1) (criminalizing possession
of controlled substances with intent to distribute); id. § 841(b)(1)(A)(viii) (mandating a
ten-year minimum sentence for possessing more than fifty grams of a “substance
containing a detectable amount of methamphetamine”); id. § 846 (criminalizing conspiracy
to violate § 841(a)(1) and mandating the same penalties for committing conspiracy as for
committing the object offense).1 Second, because Terry had a prior conviction for
knowingly possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), his conviction for
possession of a weapon in furtherance of a drug offense carried a mandatory consecutive
sentence of 300 months, see id. § 924(c)(1)(C)(i), (D)(ii). Thus, despite the advisory
1 If the three-kilogram mixture had contained only cocaine, then a five-year mandatory
minimum would have applied to the charges based on the mixture. See 21 U.S.C.
§ 841(b)(1)(B)(ii) (mandating a five-year minimum sentence for possessing more than 500
grams of cocaine); id. § 846 (mandating the same penalties for conspiracy to violate
§ 841(a)(1) as for committing the object offense).

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Guideline range of between 151 and 188 months’ imprisonment, Terry’s statutory
minimum prison sentence was 420 months – and that is the prison term the District Court
imposed.
On appeal, Terry challenges several aspects of his arrest, indictment, conviction,
and sentencing. See 28 U.S.C. § 1291.
III. D ISCUSSION
A. The Suppression Challenges
1. The Challenge to the Initial Traffic Stop
John Terry argues that Trooper Marmol lacked reasonable suspicion of unlawful
activity required by the Fourth Amendment for the traffic stop. Specifically, he attacks
that stop as pretextual and contends that Marmol was subjectively unreasonable in making
the stop. But an objective standard governs the reasonableness of a Fourth Amendment
seizure. See Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play
no role in ordinary, probable-cause Fourth Amendment analysis.”); cf. Illinois v. Wardlow,
528 U.S. 119, 123 (2000) (explaining that a Terry stop must be supported by “at least a
minimal level of objective justification” for a reasonable suspicion of criminal activity
(emphasis added)). And under that objective standard, both the dashcam footage and
Marmol’s testimony provide objectively reasonable suspicion sufficient to initiate the stop
– the red Taurus appeared to violate two Pennsylvania traffic rules: the prohibitions on
unsafe lane changes, see 75 Pa. Cons. Stat. § 3309(1), and on tailgating, see id. § 3310(a).
It was therefore not clear error for the District Court to conclude as a matter of fact that
Gerald Terry had committed those traffic offenses, and thus on de novo review of the legal
determination, the District Court did not err in concluding that Marmol had reasonable
suspicion to stop the vehicle. See United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012)
(“We review findings of fact for clear error, but we exercise [de novo] review over legal

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determinations.”); United States v. Thompson, 772 F.3d 752, 758 (3d Cir. 2014)
(“[Reasonable] suspicion is . . . less demanding than . . . probable cause.”) (internal
citations omitted).
2. The Challenge to Prolonging the Stop
Terry also contends that the traffic stop was improperly extended because Marmol
lacked the requisite reasonable suspicion to investigate any crime other than the traffic
offenses for which the vehicle was pulled over. Under the Fourth Amendment, “a traffic
stop ‘can become unlawful if it is prolonged beyond the time reasonably required to
complete th[e] mission’ of issuing a warning ticket.” Rodriguez v. United States, 575 U.S.
348, 354–55 (2015) (alteration in original) (quoting Illinois v. Caballes, 543 U.S. 405, 407
(2005)). The mission of a traffic stop includes collecting identifying information,
conducting a search of the driver’s criminal status, and inspecting the vehicle’s registration.
See id. at 355 (“Typically such inquiries involve checking the driver’s license, determining
whether there are outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance.”); Delaware v. Prouse, 440 U.S. 648, 658–59 (1979);
4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.3(c)
(6th ed. Nov. 2024 update) [hereinafter LaFave] (“The bare essentials of a ‘routine traffic
stop’ consist of causing the vehicle to stop, explaining to the driver the reason for the stop,
verifying the credentials of the driver and the vehicle, and then issuing a citation or a
warning.”); cf. id. (explaining that officers are typically justified in doing basic checks on
the motorist’s criminal status, “given the fact that traffic stops are ‘especially fraught with
danger to police officers,’ . . . even if it does ‘prolong’ the traffic stop” (emphasis removed)
(quoting Rodriguez, 575 U.S. at 356–57)). And if, in fulfilling that mission for a traffic
stop, an officer obtains a reasonable suspicion of additional criminal activity, then the

