USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 1 of 54

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4123

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

MONTANA BARRONETTE,

Defendant – Appellant.

No. 19-4160

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

BRANDON WILSON, a/k/a Ali,

Defendant – Appellant.

No. 19-4180

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

JOHN HARRISON, a/k/a Binkie,

Defendant – Appellant. USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 2 of 54

No. 19-4181

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

LINTON BROUGHTON, a/k/a Marty,

Defendant – Appellant.

No. 19-4328

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

TERRELL SIVELLS,

Defendant – Appellant.

No. 19-4408

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

TAURUS TILLMAN,

Defendant – Appellant.

2 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 3 of 54

No. 19-4562

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

TIMOTHY FLOYD, a/k/a Tom Rod,

Defendant – Appellant.

No. 19-4726

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

DENNIS PULLEY, a/k/a Denmo,

Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, Senior District Judge. (1:16-cr-00597-CCB-1; 1:16-cr-00597-CCB- 10; 1:16-cr-00597-CCB-6; 1:16-cr-00597-CCB-7; 1:16-cr-00597-CCB-2; 1:16-cr-00597- CCB-3; 1:16-cr-00597-CCB-12; 1:16-cr-00597-CCB-8)

Argued: May 4, 2022 Decided: August 18, 2022

Before NIEMEYER and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.

Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, and 19-4562, affirmed; No. 19-4726, affirmed in part, reversed in part, and remanded for further proceedings by

3 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 4 of 54

published opinion. Senior Judge Floyd wrote the opinion in which Judge Niemeyer and Judge Diaz joined.

ARGUED: Steven M. Klepper, KRAMON & GRAHAM, PA, Baltimore, Maryland; Alfred Guillaume, III, LAW OFFICE OF ALFRED GUILLAUME III, Washington, D.C., for Appellants. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Michael Lawlor, BRENNAN MCKENNA & LAWLOR, Greenbelt, Maryland, for Appellant Montana Barronette. Christopher C. Nieto, NIETO LAW OFFICE, Baltimore, Maryland, for Appellant Brandon Wilson. Jenifer Wicks, BLIND JUSTICE LEGAL SERVICES, Takoma Park, Maryland, for John Harrison. Stuart A. Berman, LERCH, EARLY & BREWER, CHTD., Bethesda, Maryland, for Appellant Terrell Sivells. Erek L. Barron, WHITEFORD, TAYLOR & PRESTON LLP, Rockville, Maryland, for Appellant Dennis Pulley. Richard B. Bardos, SCHULMAN, HERSHFIELD & GILDEN, P.A., Baltimore, Maryland, for Appellant Taurus Tillman. Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, PC, Baltimore, Maryland, for Appellant Timothy Floyd. Jonathan F. Lenzner, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

4 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 5 of 54

FLOYD, Senior Circuit Judge:

Appellants Montana Barronette, Brandon Wilson, Linton Broughton, John

Harrison, Terrell Sivells, Taurus Tillman, Timothy Floyd, and Dennis Pulley (collectively,

Appellants) operated for around seven years an enterprise known as “Trained to Go” (TTG)

within one of West Baltimore’s neighborhoods. Appellants distributed drugs and engaged

in countless acts of violence using firearms. They exercised their constitutional right to a

jury trial and were convicted for their actions, including for conspiring to violate the

Racketeer Influenced and Corrupt Organizations Act (RICO). They now bring numerous

challenges to their convictions and sentences, including their right to a public trial, the

evidence admitted at trial, and more. We affirm Appellants’ convictions and sentences on

all fronts, save one. We reverse Pulley’s § 922(g)(1) conviction, vacate the judgment as to

him, and remand for further proceedings consistent with our opinion.

I.

A.

Evidence at trial, viewed in the light most favorable to the government, United

States v. Burgos,

(4th Cir. 1996) (en banc), showed the following. From

about 2010 to 2017, Appellants operated TTG in the Sandtown neighborhood of West

Baltimore. Barronette and Sivells served as leaders. Over the course of seven years,

Appellants and TTG distributed heroin, cocaine, marijuana, and other controlled

substances. In addition to distributing drugs, the organization’s members, including

Appellants, engaged in violent acts using firearms, including murder, kidnapping, and

5 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 6 of 54

assault. Other criminal organizations, including a group known as “Young Go Getters”

(YGG) solicited TTG members and associates to engage in murder-for-hire schemes.

Appellants, in varying capacities, were connected to the murders of Brian Chase, Marquez

Jones, Lamont Randall, Gerald Thompson, Jacqueline Parker, Domonique Harris, Antonio

Addison, and Christopher Pennington. The government also introduced evidence at trial

of TTG’s unfulfilled plans to murder others.

Law enforcement began surveilling TTG, using informants to conduct controlled

buys, and acquiring warrants to wiretap TTG members’ phones. On February 5, 2016, a

tracking order was issued for a cellular phone used by Sivells and referred to as TT4. A

wiretap order issued for that phone on March 3, 2016. On April 5, 2016, the government

filed an application for a warrant authorizing the interception of wire communications to

and from another cellular telephone used by Sivells and referred to as TT5. The wiretap

calls showed Appellants communicating to distribute drugs and to track people who they

were conspiring to murder. During the course of surveillance, officers observed Barronette

and Sivells conducting drug transactions. Law enforcement also conducted controlled

purchases of drugs from the group. In light of this surveillance, police acquired search and

seizure warrants for a variety of addresses connected to Appellants, including a warrant

issued on August 4, 2016, for a search of the premises at 2307 Avalon Street in Baltimore.

B.

On June 29, 2017, a grand jury in the District of Maryland returned a superseding

indictment containing RICO conspiracy and other charges against Barronette, Wilson,

6 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 7 of 54

Harrison, Broughton, Sivells, Tillman, Floyd, and Pulley. On June 7, 2018, the grand jury

returned a second superseding indictment.

Count One charged all Appellants with conspiring to violate RICO,

(d), for their actions as TTG members. The government alleged that Appellants

conspired to sell heroin, cocaine, and marijuana and to enrich and protect themselves and

TTG through murder, assault, robbery, kidnapping, and other acts of violence. The

indictment listed predicate offenses as murder, attempted murder, and conspiracy to

commit murder under Maryland law; murder-for-hire under

; witness

tampering and retaliation under

& 1513; conspiracy to distribute and

possession with intent to distribute controlled substances, in violation of

and 841; and robbery and robbery conspiracy under the Hobbs Act,

, and

Maryland law. Count One set forth twenty-one overt acts, including drug sales and

murders.

Count Two charged Barronette and Harrison with murdering three individuals to

maintain and increase their positions in TTG, in violation of

(a)(1). 1

Count Three charged all Appellants with a narcotics conspiracy, from 2010 through

the date of the original indictment in January 2017, involving one kilogram or more of

heroin, as well as cocaine and marijuana, in violation of

.

1 The government dismissed Count Two on the first day of the trial.

7 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 8 of 54

Counts Four, Five, and Six charged Sivells and Tillman with possession with intent

to distribute heroin on specific dates in 2016, in violation of

and

.

Counts Seven, Eight, Nine, and Ten charged Wilson and Pulley with possessing

firearms in furtherance of the narcotics distribution conspiracy, in violation of

(c), and while having previously been convicted of a crime punishable by

imprisonment for a term exceeding one year, in violation of

(g).

The district court denied Appellants’ pretrial motions to dismiss the RICO

conspiracy charge and to suppress evidence and statements obtained through electronic

surveillance and law enforcement interrogation.

The jury trial commenced on September 17, 2018. Ten days into the trial, the district

court advised counsel that it would authorize the marshals to limit the number of spectators

in the courtroom to twenty-five people if the marshals had security concerns and that

additional spectators would be sent to an overflow room. The district court overruled

Harrison and Tillman’s objections to this, citing “extremely serious security concerns,”

J.A. 1109.2, including fights in the gallery, knives being found in the gallery, a table in the

lobby of the courtroom being vandalized with TTG’s name, the fact that government

witnesses in the case had been murdered, and an alleged request from Barronette while

imprisoned for people to pack the courtroom when government witnesses were testifying.

After twenty-six days of trial, the jury convicted Appellants on all charges. The jury

also issued special verdicts. It found that Barronette conspired to commit the murders of

Brian Chase, Marquez Jones, Lamont Randall, Gerald Thompson, Jacqueline Parker,

8 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 9 of 54

Antonio Addison, and an unknown individual. However, the jury declined to find that

Barronette conspired to commit one murder—that of David Moore. The jury returned a

special verdict that Sivells conspired to commit the murder of Antonio Addison. It found

that Harrison conspired to commit the murders of Brian Chase, Lamont Randall, Gerald

Thompson, Jacqueline Parker, and Dominique Harris. The jury returned a special verdict

that Broughton conspired to commit the murder of an unknown individual. It found that

Pulley conspired to commit the murder of Christopher Pennington. The jury returned a

special verdict that Floyd conspired to commit the murder of Antonio Addison. On the

narcotics conspiracy charge, the jury found that 1,000 grams or more of heroin, along with

quantities of cocaine and marijuana, were foreseeable to all Appellants.

On February 15, 2019, Barronette received a sentence of concurrent terms of life

imprisonment on Counts One and Three, concurrent five-year terms of supervised release,

and a $200 special assessment.

On March 7, 2019, the district court sentenced Wilson to concurrent terms of 240

months’ (Counts One and Three) and 120 months’ (Count Eight) imprisonment, and a 60-

month consecutive term of imprisonment (Count Seven), concurrent five-year (Counts One

and Three) and three-year (Counts Seven and Eight) terms of supervised release, and a

$400 special assessment.

On March 15, 2019, Broughton was sentenced to concurrent terms of 360 months’

imprisonment on Counts One and Three, concurrent five-year terms of supervised release,

and a $200 special assessment.

9 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 10 of 54

Also on March 15, 2019, the district court sentenced to Harrison to concurrent terms

of life imprisonment on Counts One and Three, concurrent five-year terms of supervised

release, and a $200 special assessment.

On April 26, 2019, Sivells was sentenced to concurrent terms of imprisonment of

life (Counts One and Three) and 30 years (Count Four), concurrent terms of supervised

release of five years (Count One), ten years (Count Three), and six years (Count Four), and

a $300 special assessment.

On May 23, 2019, the district court sentenced Tillman to concurrent terms of 300

months’ (Counts One and Three) and 240 months’ (Counts Five and Six) imprisonment,

concurrent five-years terms of supervised release, and a $400 special assessment.

On July 19, 2019, Floyd received a sentence of concurrent terms of 360 months’

imprisonment (Counts One and Three), concurrent five-year terms of supervised release,

and a $200 special assessment.

On September 20, 2019, the district court sentenced Pulley to concurrent terms of

360 months’ (Counts One and Three) and 120 months’ (Count Ten) imprisonment, and a

60-month consecutive term of imprisonment (Count Nine), concurrent five-year (Counts

One, Three, and Nine) and three-year (Count Ten) terms of supervised release, and a $400

special assessment.

C.

Appellants bring fifteen claims on appeal. All contest that the district court erred in

refusing to dismiss the RICO conspiracy charge in Count One on grounds that the RICO

10 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 11 of 54

conspiracy statute is unconstitutionally vague. They also all claim that the district court

violated their right to a public trial, and that there was insufficient evidence in support of

Count One and that the drug conspiracy involved one kilogram or more of heroin.

Sivells and Floyd claim the district court erred in denying their motions to suppress

evidence gathered from electronic surveillance and that there was insufficient evidence for

the jury’s special verdict that they conspired to murder Antonio Addison. Sivells also

contests the denial of his motion to suppress statements made to law enforcement after his

arrest.

Wilson and Pulley contend that their sentences under 18 U.S.C § 922(g)(1) should

be vacated in light of Rehaif v. United States,

(2019). Wilson separately

contends there was insufficient evidence that he possessed a firearm in furtherance of a

drug conspiracy.

Barronette and Pulley assert that the district court abused its discretion in denying

their motion for a mistrial based on prejudicial witness testimony.

Broughton argues there was insufficient evidence for the special verdict that he

conspired to murder unknown individuals.

Finally, Sivells, Broughton, and Floyd assert that their sentences are procedurally

and substantively unreasonable.

We reject all of these claims except that we agree with Pulley that his conviction

under § 922(g)(1) should be vacated under Rehaif.

11 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 12 of 54

II.

We begin with Appellants’ argument that the district court erred in refusing to

dismiss the RICO conspiracy charge in Count One because the RICO conspiracy statute is

unconstitutionally vague in light of the Supreme Court’s decision in United States v. Davis,

(2019). We reject Appellants’ argument as we have already upheld the

constitutionality of the RICO conspiracy statute, and Davis does not disturb our ruling.

We review vagueness challenges de novo. United States v. Sun,

(4th Cir. 2002). “A statute is unconstitutionally vague if it ‘fails to give a person of

ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’”

United States v. Bennett,

(4th Cir. 1993) (quoting United States v.

Harriss,

(1954)). Thus, “the void-for-vagueness doctrine requires that

a penal statute define the criminal offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Kolender v. Lawson,

(1983).

“We consider whether a statute is vague as applied to the particular facts at issue, for ‘a

[defendant] who engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others.’” Holder v. Humanitarian L.

Project,

, 18–19 (2010) (brackets omitted) (quoting Vill. of Hoffman Ests. v.

Flipside, Hoffman Ests., Inc.,

(1982)).

Appellants argue that the phrases “pattern of racketeering activity” and “enterprise”

are unconstitutionally vague. Appellants are not the first to bring a vagueness challenge

against the RICO conspiracy statute. In a concurrence in H.J. Inc. v. Northwestern Bell

12 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 13 of 54

Telephone Co., which adopted a new test for finding a “pattern of racketeering,” Justice

Scalia contemplated such a challenge to the RICO conspiracy statute:

No constitutional challenge to this law has been raised in the present case, and so that issue is not before us. That the highest Court in the land has been unable to derive from this statute anything more than today’s meager guidance bodes ill for the day when that challenge is presented.

, 255–56 (1989) (Scalia, J., concurring in the judgment).

Nevertheless, since H.J. Inc., and despite Justice Scalia’s skepticism, we have twice

rejected void-for-vagueness challenges to the RICO statute. See Bennett, 984 F.2d at 605–

07; United States v. Borromeo,

(1992). So have our sister circuits. See

Bennett,

(collecting cases). In Borromeo, we declined to accept Justice

Scalia’s position in H.J. Inc. “that the phrase ‘pattern of racketeering activity’ was

unconstitutionally vague since a majority of the Supreme Court . . . implicitly rejected that

suggestion.”

.

Appellants acknowledge that line of decisions but ask us to reconsider it in light of

void-for-vagueness cases like Davis, Sessions v. Dimaya,

(2018), and

Johnson v. United States,

(2015). But none of those cases justifies such

reconsideration, as they focus only on the residual “crime of violence” or “residual clause”

definitions in

(c), the Immigration and Nationality Act, and the Armed

Career Criminal Act, respectively. Those definitions do not appear in the RICO conspiracy

statute.

In Johnson, the Court invalidated the “residual clause” of the Armed Career

Criminal Act (ACCA), which defined a violent felony, in part, as a crime that “otherwise

13 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 14 of 54

involves conduct that presents a serious potential risk of physical injury to another.”

(emphasis omitted) (quoting

(e)(2)(B)(ii)). Next, in

Dimaya, the Court held that a similar residual clause defining a crime of violence as “any

other offense that is a felony and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course of committing

the offense” was likewise unconstitutionally vague.

, 1223 (quoting

(b)). Finally, in Davis, the Court applied Johnson to strike down a residual

clause that defined violent felonies as felonies “that by their nature, involve a substantial

risk that physical force against the person or property of another may be used in the course

of committing the offense.” 139 S. Ct. at 2323–24 (brackets omitted) (quoting

(c)(3)(B)).

We thus disagree that Bennett has been effectively overruled. Appellants challenge

different language that we have upheld as constitutional. Bennett, 984 F.2d at 605–07. We

are bound by this precedent. McMellon v. United States,

(4th Cir. 2004)

(en banc). We will follow our previous holdings and affirm that the RICO conspiracy

statute is not unconstitutionally vague, rejecting Appellants’ first claim on appeal.

III.

Appellants next contend that the district court violated their Sixth Amendment rights

to a public trial when it limited the number of people who could gather in the public gallery

to twenty-five people, even though the courtroom could hold well over a hundred. A

district court’s decision to limit access to a courtroom proceeding is a constitutional

14 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 15 of 54

question we review de novo. United States v. Osborne,

(5th Cir. 1995). We

disagree that Appellants’ rights to a public trial were violated.

A.

Ten days into Appellants’ trial, the district court implemented a partial reduction of

the courtroom’s capacity after several incidents that raised security concerns. The district

court advised counsel that it would authorize the marshals to limit the number of spectators

in the gallery to twenty-five people if they became concerned about the number of people

for security reasons and that additional observers would be diverted to an overflow room.

Harrison and Tillman’s counsel objected that members of the public would not be able to

physically see the proceedings but could only hear them. The district court overruled those

objections because of “the extremely serious security concerns that this trial is raising

[which is] why I feel the necessity to do that.” J.A. 1109.2.

The next day, the district court provided more specific reasons for the partial

closure. It emphasized that the case involved approximately a dozen murders; two

witnesses for the government were murdered, “at least plausibly in connection with this

case;” two defendants assaulted marshals when being taken out of the courtroom; there was

a physical fight in the gallery on the second day of trial; a number of verbal outbursts came

from the gallery; a spectator was found in the gallery with a knife; a table in the lobby of

the courtroom had been vandalized with the name of the TTG gang scratched into it in

several places; and Barronette allegedly made a call while imprisoned that had “a plausible

interpretation of a request to pack the courtroom” when cooperating witnesses were

15 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 16 of 54

testifying, “rais[ing] the possibility of intimidation of those witnesses.” J.A. 1129–31.

Spectators in the overflow room could hear audio, but “the video [was] limited to . . . that

seal above the bench.” J.A. 1131.

On October 8, 2018, Harrison moved for a mistrial, noting that on two occasions,

marshals did not allow a spectator to go to the overflow room and instead asked to them

leave the courthouse. Affidavits from spectators were included in the motion. Three days

later, Harrison submitted another affidavit stating that on October 11, 2020, a marshal told

a spectator that the courtroom was “at capacity” and there was no “clearance” to open

another courtroom. J.A. 1819. That spectator waited outside the courtroom and was

admitted after the mid-afternoon break. The district court did not rule on Harrison’s

motion, effectively denying it.