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officer may investigate the suspicion of criminal activity. See Rodriguez, 575 U.S. at 355;
United States v. Stewart, 92 F.4th 461, 467 (3d Cir. 2024).
Here, on de novo review, the moment when the traffic stop was measurably
extended occurred three minutes into the stop. At that point, Marmol had observed the
men’s visible nervousness, learned of their criminal histories as well as of the status of the
registered owner of the car, and debunked Gerald’s claim that he was driving a car owned
by a friend’s wife. That information provided him with reasonable suspicion of criminal
activity – and also motivated him to call for backup. See Stewart, 92 F.4th at 471 (affirming
the extension of a traffic stop into a criminal investigation upon the development of
reasonable suspicion); United States v. Arvizu, 534 U.S. 266, 274 (2002) (explaining that
reasonable suspicion requires more than a “mere ‘hunch’” but “considerably” less than a
preponderance of the evidence (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968))). Because
he was justified in extending the stop for the time needed to “diligently pursue[] a means
of investigation that was likely to confirm or dispel [his] suspicions quickly,” Marmol did
not violate Terry’s Fourth Amendment rights by waiting for backup to arrive or
investigating his suspicions once it did. United States v. Sharpe, 470 U.S. 675, 686 (1985).
3. The Challenge to the Search of the Vehicle’s Interior
Terry also advances two alternative theories of Fourth Amendment violations with
respect to the search of the Taurus. He challenges the District Court’s conclusion that the
search was voluntary because Gerald said “yeah, yeah” and nodded in response to Trooper
Marmol’s request. Terry, 2019 WL 2176330, at *21 (citing Suppression Hr’g Tr. 38:15–
17 (App. 217)). Alternatively, he argues that the search exceeded the scope of any
voluntary consent.

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To proceed with either challenge, however, Terry must first establish standing under
the Fourth Amendment. Passengers have standing to challenge the stop of the vehicle
because they are stopped as well, see United States v. Mosley, 454 F.3d 249, 253 (3d Cir.
2006), but absent an ownership interest in the vehicle, passengers generally have no
expectation of privacy inside a vehicle, so they do not have standing to contest searches of
the interior, see United States v. Burnett, 773 F.3d 122, 131–32 (3d Cir. 2014). A narrow
exception exists for people who borrow vehicles and have responsibility over or control of
the vehicle at the time of search. See, e.g., United States v. Baker, 221 F.3d 438, 442–43
(3d Cir. 2000).
On appeal, Terry invokes that exception based on his statements at the barracks that
he had responsibility for the vehicle. But at the time of the search, he gave no indication
that the car was in his control – he did not drive it or claim ownership of it.
Even if Terry has Fourth Amendment standing to challenge the vehicle search, see
Baker, 221 F.3d at 442–43, his own conduct during the stop belied any reasonable
expectation of privacy in the vehicle or any particular compartment within that vehicle.
After Gerald’s initial consent, Terry did not object, and therefore Marmol could reasonably
rely upon Gerald’s express unqualified consent to search the vehicle. See United States v.
Anderson, 859 F.2d 1171, 1177 (3d Cir. 1988) (explaining that to “[stand] by and watch[]
without objection . . . is completely inconsistent with the contention that [one has] an
expectation of privacy”); LaFave, § 8.3(g) (explaining that “the claim of authority [to
consent to a search] can be reasonably relied upon by the police precisely because of the
silence of another person present who could be expected to object were that claim in
error”).