B.

The Sixth Amendment guarantees a defendant the right to a public trial. Gannett

Co. v. DePasquale,

, 379–81 (1979). “The central aim of a criminal

proceeding must be to try the accused fairly, and ‘[the Court’s] cases have uniformly

recognized the public-trial guarantee as one created for the benefit of the defendant.’”

Waller v. Georgia,

(1984) (quoting Gannett,

). “[T]he

public-trial guarantee embodies a view of human nature, true as a general rule, that judges,

lawyers, witnesses, and jurors will perform their respective functions more responsibly in

an open court than in secret proceedings.” Estes v. Texas,

(1965)

(Harlan, J., concurring). “[T]he Sixth Amendment public-trial right ‘is for the benefit of

16 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 17 of 54

the accused,’ ensuring ‘that the public may see he is fairly dealt with and not unjustly

condemned . . . [and] keep[ing] his triers keenly alive to a sense of their responsibility.’”

United States v. Mallory, No. 19-4385,

, at *6 (4th Cir. July 11, 2022)

(quoting Waller,

).

“Yet the right is not absolute, and the Supreme Court has long recognized that trial

judges have discretion to impose reasonable limitations on access to a trial when overriding

interests . . . are likely to go unprotected if closure is not employed.” Bell v. Jarvis,

(4th Cir. 2000) (en banc) (emphasis added). We use the Supreme Court’s

test from Waller to determine if “the right to public trial may give way,” which requires

that:

(1) the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) reasonable alternatives to closing the proceeding [were] considered by the trial court, and (4) findings adequate to support the closure [were] made by the trial court.

at 166 (citing Waller,

).

Waller involved a total closure of a suppression hearing, from which all members

of the public were excluded.

. Although we have not articulated a clear rule

for a partial closure of a courtroom, the Second, Fifth, Eighth, Ninth, Tenth, and Eleventh

Circuits have applied a less stringent test in such circumstances. See Osborne,

n.12 (collecting cases). These circuits have concluded that

“when a trial judge orders a partial, as opposed to a total, closure of a court proceeding at the request of one party, a ‘substantial reason’ rather than Waller’s ‘overriding interest’ will justify the closure,” because a partial closure does not “implicate the same secrecy and fairness concerns that a total closure does.”

17 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 18 of 54

United States v. Farmer,

(8th Cir. 1994) (quoting Woods v. Kuhlmann,

(2d Cir. 1992)). 2

Here, the courtroom was never completely closed to the public; the district court

only reduced the capacity for spectators. Thus, it appears that applying the out-of-circuit,

less stringent test would be appropriate in this situation. However, we need not reach that

question today, as we believe the district court’s decision to partially reduce the capacity

of the courtroom holds up under the original Waller factors.

Regarding the first Waller prong, neither party seems to have requested the capacity

limit; instead, either the marshals or the district court itself requested the number of

spectators be capped due to security concerns and to prevent witness intimidation.

Maintaining order is an overriding interest. See, e.g., Codispoti v. Pennsylvania,

(1974) (“[C]ases in this Court have consistently [recognized] ‘the need to

maintain order and a deliberative atmosphere in the courtroom.’” (quoting Bloom v.

Illinois,

(1968))). As is preventing witness intimidation. Tucker v.

Superintendent Graterford SCI,

(3d Cir. 2017). We believe the

district court advanced overriding interests of maintaining order and preventing witness

intimidation by ordering the partial closure.

2 We discussed the “substantial reason” test employed by other circuits for partial closures in Bell. See

n.11 (collecting cases). But we did not decide if we would join our sister circuits in applying that test. See

18 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 19 of 54

As to the second prong, the partial reduction in capacity was no broader than

necessary. The district court chose to cap the audience at twenty-five people after

consulting both courthouse security and defense counsel. It explained that twenty-five

people was “a number of the general public equivalent to what the defense counsel

proffered there had normally been.” J.A. 1131. And the capacity reduction was also “based

on marshals’ advice.” J.A. 1131. Further, the court set up an overflow room for spectators

once the number of spectators in the courtroom reached the capacity limit.

We find that the capacity restriction was “tailored to serve” the interest of security

and preventing witness intimidation. Bell,

. The courtroom was not

“unnecessarily restricted,”

as many members of the public were still able to attend.

There “was no literal closure of the courtroom.” Mallory,

, at *7.

Indeed, in addition to the jury, the “[c]ourt personnel, the attorneys, and the court reporter

remained, and, of course, the jury, comprised of the public, was present.”

In this case,

additional members of the public were present, as well, as twenty-five spectators were able

to attend. Thus, we hold that the restriction was no broader than necessary.

Third, we find that the district court both considered and implemented reasonable

alternatives to closing the courtroom.

(“Waller counsels trial courts to consider

alternatives to a complete closure of a public proceeding.”). Despite serious security

concerns, the court did not close the courtroom but instead instituted a capacity limit after

consulting courthouse security and defense counsel. See

(“the limited nature of the

closure . . . suggests that [the court] considered” alternatives). It also set up an overflow

19 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 20 of 54

room that provided live audio of the proceedings. Thus, we find that the district court’s

process satisfies the third Waller prong.

Finally, we find that the district court made adequate factual findings to support the

capacity limitation. The court did not institute the partial closure until ten days into trial,

and after several disturbances had occurred. The court listed several instances of

“extremely serious security concerns,” J.A. 1109.2, including a fight in the gallery, a

spectator bringing a knife to the gallery, a courthouse table being vandalized with TTG’s

name, the murders of two cooperating witnesses, and Barronette’s alleged request for

people to pack the courtroom when cooperating witnesses were testifying. The court made

“‘findings specific enough that a reviewing court can determine whether the closure was

properly entered.’” Waller,

(quoting Press Enter. Co. v. Superior Ct. of

Cal.,

(1984)). Thus, we find the district court satisfied this prong.

In sum, we find that the district court’s order to reduce the courtroom’s capacity

satisfies the Waller factors. Appellants did not have a trial in secret. While some spectators

who wanted to be in the courtroom were not able to be there, Appellants still received the

benefits of having a public trial as twenty-five spectators were able to be in the courtroom.

“[T]he partial closing of court proceedings does not raise the same constitutional concerns

as a total closure because an audience remains to ensure the fairness of the proceedings.”

Osborne, 68 F.3d at 98–99. We hold that the district court did not violate Appellants’

rights to a public trial.

20 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 21 of 54

IV.

Next, Sivells and Floyd appeal the court’s denial of their motions to suppress.

Sivells moved to suppress evidence gathered from tracking orders and wiretap orders on

two phones he was utilizing during the drug conspiracy, referred to as TT4 and TT5. He

also moved to suppress the search warrant for 2307 Avalon Avenue in Baltimore, which

relied on supporting affidavits using information derived from TT4. Floyd, whose voice

was intercepted on the TT4 wiretap, also moved to suppress all evidence collected through

the use of electronic surveillance. The district court denied the motions, finding there was

adequate probable cause for the orders. J.A. 563, 734. We affirm.

When reviewing a district court’s denial of a motion to suppress, we review legal

conclusions de novo and any factual determinations only for clear error. United States v.

Kelly,

(4th Cir. 2010). If the district court denies the motion to suppress,

we view all facts in the light most favorable to the government.

The reviewing court’s

duty is only to ensure that the issuing court “had a ‘substantial basis for concluding’ that a

search would uncover evidence of wrongdoing.” Illinois v. Gates,

(1983) (cleaned up) (quoting Jones v. United States,

(1960)).

Regarding the tracking order for TT4, a federal magistrate judge issued a search

warrant on February 5, 2016, permitting the government to receive location information

from the phone. An eleven-page affidavit accompanied the warrant, establishing probable

cause that Sivells was involved in drug trafficking and that the phone was used for drug

trafficking. The affidavit detailed that (1) a confidential informant (CS-4) indicated that

Barronette was engaged in heroin trafficking in the area of North Carrollton Street and

21 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 22 of 54

Riggs Avenue in Baltimore; (2) law enforcement observed Sivells overseeing the

distribution of drugs in that area; (3) CS-4 made a controlled purchase of heroin from

Barronette; (4) on January 23, 2016, an intercepted call, involving another cellphone that

the police were tracking, revealed Barronette and Sivells discussing guns and drugs; (5) in

February 2016, CS-4 indicated that Sivells had recently acquired TT4 and was using the

phone to facilitate drug deals; and (6) also in February 2016, CS-4 made a controlled call

to Sivells on TT4 and made a deal with Sivells to purchase cocaine, with Sivells directing

CS-4 to go to a drug shop on Calhoun Street.

For the subsequent wiretap of TT4, the government submitted a fifty-two-page

affidavit describing probable cause, which included all of the above facts plus details about

Sivells’s record of drug crimes and phone records showing that TT4 was routinely used to

call Barronette, another known drug dealer.

For the wiretap of TT5, another cellphone associated with Sivells, law enforcement

submitted a seventy-five-page affidavit detailing probable cause. The affidavit stated that

in early March 2016, CS-4 informed police that Barronette and Sivells were using TT5 as

their phone to arrange drug transactions. The affidavit also listed who made controlled

calls to TT5 that Sivells answered, indicating he was going to purchase drugs.

Finally, for the search warrant for the residence at 2307 Avalon Avenue, the

government included an affidavit detailing controlled purchases of heroin from Barronette

and Sivells in November 2015 and January 2016, physical and electronic surveillance of

Sivells at or near the residence, and information from CS-4 that Sivells was recently in the

residence.

22 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 23 of 54

Appellants want us to discredit some of the information in the affidavits that came

from officers who were in the Baltimore City Police Department’s Gun Trace Task Force

(GTTF). Seven of these officers were convicted of racketeering conspiracy and other

offenses for abusing their positions. Three of these officers arrested Broughton on January

22, 2016, and in their affidavits establishing probable cause for the tracking order and

wiretap order on TT4, the government relied on events related to Broughton’s arrest.

Appellants want us to disregard the evidence in the affidavits from those events. However,

they admit “there are no allegations of misconduct against the agents and officers who

investigated the present case.” Opening Br. 22.

Appellants do not offer any evidence, for example, that Broughton’s arrest was

tainted by any of the officers’ unlawful activity. They also cite no legal authority for their

assertion that we should disregard the evidence. Additionally, the officers’ version of the

events was corroborated by an intercepted phone call on January 23, 2016, over TT3,

another cellphone, between Barronette and Sivells, in which the two discussed what

occurred during the arrest. And even if we disregarded any mention of the discredited

officers in the affidavits, the remaining information still supports a probable-cause finding

for the TT4 warrant. Thus, we need not decide whether any of the evidence from the GTTF

officers needs to be disregarded, as we can find that there was sufficient probable cause

supporting the tracking order and wiretap of TT4. See United States v. Fall,

,

371–72 (4th Cir. 2020) (“The case law establishes that, even if an affidavit supporting a

search warrant is based in part on some illegal evidence, such inclusion of illegal evidence

23 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 24 of 54

does not taint the entire warrant if it is otherwise properly supported by probable cause.”

(brackets and citation omitted)).

In sum, we find there is ample probable cause supporting the tracking and wiretap

orders for TT4 and TT5, as well as the search warrant for 2307 Avalon Avenue. We affirm

the district court’s denial of the motions to suppress.

V.

Next, Sivells challenges the admission of statements he made to law enforcement

after his arrest on October 27, 2016. He contends that officers improperly continued

questioning him after he invoked his right to counsel. He filed a motion to suppress the

statements, which the district court denied. We affirm the denial of the motion to suppress.

As above, we review legal conclusions de novo and any factual determinations only

for clear error. Kelly,

. Because the district court denied Sivells’s motion,

we view the facts in the light most favorable to the government.

After arresting Sivells, Detective Neptune and FBI Task Force Member Delorenzo

took him to an interview room where Neptune advised Sivells of his Miranda rights using

a Baltimore Police Department explanation and waiver of rights form. Sivells signed the

form, confirming that he understood his rights. Sivells centers his claim on a portion of

the video of the interrogation, which shows Sivells saying, at one point, “I can’t use my

cell phone to call my attorney.” J.A. 663. Neptune testified that he interpreted this as

Sivells “ask[ing] if he could use his cell phone to call his attorney.” J.A. 663. Neptune

“explained to him that if he wanted to have an attorney present, that we wouldn’t call an

24 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 25 of 54

attorney down there for him. If he wanted to have an attorney present during questioning,

we would stop right now, and we would speak to him at a later date with his attorney.”

J.A. 664. Neptune testified that after that conversation, Sivells went back to reading his

rights and initialing the form. Neptune continued to converse with Sivells, and later

testified at trial about Sivells’s statements.

The district court watched the video and held a hearing on Sivells’s motion to

suppress the statements. The court held that Sivells waived his Miranda rights and

knowingly and voluntarily agreed to speak with law enforcement, reasoning that Sivells

“chose to keep on talking, despite . . . a thorough understanding and explanation of his

rights.” J.A. 817. The court did not “find [Sivells’s] question about using his cell phone

to call his attorney [to be] an unequivocal assertion of his rights such that the officers were

compelled to stop talking to him, even though he said he wished to continue.” J.A. 818.

In Miranda v. Arizona, the Supreme Court held that the police must advise an

accused person in custody of his right to counsel and, “[i]f the individual states that he

wants an attorney, the interrogation must cease until an attorney is present.”

(1966). Later, in Edwards v. Arizona, the Court explained that when an accused person

“expresse[s] his desire to deal with the police only through counsel,” the police cannot

interrogate him “until counsel has been made available to him, unless the accused himself

initiates further communication, exchanges, or conversations with the police.”

, 484–85 (1981). Two elements must therefore be examined to determine whether

police have obtained a statement in violation of Edwards: (1) whether the accused actually

25 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 26 of 54

invoked his right to counsel, and (2) who initiated the further discussions that yielded the

eventual statement. Smith v. Illinois,

(1984).

Regarding the invocation of the right, the Supreme Court in Davis v. United States

held that “if a suspect makes a reference to an attorney that is ambiguous or equivocal in

that a reasonable officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel, our precedents do not require the cessation

of questioning.”

(1994). We have numerous examples of equivocal

requests for counsel that do not require the cessation of questioning. See United States v.

Johnson,

(4th Cir. 2005) (collecting cases that have found statements

like “Maybe I should talk to a lawyer,” “I think I need a lawyer,” “Do you think I need an

attorney here?” “I might want to get a lawyer then, huh?” “I think I want a lawyer,” “Do

you think I need a lawyer?” to be equivocal requests for counsel that do not require the

cessation of questioning (citations omitted)).

Sivells’s statement “I can’t use my cell phone to call my attorney” falls into this

category of ambiguous or equivocal statements, as he did not unequivocally request an

attorney. And, perhaps most importantly, the officers did not ignore Sivells. They made

clear that they would stop the questioning if he wanted to have an attorney present. But

instead of asking for an attorney, Sivells simply signed the waiver-of-rights form

voluntarily, relinquishing his rights and continuing to speak with law enforcement.

We agree with the district court that Sivells did not invoke his right to counsel in

the way that Miranda and Edwards require. Thus, we affirm the district court’s denial of

Sivells’s motion to his suppress the statements he made to law enforcement.

26 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 27 of 54

VI.

Wilson and Pulley assert that their § 922(g)(1) convictions should be reversed after

the Supreme Court’s decision in Rehaif,

. We affirm Wilson’s conviction

but find that Pulley’s conviction should be reversed.

Wilson, in Count 8, and Pulley, in Count Ten, were convicted under

(g)(1) for possessing firearms with previous convictions of crimes punishable by

more than one year of imprisonment. After their trial, the Supreme Court in Rehaif held

that in § 922(g) prosecutions, the government must prove that the defendant knew he

possessed a firearm and that he belonged to a class of persons barred from possessing a

firearm. 139 S. Ct. at 2200. Both parties agree that the district court did not instruct the

jury to find that Wilson and Pulley knew they were in a prohibited class. Wilson and Pulley

did not preserve their mens rea claims at trial, so plain-error review applies. Greer v.

United States,

(2021).

A defendant must satisfy three requirements for plain-error relief. First, an error

must have occurred. Rosales-Mireles v. United States,

(2018).

Second, the error must be plain.

Third, the error must affect the defendant’s

“substantial rights,” meaning that there must be “a reasonable probability that, but for the

error, the outcome of the proceeding would have been different.”

at 1904–05 (quoting

Molina-Martinez v. United States,

(2016)). If a defendant meets these

requirements, then an appellate court can grant relief if the error had a serious effect on the

“fairness, integrity, or public reputation of judicial proceedings.”

at 1905 (quoting

Molina-Martinez,

).

27 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 28 of 54

Here, the lack of jury instruction is an error under Rehaif, and that error was plain,

so the first two prongs of the plain-error test are satisfied. See Greer,

.

So, we only concern ourselves with the third prong of plain error relief, whether the error

affects the defendant’s substantial rights.

Between the Appellants’ opening brief deadline and the government’s response

brief deadline, the Supreme Court issued Greer, which held that, under the substantial

rights prong, “a Rehaif error is not a basis for plain-error relief unless the defendant first

makes a sufficient argument or representation on appeal that he would have presented

evidence at trial that he did not in fact know he was a felon.”

. It

instructed courts to “determine whether the defendant has carried the burden of showing a

‘reasonable probability’ that the outcome of the district court proceeding would have been

different.”

A defendant who makes this showing would survive the plain error review.

.

A.

We turn first to Pulley’s conviction. As discussed, Pulley was convicted under

§ 922(g)(1), which makes it unlawful to possess a weapon for “any person” “who has been

convicted in any court of, a crime punishable by imprisonment for a term exceeding one

year.”

(g)(1). The problem, Pulley explains, is that this code section is

colloquially—and ubiquitously—known as a “felon-in-possession” prohibition. See, e.g.,

Greer,

; United States v. Ball,

(4th Cir. 2021); United

States v. Gilbert,

(4th Cir. 2005); see also United States v. Heyward,

28 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 29 of 54

No. 18-4819,

, at *4 (4th Cir., Aug. 3, 2022) (noting, however, that

“[t]he word ‘felon’ . . . lacks some precision”). Even Pulley’s indictment itself calls the

§ 922(g)(1) count “Felon in Possession of a Firearm.” See J.A. 757. But all of Pulley’s

prior crimes were state-law misdemeanors, as both parties agree and Pulley’s presentence

report (PSR) confirms. 3 So, Pulley argues, even though he technically falls within the

statutory prohibition, he did not know his relevant status as required by Rehaif and Greer

at the time he committed the offense.