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Terry’s alternative argument that the search of the car’s passenger-side dashboard
exceeded the consent given by Gerald also fails. Neither Terry nor Gerald disputed the
unconditional consent given for the vehicle search – Gerald’s initial consent was
unqualified, and at no point during the search did either brother attempt to limit the search.
See Anderson, 859 F.2d at 1177. Accordingly, the District Court did not err in denying
Terry’s suppression motion.
4. The Miranda-Based Challenge to Terry’s Statement at the Barracks
in Which He Took Responsibility for the Car
Terry next raises a new suppression argument: he contends that his statement at the
barracks that he had responsibility for the vehicle should have been suppressed because he
was not properly Mirandized. In making this assertion, Terry acknowledges that he was
Mirandized once at the barracks prior to interrogation; his point is that a second warning
was required because Marmol’s question came after that formal interrogation had ended.
The problem for Terry is that “a suppression argument raised for the first time on appeal is
forfeited,” United States v. Scarfo, 41 F.4th 136, 169 (3d Cir. 2022), and Terry did not
present an argument based on the “same facts” and “same legal rule” to the District Court.
United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013). In District Court, he sought
suppression of his statements at the roadside stop because at that time he had not received
any Miranda warning; now he tries to suppress his statement made at the barracks for not
renewing the Miranda admonition that was given when he was taken into custody. Those
arguments do not rest on the same facts, and without attempting to overcome that waiver
through a showing of good cause, Terry’s challenge is barred.
B. The Prosecutorial Misconduct Allegations
Terry next makes two accusations of prosecutorial misconduct. First, he argues that
the indictment should have been dismissed because the prosecution knowingly presented

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false evidence to the grand jury. Second, he contends that his convictions should be
vacated because the prosecution improperly ‘vouched’ for the credibility of its witnesses.
1. The Challenge to Special Agent Simpson’s Grand Jury Testimony
Terry’s argument that the indictment should have been dismissed due to
prosecutorial misconduct attempts to exploit an ambiguity in Marmol’s police report. That
report states that Terry admitted responsibility for the vehicle while at the barracks. But
when Special Agent Simpson testified before the grand jury, he stated that Terry admitted
responsibility at the barracks for the drugs and the gun. Terry contends that Simpson
mischaracterized his admission because he took responsibility for only the car – not its
contents.
Although there are multiple shortcomings to Terry’s argument – he did not raise the
issue before trial, see Fed. R. Crim. P. 12(b)(3)(A)(v), and he has not shown that Simpson’s
statement to the grand jury tainted the petit jury, see United States v. Console, 13 F.3d 641,
672 (3d Cir. 1993) (citing United States v. Mechanik, 475 U.S. 66, 70 (1986)) – it is
appropriate to resoundingly reject the substance of such a serious allegation of
prosecutorial misconduct. Prosecutorial misconduct by the knowing presentation of false
testimony requires evidence of a “willful intent to provide false testimony”; by contrast,
“confusion, mistake, or faulty memory” is not enough. United States v. Dunnigan,
507 U.S. 87, 94 (1993) (detailing elements of perjury). Compare Napue v. Illinois,
360 U.S. 264, 269 (1959) (holding that a prosecutor’s knowing presentation of false
testimony violates the Constitution), with 18 U.S.C. § 1623(a) (criminalizing knowingly
making false statements to grand juries while under oath). Here, the inference made by
Simpson – that Terry, by taking responsibility for the car, after drugs and a gun were
discovered inside it, also took responsibility for the drugs and the gun – was contextually

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justified. Indeed, Marmol, who heard Terry make the statement, testified at the suppression
hearing that he understood Terry’s statement that “he was responsible for the vehicle” to
mean that Terry “was responsible for the vehicle and everything inside.” Suppression Hr’g
Tr. 147:20–23 (App. 326). Both officers rationally and naturally construed Terry’s
statements, and permitting Simpson to testify to his understanding is far removed from
prosecutorial misconduct.
2. The Assertion of Improper Vouching
Terry also contends that the prosecutor engaged in two forms of misconduct during
the closing. First, Terry asserts that the prosecution improperly vouched for the credibility
of two of its witnesses – Marmol and Simpson. Second, Terry argues that it was
misconduct for the prosecutor to invite the jury to compare Simpson’s testimony with
exhibits that had been excluded. Terry’s counsel did not object to either instance of alleged
misconduct at the time, so his challenges are reviewed for plain error. See United States v.
Welshans, 892 F.3d 566, 573 (3d Cir. 2018) (reviewing unpreserved allegations of
prosecutorial misconduct for plain error).2
The prosecutor’s statements as to Marmol’s and Simpson’s credibility were based
on record evidence. He referenced Marmol’s nine-year tenure with the Pennsylvania State
Police and Simpson’s over-ten-year tenure with the FBI as bases for their credibility. And
because both of those facts were in the record, and not the product of only the prosecutor’s
personal knowledge, they do not constitute improper vouching. See United States v. Lore,
2 To prevail under plain error review, an appellant must demonstrate (1) that an error
occurred – evaluated under the standard of review that error would have received if it had
been properly preserved, see United States v. Adair, 38 F.4th 341, 355–56 (3d Cir. 2022);
(2) that the error was “plain”; (3) that it affected “substantial rights”; and (4) that it
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting in the last instance United States
v. Young, 470 U.S. 1, 15 (1985)).

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430 F.3d 190, 211 (3d Cir. 2005) (limiting improper vouching claims to the assurance of a
government witness’s credibility based on the prosecutor’s “claimed personal knowledge
or other information not contained in the record”). Without establishing an error, this
challenge fails to satisfy plain-error review.
Terry’s second claimed instance of prosecutorial misconduct – the invitation for the
jury to view excluded exhibits – also fails on plain-error review. One of the showings
required for plain error is that there would have been a reasonable probability of a different
outcome. See Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). Yet here, Terry
does not explain how without the invitation from the prosecutor to view excluded evidence,
which the jury could not and did not accept, there would have been a reasonable probability
that Terry would not have been convicted.
C. The Challenge to Special Agent Simpson’s Expert Testimony
Terry next asserts that the District Court erred by allowing Special Agent Simpson
to testify beyond his expertise. The portions of Simpson’s testimony that Terry now
contests arose in the context of a dispute over whether Terry owned the iPhone found in
the car. Terry testified that the iPhone was not his. But Simpson opined that he believed
the phone belonged to Terry. Before eliciting that opinion from Simpson, the prosecutor
represented that the questions would not require “getting into specifics about file paths and
expertise as to analysis,” but instead would rely on “a basic understanding of incoming,
outgoing” communications from an iPhone. Day 3 Trial Tr. 46:14–16 (Suppl. App. 441).
Nonetheless, at the outset of that line of inquiry, Terry objected by asserting that the
opinion “would be expert opinion, so it’s improper as he is not qualified to do so.” Id.
at 46:19–20. The District Court overruled that objection on the grounds that “it’s not expert

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testimony regarding metadata, but just basically being able to glean whether something is
sent or received.” Id. at 46:23–47:1 (Suppl. App. 441–42).
That ruling by the District Court was not an abuse of discretion because Simpson’s
opinion was not based on “specialized knowledge” but rather on the contents of several
text messages on the phone. Fed. R. Evid. 701(c). One was sent to a number belonging to
Gerald in which the iPhone’s user wrote, “Other phone died. It’s me big bro.” Day 3 Trial
Tr. 61:8–9 (Suppl. App. 456). In another communication, the iPhone’s user directed
Gerald to “[m]eet me at our parents[’] house.” Id. at 96:1 (Suppl. App. 491). And another
text stated, “I couldn’t find my . . . ID, so . . . I got a duplicate” and then attached a photo
of a state identification card belonging to John Terry. Id. at 42:6–8 (Suppl. App. 437). The
contents of those messages readily allow the inference that Terry owned the iPhone, and
without Simpson ever providing a legal opinion that Terry was guilty, the District Court
was well within its discretion to permit Simpson’s testimony on these topics. See United
States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000) (applying abuse-of-discretion
review to preserved evidentiary rulings).
D. The Sentencing Challenge
Terry also argues that the District Court erred by sentencing him based on
possession of methamphetamine when he was convicted of possession of a substance
containing both methamphetamine and cocaine. Compare 21 U.S.C. § 841(b)(1)(A)(viii)
(ten-year mandatory minimum for fifty or more grams of methamphetamine), with id.
§ 841(b)(1)(B)(ii) (five-year mandatory minimum for 500 or more grams of cocaine).
According to Terry, under United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001), the
imposed sentence must be based on the lesser of the two charged drugs. That overextends
Barbosa. In that case, the drug quantity was known, but drug identity was not, so based

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on the rule of lenity and Apprendi principles, this Court concluded that the “failure to
submit drug identity for a jury determination” was error. Id. at 456. But here, the drug
identity issue was presented to the jury, and the jury found beyond a reasonable doubt that
the mixture contained detectable amounts of both methamphetamine and cocaine.
Accordingly, the District Court did not err in sentencing Terry based on a statute that
prohibits the possession of “500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine.” 21 U.S.C. § 841(b)(1)(A)(viii).
C ONCLUSION
For the foregoing reasons, we will affirm the District Court’s judgment.

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