However, Pulley’s misdemeanors caused him to be treated as a felon for the

purposes of

(g)(1). Indeed, the story is even more complicated than that,

because to fully understand § 922(g)(1)’s restrictions, one must consult an entirely different

section of the statute, which defines a “crime punishable by imprisonment for a term

exceeding one year,” § 921(a)(20)(B). That section explains that, when applied to

misdemeanors, a “crime punishable by imprisonment for a term exceeding one year” means

“any State offense classified by the laws of the State as a misdemeanor” and punishable by

more than two years of imprisonment. See

(a)(20)(B) (specifying that “the

term ‘crime punishable by imprisonment for a term exceeding one year’ does not include”

state misdemeanors “punishable by a term of imprisonment of two years or less” (emphasis

added)). Section § 921(a)(20)(B) also explains that “[w]hat constitutes a conviction of

3 The government initially claimed that Pulley has felony convictions. See Government’s Response Br. 48. That contention is incorrect. The government conceded at oral argument that Pulley’s prior convictions were all state-law misdemeanors.

29 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 30 of 54

such a crime shall be determined in accordance with the law of the jurisdiction in which

the proceedings were held.” Id.

Pulley acknowledges that his misdemeanor convictions fall into this category and

that § 922(g)(1) still bars him from possessing a firearm. But, he claims, for the knowledge

of status element, he did not know that he fell within the relevant status for § 922(g)(1)

because he was a state-level misdemeanant, not a felon. We agree that this distinction

matters for a law referred to time and time again as “felon-in-possession.” See, e.g., Greer,

139 S. Ct. at 2095; Ball,

; Gilbert,

.

Pulley’s PSR shows that he was convicted of several misdemeanors under state law

before the instant case. He received only one sentence of over two years: for his

misdemeanor conviction in 2013 for unauthorized removal of property under

, Pulley was sentenced to three years’ imprisonment, but all but

three months of that sentence were suspended. The longest term of custody Pulley received

was 17 months’ imprisonment for misdemeanor drug possession under

(a)(1).

While recognizing that Pulley’s misdemeanors do place him into the category of

people prohibited from possessing firearms, there is a lack of record evidence that Pulley

knew that he was convicted of a state crime for which the punishment was for more than

two years, especially when his crimes were labeled as misdemeanors. Therefore, we agree

with Pulley that the Rehaif error affected his substantial rights, and his challenge thus

survives plain-error review. After all, Rehaif instructed that for a § 922(g) conviction, the

government must prove beyond a reasonable doubt that the defendant “knew he belonged

30 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 31 of 54

to the relevant category of persons barred from possessing a firearm.” 139 S. Ct. at 2200

(emphasis added). In a case like this one, where the defendant’s qualifying predicate

conviction is a state-law misdemeanor, that means the government must “prove that [the

defendant] knew, when he possessed the firearm, that his prior state conviction was

punishable by more than two years of imprisonment.” Heyward,

, at *4.

True, Greer explains that it is an “uphill climb” to show a reasonable probability

that the outcome would have been different in a § 922(g)(1) prosecution for people who

are in fact felons.

. But Greer said the reason for this uphill climb was

“simple”: “If a person is a felon, he ordinarily knows he is a felon.”

Indeed, “[f]elony

status is simply not the kind of thing that one forgets.”

(quoting United States v. Gary,

(4th Cir. 2020) (Wilkinson, J., concurring in denial of reh’g en banc)).

Greer recognized that this “simple truth is not lost upon juries”; “absent a reason to

conclude otherwise, a jury will usually find that a defendant knew he was a felon based on

the fact that he was a felon.”

This “uphill climb” for people who are in fact felons makes sense in the context of

§ 922(g)(1). As explained, courts, counsel, and citizens alike refer to the crime as “felon-

in-possession.” Greer itself repeatedly refers to § 922(g)(1) as felon-in-possession and

discusses how Rehaif impacts “felon-in-possession cases.” See, e.g., id. at 2095 (“In felon-

in-possession cases after Rehaif, the Government must prove not only that the defendant

knew he possessed a firearm, but also that he knew he was a felon when he possessed the

firearm”). But that logic does not translate well to state-law misdemeanants. See id. at

2100 (“In felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless

31 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 32 of 54

the defendant first makes a sufficient argument or representation that on appeal he would

have presented evidence at trial that he did not in fact know he was a felon” (emphasis

added)); see also Heyward,

, at *4 (explaining, however, that while “[i]t

is common to describe

(g)(1) as the ‘felon-in-possession’ statute” and

while, “in Greer, the Supreme Court repeatedly shorthanded the [relevant] knowledge

requirement as whether the defendant ‘knew he was a felon,’ . . . [t]he word ‘felon’ . . .

lacks some precision” because “[w]hat the statutory text [actually] forbids is possessing a

firearm after having been convicted of ‘a crime punishable by imprisonment for a term

exceeding one year,” as that phrase is defined in

(a)(20)).

So, we believe that Pulley’s is a different case from Greer. As someone not

convicted of a crime labeled as a felony, Pulley might not face the same uphill battle to

show that the Rehaif error affected his substantial rights. While a person may ordinarily

know he is a felon, we do not believe we can infer that a person convicted only of

misdemeanors “ordinarily knows” their status for the purposes of plain error review

following a Rehaif instruction error. The Greer concurrence supports our reasoning,

recognizing that there are many reasons a defendant may not know his status, including

“[f]or example, a defendant may not understand that . . . a misdemeanor under state law

can be a felony for purposes of federal law.”

(Sotomayor, J., concurring

in part and dissenting in part). While Greer opens the door for courts to presume a person

knows they are a felon, we do not believe we can apply this simple presumption to Pulley,

a state-law misdemeanant.

32 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 33 of 54

In the end, to obtain plain-error relief, Pulley needs to show only that there is a

reasonable probability that, without the Rehaif error, the outcome would have been

different. We believe Pulley has shown just that. The record is devoid of any evidence

that Pulley knew that he was convicted of a state crime for which the punishment was for

more than two years. Unlike the defendants in Greer who had been convicted of multiple

felonies, Pulley was only convicted of state crimes labeled as misdemeanors. He never

served more than two years in prison. See Reply Br. at 24. And while he was sentenced

to a term of imprisonment exceeding two years, the judge simultaneously suspended the

vast majority of that sentence, raising a question as to whether he actually knew he had

been convicted of a crime punishable by more than two years when he possessed a firearm

several years later. Moreover, he only stipulated at trial that he had been convicted of a

crime punishable by imprisonment for more than one year, not two. See J.A. 3034. “If a

defendant demonstrates why a jury in an error-free trial might have reasonable doubts as

to the knowledge-of-felon-status element, he has shown a reasonable probability of a

different outcome.” Greer,

(Sotomayor, J., concurring in part and

dissenting in part). Pulley has demonstrated such a probability. If the circumstances here

do not affect Pulley’s substantial rights, we find it difficult to imagine a case that would

satisfy plain-error review. And there must be some cases where a Rehaif error warrants

reversal, lest we risk closing the door Greer deliberately left open.

We find there is a reasonable probability that a jury would have “reasonable doubts

as to the knowledge-of-felon-status element,” Greer,

(Sotomayor, J.,

concurring in part and dissenting in part), which requires that Pulley knew that his

33 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 34 of 54

misdemeanors placed him into “the relevant category of persons barred from possessing a

firearm,” Rehaif,

. Thus, the district court’s Rehaif error affected Pulley’s

substantial rights.

Having found that the district court erred in its jury instructions, the error was plain,

and the error affected Pulley’s substantial rights, we may grant relief if the error had a

serious effect on the “fairness, integrity or public reputation of judicial proceedings.”

Rosales-Mireles,

. This final plain-error requirement “is meant to be

applied on a case-specific and fact-intensive basis.” Puckett v. United States,

(2009). Based on these facts, we find that the Rehaif error had just such a serious

effect on Pulley’s § 922(g) conviction. Pulley has “demonstrate[d] why a jury in an error-

free trial might have reasonable doubts as to the knowledge-of-felon-status element,”

Greer,

(Sotomayor, J., concurring in part and dissenting in part), thus

calling into question whether a jury would have convicted Pulley had they been required

to find beyond a reasonable doubt that he knew at the time of his firearm possession that

he had been convicted of a crime punishable by more than two years. And we believe that

“this case presents circumstances in which a miscarriage of justice would . . . result,” if we

affirmed Pulley’s conviction. United States v. Mitchell,

(4th Cir. 1993)

(cleaned up). Therefore, we use our discretion to grant relief.

B.

We turn next to Wilson’s claim that his § 922(g) conviction should be vacated under

Rehaif. In his reply, which was his first opportunity to discuss Greer, Wilson offers no

34 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 35 of 54

argument on his felon-in-possession conviction. Appellants’ Reply Br. 17. Unlike Pulley,

Wilson had been convicted of robbery with a dangerous weapon, which is a felony under

Maryland law. Thus, the presumption that he would ordinarily know he was a felon

applies. Greer,

. Because Wilson offers no argument to rebut that

presumption—he does not discuss at all what evidence he would have presented to the jury

that he did not know he was a felon—we affirm his conviction.

VII.

Barronette and Pulley contend that the district court abused its discretion by denying

their motion for a mistrial because a government witness, Anthony Boyd, stated during

cross-examination that he saw a news report that Barronette was the “number one gun

puller in Baltimore.” J.A. 2403.29. Barronette and Pulley moved for a mistrial after that

statement. The district court denied the motion, noting that it thought “the comment was

invited.” J.A. 2403.30. But it nevertheless instructed the jury to ignore the comment. We

affirm the district court.

“[D]enial of a defendant’s motion for a mistrial is within the sound discretion of the

district court.” United States v. Dorloius,

, 257 (4th Cir. 1997) (citations

omitted). “[O]n a courtroom issue such as this, the district court is best positioned to assess

whether a mistrial is warranted or whether other means exist to address the issue

adequately.” United States v. Taylor,

(4th Cir. 2019). We have

explained that “[b]ecause a mistrial is so drastic a step, we will disturb the district court’s

refusal to grant one only in extraordinary circumstances, such as when evidence is admitted

35 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 36 of 54

that would prejudice the defendant, and there is an ‘overwhelming probability’ that the jury

would be unable to heed a curative instruction to ignore it.”

at 221–22 (quoting Greer

v. Miller,

, 766 n.8 (1987)).

Barronette and Pulley have not established how this witness statement is an

“extraordinary circumstance” that prejudiced them. First, the statement only concerned

Barronette, not Pulley. Second, while the statement was related to Barronette’s guilt, we

find that Barronette was not prejudiced. The district court gave a curative instruction, and

we do not find there is an overwhelming probability that the jury was unable to heed it. To

the contrary, the jury was able to make individual guilt determinations for Barronette here.

See J.A. 3393 (finding Barronette did not conspire to murder David Moore). In Taylor, we

emphasized that “there is no prejudice if we determine that the jury, despite the incident in

question, was able to ‘make individual guilt determinations by following the court’s

cautionary instructions.’”

(quoting United States v. Wallace,

(4th Cir. 2008)). Further, like in Taylor, Boyd’s statement “was not instigated by

the government but occurred during cross-examination by [Barronette’s] counsel.” Id. at

222.

Barronette and Pulley have not shown that the district court abused its discretion,

and thus, we affirm.

VIII.

Appellants argue the jury lacked sufficient evidence to find that (1) the alleged

RICO conspiracy substantially affected interstate commerce; (2) Wilson possessed a

36 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 37 of 54

firearm in furtherance of a drug conspiracy; (3) the drug conspiracy involved one kilogram

or more of heroin; (4) Sivells and Floyd conspired to murder Antonio Addison; and (5)

Broughton conspired to murder unknown individuals. We disagree and find that there was

sufficient evidence for the jury’s verdicts.

We review the sufficiency of the evidence to determine whether “any rational trier

of fact could have found” that all elements of the charged offenses were proven beyond a

reasonable doubt. Jackson v. Virginia,

(1979). Our review of jury

verdicts is highly deferential. “[A] jury verdict ‘must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to support it.’” Burgos,

(quoting Glasser v. United States,

(1942)). And a court “may

not overturn a substantially supported verdict merely because it finds the verdict

unpalatable or determines that another, reasonable verdict would be preferable.”

A.

Appellants assert that all convictions as to Count One, the RICO conspiracy, should

be reversed because the government failed to prove that the alleged racketeering enterprise

substantially affected interstate commerce. See United States v. Mathis,

(4th Cir. 2019) (explaining the government must show “that an enterprise affecting

interstate commerce existed” to sustain a RICO conviction). We disagree.

Appellants contend that any RICO conspiracy was confined to a neighborhood in

Baltimore. But the government must only prove a “de minimis” effect on interstate

commerce. United States v. Zelaya,

(4th Cir. 2018). For example, the

37 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 38 of 54

government can satisfy this element by introducing evidence that “the gang regularly

communicated by phone and committed multiple robberies using guns that traveled in

interstate commerce.” United States v. Cornell,

, 622–23 (4th Cir. 2015)

(citation omitted). It can also establish this element by showing that the drug products sold

by Appellants originated outside the United States. United States v. Gray,

(4th Cir. 1998) (en banc).

Appellants argue that the de minimis standard does not apply to their activity

because it was purely intrastate activity. They cite United States v. Robertson, which stated

that “[t]he ‘affecting commerce’ test was developed in our jurisprudence to define the

extent of Congress’ power over purely intrastate commercial activities that nonetheless

have substantial interstate effects.”

(1995) (citing Wickard v. Filburn,

(1942)).

But the de minimis standard does in fact apply. In Gonzales v. Raich, the Supreme

Court made clear that “when ‘a general regulatory statute bears a substantial relation to

commerce, the de minimis character of individual instances arising under that statute is of

no consequence.’”

(2005) (quoting United States v. Lopez,

(1995)). Thus, we have repeatedly held that the de minimis standard applies to RICO

conspiracies. See United States v. Gutierrez,

, 339 n.7 (4th Cir. 2020);

Cornell,

.

Here, there is sufficient evidence that Appellants’ conspiracy affected interstate

commerce. The government introduced evidence that Appellants used guns manufactured

outside of Maryland. J.A. 2386, 2388. There was testimony that the drugs Appellants sold

38 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 39 of 54

were produced outside the United States and shipped into the country. J.A. 2531.1–.3.

Finally, Appellants used phones, which are “channels of interstate commerce,” see Gibbs

v. Babbitt,

, 490–91 (4th Cir. 2000), to coordinate drugs sales and TTG’s

business. Construing all this evidence in the light most favorable to the government, we

find there is sufficient evidence that the conspiracy affected interstate commerce.

B.

Wilson challenges the sufficiency of the evidence for his § 924(c) conviction for

using a firearm in furtherance of drug trafficking. To support a conviction under § 924(c),

the government must establish: “(1) the defendant used or carried a firearm, and (2) the

defendant did so during and in relation to a drug trafficking offense or crime of violence.”

United States v. Mitchell,

(4th Cir. 1997). Wilson contends that there

was insufficient evidence to link the gun to drug trafficking. We disagree.

Law enforcement recovered the gun after executing a search warrant at Wilson’s

girlfriend’s residence. Wilson admitted to law enforcement that he knowingly possessed

the firearm. The gun was loaded and found in the same room as seventy-five vials of

suspected cocaine and in close proximity to about $12,000 in cash. Although Wilson

explained that he obtained the gun to defend his home, we have found that evidence of a

loaded gun in close proximity to drug paraphernalia is sufficient evidence for a § 924(c)

conviction. United States v. Howard,

(4th Cir. 2014). In line with this

precedent, we find that there is sufficient evidence for Wilson’s conviction.

39 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 40 of 54

C.

Appellants next assert that the jury lacked sufficient evidence to conclude that the

narcotics conspiracy involved one kilogram or more of heroin distribution foreseeable to

each Appellant. We find there is sufficient evidence.

In light of Apprendi v. New Jersey,

(2000), the government’s

indictment must allege and the jury must find beyond a reasonable doubt any threshold

drug weights that trigger enhanced mandatory minimum penalties in

(b)(1)(A). United States v. Promise,

(4th Cir. 2001) (en banc).

Additionally, for the drug weight to trigger enhanced mandatory minimum sentences for

conspiracy offenses, “the jury must determine that the threshold drug quantity was

reasonably foreseeable to the defendant” participating in the conspiracy. United States v.

Jeffers,

(4th Cir. 2009). But to arrive at a drug-weight finding, the jury

may rely on circumstantial evidence. See United States v. Cole,

(4th

Cir. 1995) (“The district court had clear authority to approximate the quantity of a drug in

its determination of relevant conduct and to rely upon circumstantial evidence and

statistical methods in making that determination.”) (citing United States v. Uwaeme,

(4th Cir. 1992)).

Here, the indictment alleged a conspiracy that spanned seven years. At trial, the

government put on evidence of controlled buys that established 180 grams of drug weight.

There was testimony from drug customers about their usual purchases that established

another, at least, 450 grams. Evidence about the amount of money Barronette, Sivells, and

Floyd made establishes that their drug weights exceed one kilogram. There was also

40 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 41 of 54

evidence from wiretap calls in which customers ordered various amounts of heroin. After

a thorough review of the record, we are confident that the drug conspiracy involved more

than one kilogram of heroin, and we affirm the jury’s verdict.

D.

Sivells and Floyd contend that the government failed to prove beyond a reasonable

doubt that they conspired to murder Antonio Addison, one of the predicate offenses in the

RICO conspiracy charge in Count One. The jury issued a special verdict finding that

Sivells and Floyd conspired to murder Addison. We find there is sufficient evidence for

this special verdict. Thus, we affirm.

The government established without question that Antonio Addison was murdered

on May 25, 2016. His murder was part of a conflict between TTG members and Cedric

Catchings, Andrew Johnson, Amos Johnson, Brandon Bazemore, and Addison. The

conflict began because the TTG members believed Andrew Johnson had cooperated with

law enforcement.

The government introduced evidence from wiretapped phone calls that showed that

TTG members were surveilling the men. In April 2016, Floyd reported Addison’s

whereabouts to Barronette several times. In early May 2016, Floyd told Sivells that he was

watching Catchings walk down the street, and they discussed how Catchings was working

with Addison and others that they believed were cooperating with law enforcement. Then,

on May 25, 2016, an individual fired shots into a car occupied by Bazemore and Johnson.

41 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 42 of 54

After the shooting, Sivells, in a wiretapped call, asked the shooter whether he had “hit”

Bazemore. J.A. 3761.

Then, also on May 25, 2016, Sivells and Barronette observed Addison and Johnson

together in a vehicle. That same day, Addison was murdered. Tyree Paige, another person

who sold drugs in the neighborhood, testified that he heard Sivells say that Addison was

“supporting a rat, so [he] had to go, too.” J.A. 1689. Paige then testified that he saw Sivells

and Barronette driving on Calhoun Street, with guns, towards where Addison was shot. He

then heard gunshots and saw Sivells and Barronette return right after to Calhoun Street.

Additionally, Sivells’s cell phone records confirm that he was near the site of Addison’s

murder during the time period of his murder.

Based on this evidence, we find that there is sufficient evidence to sustain the jury’s

verdict that Sivells and Floyd conspired to murder Addison. Sivells contends that “[o]nly

one witness linked Sivells to the homicide: Tyree Paige, whose testimony tested and then

busted through the limits of witness credibility.” Opening Br. 64. While we recognize

there were inconsistencies in Paige’s testimony, “a reviewing court is not entitled to assess

the credibility of witnesses.” United States v. Brooks,

(4th Cir. 2008).

Rather, we “must assume that the jury resolved all contradictions . . . in favor of the

Government.” United States v. United Med. & Surgical Supply Corp.,

, 1402

(4th Cir. 1993) (citation omitted). And we have found the uncorroborated testimony of one

witness to be sufficient evidence to sustain a conviction. See United States v. Wilson,

(4th Cir. 1997); United States v. Baker,

(4th Cir.

1993); United States v. Arrington,

(4th Cir. 1983). But here, the

42 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 43 of 54

testimony was indeed corroborated, as the government provided GPS data and wiretaps.

Evidence showed that both men participated in the conspiracy to murder Addison. Under

the highly deferential standard of review we must employ, we find that there was sufficient

evidence to sustain the special verdict against Sivells and Floyd.

E.

Broughton also contends that the jury’s special verdict finding that he conspired to

murder unknown individuals—one of the predicate offenses in the RICO conspiracy

charged in Count One—lacks sufficient evidence. We disagree.

The government introduced evidence of a series of wiretap calls between

Broughton, Sivells, and Barronette, which occurred after another TTG member had the

drugs he was carrying stolen. Broughton was on the street looking for the individuals who

stole the drugs, while Barronette and Sivells were together in one car. Broughton made

several calls to Barronette calling out the individuals’ location. Broughton said, “Stay wit

em [sic], come on.” J.A. 3041–46. Sivells commented that Broughton was supposed to

kill the individuals as they walked past. J.A. 3043 (“Why f**k Marty let ‘em go past him

though. He froze? That’s supposed to be his time to shine.”); see also J.A. 3045 (regarding

what the individuals stole, “They took what? He better go shoot that motha f**ka up.”)

There was also evidence that Barronette wanted to grab a firearm. J.A. 3042 (“About to

grab that other jimmy mack.”).

Ultimately, Barronette and Broughton did not shoot the individuals because law

enforcement moved into the area to disrupt the potential violence. Broughton discarded

43 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 44 of 54

two firearms during the police chase. In later a wiretapped call, Broughton said “I was for,

I was for [unintelligible], I was gonna pow! Hit him right in the head.” J.A. 3044.

These facts, taken in the light most favorable to the government, are sufficient to

sustain the jury’s verdict under our highly deferential standard. We affirm.

IX.

Harrison challenges the district court’s admission of statements that murder victim

Markee Brown made prior to his death to police and a grand jury, 4 on April 13, 2016, in

which Brown stated that Harrison robbed him and Dominique Harris and then Harrison

murdered Harris. The jury in this case issued a special verdict finding that Harrison

conspired to commit the premeditated murder of Harris. Harrison argues that the admission

of this testimony violated his rights under the Confrontation Clause since Brown himself

did not testify because he was murdered before the trial at issue here. We affirm the district

court’s admission of the statements.

“This Court reviews evidentiary rulings implicating constitutional claims de novo.”

United States v. Williams,

(4th Cir. 2011).

The second superseding indictment alleged that on December 28, 2015, Harrison

robbed Harris and Brown of drugs and money. Shortly thereafter, Harrison murdered

Harris. Harrison was later charged in state court with robbery and Brown identified

4 This grand jury was for separate state court charges against Harrison that occurred before Appellants were indicted in this case.

44 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 45 of 54

Harrison as the perpetrator to the police and a grand jury. A few days after Brown testified,

TTG members murdered Brown.

At trial, over Harrison’s objection, the district court found that Brown’s testimony

was admissible under the forfeiture-by-wrongdoing exception to the Confrontation Clause

and to the hearsay rule because it found by a preponderance of the evidence that TTG

members murdered Brown to prevent him from testifying and Harrison acquiesced in that

murder. See Fed. R. Evid. 804(b)(6); United States v. Jackson,

(4th Cir.

2013) (recognizing the forfeiture-by-wrongdoing exception to the Confrontation Clause).

Harrison asserts that there is insufficient evidence that he acquiesced in Brown’s

murder and that Brown’s statements should not have been admitted under the forfeiture-

by-wrongdoing exception. But we need not decide whether there was enough evidence to

find that Harrison acquiesced in Harris’s murder because any error was harmless.

“Evidentiary rulings are ‘subject to harmless error review’” and “a Confrontation Clause

violation may be found harmless on appeal.” United States v. Banks,

(4th Cir. 2007) (quoting United States v. Brooks,

(4th Cir. 1997)).

“Erroneously admitted evidence is harmless if a reviewing court is able to determine that

‘the constitutional error was harmless beyond a reasonable doubt.’” United States v.

Williams,

(4th Cir. 2011) (quoting United States v. Abu Ali,

(4th Cir. 2008)).

While Brown’s testimony is the main evidence connecting Harrison to Harris’s

murder, the special verdict affects neither his Count One conviction nor his Guidelines

45 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 46 of 54

range. There are sufficient predicate acts to sustain the Count One conviction, even without

this special verdict.

“[T]o establish a RICO conspiracy the government must prove ‘that each defendant

knowingly and willfully agreed that he or some other member of the conspiracy would

commit at least two racketeering acts.’” Cornell,

(quoting United States

v. Mouzone,

(4th Cir. 2012)). “Racketeering acts, often referred to as

predicate acts, include any act or threat involving murder, kidnapping, gambling, arson,

robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance

chargeable under state law and punishable by imprisonment for more than one year.”

(citing

(1)). A defendant may be guilty of a RICO conspiracy “even if

[he] does not agree to commit or facilitate each and every part of the substantive offense.”

Salinas v. United States,

(1997). The government needs to prove only that

co-conspirators “agree[d] to pursue the same criminal objective,” but they “may divide up

the work.”

In other words, RICO conspiracy does not “requir[e] the Government to

prove each conspirator agreed that he would be the one to commit two predicate acts.”

. And “[r]eversal of . . . a conviction on a substantive RICO count is not required

simply because some predicate acts are factually insufficient, as long as there remain at

least two adequately proven acts.” United States v. Browne,

(11th

Cir. 2007).

In this case, the jury found more than two predicate racketeering acts, as it convicted

each defendant on the drug-trafficking charges in Count 3 and issued several special

murder verdicts which were not appealed. These acts are attributable to each Appellant as

46 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 47 of 54

members of the RICO enterprise. Therefore, there were sufficient predicate racketeering

offenses to convict Harrison of RICO conspiracy in Count One. The jury also found that

Harrison conspired to commit premeditated murder of two other people and thus the

Guidelines would advise a life sentence for Harrison even without the special verdict for

Harris’s murder. See U.S.S.G. § 2E1.1(a)(2) (instructing to apply “the offense level

applicable to the underlying racketeering activity” as long as it exceeds 19); U.S.S.G. §

2A1.1 (base offense level for first degree murder is 43). Thus, even if the district court

erred in allowing Brown’s testimony, that error is harmless as Harrison’s convictions and

the Guidelines range would have been the same. We therefore affirm.

X.

Sivells, Broughton, and Floyd finally assert that their sentences are procedurally and

substantively unreasonable.

We “review all sentences—whether inside, just outside, or significantly outside the

Guidelines range—under a deferential abuse-of-discretion standard.” Gall v. United

States,

(2007). First, this Court “ensure[s] that the district court committed

no significant procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence—including an explanation for any deviation from the

Guidelines range.” United States v. Fowler,

(4th Cir. 2020) (quoting

Gall,

). “If the Court ‘finds no significant procedural error, it then considers

47 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 48 of 54

the substantive reasonableness of the sentence imposed.’” United States v. Arbaugh,

(4th Cir. 2020) (cleaned up) (quoting United States v. Diosdado-Star,

(4th Cir. 2011)). The Court’s review for substantive reasonableness “take[s]

into account the totality of the circumstances, including the extent of any variance from the

Guidelines range.” Gall,

. “A within-Guidelines range sentence is

presumptively reasonable.” United States v. White,

(4th Cir. 2017)

(citation omitted).

A.

Sivells was sentenced to life imprisonment. He contends the district court

procedurally erred by failing to adequately respond to his mitigation evidence and that his

sentence was substantively unreasonable. We disagree and affirm his sentence.

A district court commits a procedural error if it entirely fails to consider a

defendant’s “non-frivolous arguments for a lower sentence.” United States v. Webb,

(4th Cir. 2020). It must, at a minimum, “put on the record its consideration

of [a defendant’s] non-frivolous arguments for a lower sentence or explain its rejection of

those arguments.”

.

Sivells presented several factors to the court to support his request for a 30-year

sentence. He pointed to his difficult childhood, his abandonment by his parents, and his

low IQ which placed him in the lowest one percent of intellectual functioning. The district

court agreed that “Sivells had a very difficult and destructive childhood” and “that he has

the neuropsychological issues that have been documented.” J.A. 3520. But the court then

48 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 49 of 54

said that “many other people go through the kind of background or history and do not

involve themselves in the violence.” J.A. 3521. It concluded, “the tragedy that we can all

sympathize with about his childhood . . . is, to me, outweighed by the need to recognize

this most serious of crimes, combination of crimes that he has committed, and the need to

protect the public.” J.A. 3521.

We find that the district court adequately addressed Sivells’s mitigation evidence

and thus find no procedural error. See United States v. Johnson,

(4th

Cir. 2009).

Regarding substantive reasonableness, Sivells’s sentence was within his Guidelines

range and thus is “presumptively reasonable.” White,

. Sivells argues that

the district court improperly compared him to “hypothetical ‘others,’” Opening Br. 79, and

placed unwarranted weight on Sivells’s possession of a shank during a prior period of

incarceration. We disagree that the district court imposed a substantively unreasonable

sentence. The record reflects that the district court discussed Sivells’s status as a leader in

TTG, his criminal history, the need to deter him, the seriousness of his crimes, and the need

to protect the public. The court thus clearly addressed the § 3553(a) factors and explained

the sentence. We find that Sivells has failed to rebut the presumption of reasonableness

and affirm.

B.

Broughton was sentenced to 360 months of imprisonment, which falls within his

Guidelines range of 292–365 months. Broughton alleges (1) the district court procedurally

49 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 50 of 54

erred by applying a two-level enhancement because it found he “used violence, made a

credible threat of violence, or directed the use of violence” under U.S.S.G. § 2D1.1(b)(2);

and (2) that the district court imposed a procedurally and substantively unreasonable

sentence by failing to consider that his criminal history score overstated the seriousness of

his record and his mitigation evidence. Unpersuaded, we affirm his sentence.

“We review findings of fact relating to sentencing enhancements for clear error.”

United States v. McAllister,

(4th Cir. 2001). We find that the district

court did not clearly err in finding that Broughton “used violence, made a credible threat

of violence, or directed the use of violence.” U.S.S.G. § 2D1.1(b)(2). The district court

based its findings on conversations that Broughton had with co-conspirators when he was

tracking the unknown individuals, whom the jury found he conspired to murder. In those

conversations, Broughton directed Barronette and Sivells to “stay with ‘em,” and

exclaimed, “I was for, I was for, I was gonna pow! Hit him right in the head.” J.A. 3044.

We find that the district court did not clearly err in determining that Broughton directed

violence and thus affirm the enhancement.

Broughton also contends his sentence was procedurally unreasonable because the

district court failed to address his several mitigation arguments about his childhood.

At sentencing, the district court said:

Certainly there are mitigating circumstances, about Mr. Broughton’s childhood, the possibility of lead paint poisoning, just difficulties in how he was brought up. I certainly understand that. . . . But there is a very significant need to protect the public here, to recognize the seriousness of the offense, as well as to deter, I believe Mr. Broughton, as well as others generally, that requires a significant sentence, despite the mitigating factors that have been pointed out.

50 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 51 of 54

J.A. 3458. We find that the district court met its minimum requirement by considering and

rejecting the mitigating arguments. The court also engaged counsel on both sides to argue

about the appropriateness of a downward variance. See United States v. Blue,

(4th Cir. 2017) (“Reviewing courts may also infer that a sentencing court gave

specific attention to a defendant’s argument for a downward departure if the sentencing

court engages counsel in a discussion about that argument.”). Thus, we hold that the court

properly addressed Broughton’s arguments and did not procedurally err.

Finally, Broughton contends that his sentence is substantively unreasonable because

the effect of a probation violation overstated his criminal history. Broughton’s sentence is

within his Guidelines range and thus is presumptively reasonable. White,

.

Broughton principally takes issue with the fact that one of his convictions counted toward

his criminal history score even though he originally received a probation-before-judgment

(PBJ) diversionary sentence for an assault conviction in state court. The state court judge

struck the PBJ after Broughton did not complete a required diversionary program and found

Broughton to be in violation of his probation and guilty of the substantive offense of

assault. Broughton asserts that the effects of failing to complete a diversionary program,

i.e., the violation of probation and assault convictions, overstated his criminal history by

giving him a criminal history category of V.

Broughton does not argue that his criminal history category or Guidelines range

were incorrect. He instead contends that it was substantively unreasonable under U.S.S.G

§ 4A1.3(b)(1) for the district court to not depart downward. A district court has discretion

51 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 52 of 54

to depart downward “[i]f reliable information indicates that the defendant’s criminal

history category substantially overrepresents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes[.]” U.S.S.G.

§ 4A1.3(b)(1); see also United States v. Hackley,

(4th Cir. 2011). But

we “lack the authority to review a sentencing court’s denial of a downward departure unless

the court failed to understand its authority to do so.”

(quoting United States v. Brewer,

(4th Cir. 2008)). Thus, we must reject Broughton’s argument that the

district court erred in not granting him a downward departure under U.S.S.G.

§ 4A1.3(b)(1). We affirm Broughton’s sentence.

C.

Floyd was sentenced to 30 years of imprisonment on each count, to be served

concurrently. He brings three challenges to his sentence: (1) the district court procedurally

erred by enhancing his offense levels pursuant to U.S.S.G. § 2A1.5(b)(1); (2) the district

court erred in finding Floyd to be a career offender pursuant to U.S.S.G. § 4A1.1; and (3)

his sentence was procedurally and substantively unreasonable. None of these challenges

are persuasive, and we affirm Floyd’s sentence.

Regarding Floyd’s first argument, U.S.S.G. § 2A1.5(b)(1) provides: “If the offense

involved the offer or the receipt of anything of pecuniary value for the undertaking of

murder, increase by 4 levels.” The district court applied this enhancement based on Floyd’s

role in the attempted murder of Cedric Catchings. The enhancement raised his offense

level for the RICO conspiracy conviction in Count One to 37. However, Floyd’s total

52 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 53 of 54

offense level, regardless of this enhancement, was 43 because of his role in Addison’s

murder. 5 Floyd contends the enhancement added a unit to his offense level. Floyd did

receive a one-level enhancement for the number of units assigned under U.S.S.G. § 3D1.4,

but that enhancement did not impact his total offense level because it was already at the

maximum level of 43. So, even if there was an error in applying this enhancement, the §

2A1.5(b)(1) enhancement did not impact Floyd’s Guidelines range. Further, the district

court stated it would have imposed the same sentence “regardless of the presentence report

[or] advisory guideline calculations[.]” J.A. 3550–51.

We find that any error in applying this enhancement is harmless. “A Guidelines

error is considered harmless if we determine that (1) ‘the district court would have reached

the same result even if it had decided the guidelines issue the other way,’ and (2) ‘the

sentence would be reasonable even if the guidelines issue had been decided in the

defendant’s favor.” United States v. Gomez-Jimenez,

(4th Cir. 2014)

(quoting United States v. Savillon-Matute,

(4th Cir. 2011)). We find

both prongs are satisfied here.

Likewise, we hold that any error in designating Floyd as a career offender is

harmless because that designation did not impact his Guidelines range or sentence. As we

detailed above, Floyd’s total offense level is 43 regardless of any other enhancements,

including the career-offender designation, which gave him a Guidelines range of a life

5 While Floyd appeals the special verdict finding that he conspired to murder Addison, he does not challenge the district court’s independent finding that he conspired to murder Addison, nor did he object to that finding in the PSR.

53 USCA4 Appeal: 19-4123 Doc: 180 Filed: 08/18/2022 Pg: 54 of 54

sentence. Again, the district court said it believed a downward variance of 30 years “is the

reasonable sentence,” regardless of the PSR or “whether the career offender [enhancement]

is or is not accurate.” J.A. 3550–51. We thus hold that any error with designating Floyd

as a career offender is harmless.

Finally, Floyd asserts his sentence is not substantively reasonable because the court

“made no individualized assessment.” Opening Br. 90. We disagree. The district court

discussed Floyd’s individual role in the conspiracy, compared his role to his co-defendants,

and granted a significant downward variance from life to 30 years. We reject the argument

that Floyd’s sentence is substantively unreasonable and affirm his sentence.

XI.

For the above reasons, we REVERSE Pulley’s § 922(g)(1) conviction, VACATE

the judgment as to him, AND REMAND for further proceedings consistent with our

opinion. The remaining convictions and sentences are AFFIRMED.

Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, and 19-4562, AFFIRMED; No. 19-4726, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS

54