United States v. Dricko Huskey
U.S. Court of Appeals for the Fourth Circuit
United States v. Dricko Huskey, 90 F.4th 651 (4th Cir. 2024)
United States v. Dricko Huskey
Opinion
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4565
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DRICKO DASHON HUSKEY, a/k/a Drizzy,
Defendant – Appellant.
No. 20-4572
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RENAIRE ROSHIQUE LEWIS, JR., a/k/a Banz, a/k/a Esco,
Defendant – Appellant.
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No. 20-4573
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALANDUS MONTRELL SMITH, a/k/a Kadafia,
Defendant – Appellant.
No. 20-4574
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JONATHAN WRAY, a/k/a Jon, a/k/a Yungin,
Defendant – Appellant.
Appeals from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, District Judge. (3:17-cr-00134-FDW-DSC-34; 3:17-cr-
00134-FDW-DSC-43; 3:17-cr-00134-FDW-DSC-69; 3:17-cr-00134-FDW-DSC-82)
Argued: October 25, 2023 Decided: January 8, 2023
Before RUSHING and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.
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Affirmed by published opinion. Judge Heytens wrote the opinion, in which Judge Rushing
and Judge Keenan joined.
ARGUED: Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina;
William Stimson Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina; Erin Margaret Trodden, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charlottesville, Virginia; William Robinson Heroy, GOODMAN,
CARR, LAUGHRUN, LEVINE & GREENE PLLC, Charlotte, North Carolina; for
Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee. ON BRIEF: Paul K. Sun, Jr., ELLIS &
WINTERS LLP, Raleigh, North Carolina, for Appellant Jonathan Wray. Daniel Roberts,
GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE PLLC, Charlotte, North
Carolina, for Appellant Renaire Lewis. Juval O. Scott, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant
Alandus Smith. Dena J. King, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
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TOBY HEYTENS, Circuit Judge:
Four people were charged with conspiracy under the Racketeer Influenced Corrupt
Organization Act, 18 U.S.C. § 1962(d), and related crimes involving their membership in
the United Blood Nations (UBN)—a national prison and street gang. After a long trial, all
were convicted. The defendants challenge their convictions and sentences. We conclude
the challenges lack merit and affirm the district court’s judgments.
I.
A.
Because the defendants were convicted after a trial, we describe the evidence “in
the light most favorable to the Government.” United States v. Burgos, 94 F.3d 849, 854
(4th Cir. 1996) (en banc) (citation removed). The defendants were members of the Nine
Trey Gangsters, a UBN “set” with territory in Shelby, North Carolina. JA 455. UBN sets
are hierarchical, with a lineup (or whip) led by, in descending order, a Godfather, High OG
(original gangster), and Low OG. Star generals are under each Low OG, from the highest
ranking five-star general to the lowest ranking one-star. Gang members go by “tags,” or
gang names. JA 753.
UBN members follow a code requiring them, among other things, to follow the
chain of command, defend the gang’s reputation, and pay dues. Members can pay dues by
selling drugs, robbing, and stealing. They are also expected to “put in work” for the gang—
that is, engage in “criminal activity” like assaults, robberies, shootings, or murder, and
generally “do what [they’re] told”—as part of their membership and to elevate in rank.
JA 588, 753.
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Dricko Huskey was a Low OG who “[oversaw] the Shelby area.” JA 600. Huskey
dealt drugs from at least 2013 through his arrest in 2016, including regularly supplying a
higher ranking UBN member. After a public dispute in 2016, Huskey shot and killed
Donnell Murray.
Renaire Lewis was a one-star general. Lewis dealt drugs and participated in a
robbery at the direction of higher ranking UBN members. During that robbery, Lewis fired
gunshots that wounded Tanner Cobb and killed Malik Brown.
Alandus Smith was a high-ranking Nine Trey member, described variously as a Low
OG, a five-star general, and a four-star general. A 2014 search of Smith’s bedroom turned
up a drug ledger revealing Smith’s regular deals with other UBN members. When police
searched Smith’s home during a 2015 arrest, they found $400 in cash,
15 methamphetamine tablets, nine baggies of marijuana, digital scales, and a gun with an
obliterated serial number.
Jonathan Wray was a Nine Trey member of unknown rank. Wray dealt drugs from
at least 2011 to 2015. Wray admitted shooting and killing Christopher Odoms, a member
of the Crips, a rival gang.
B.
Huskey, Lewis, Smith, and Wray were charged along with three others in a 23-count
indictment. (The other three people do not figure into this appeal; we refer to Huskey,
Lewis, Smith, and Wray collectively as “defendants.”)
Count 1 charged all defendants with conspiring to violate RICO for their actions as
UBN members. The government also gave notice of various special sentencing factors on
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that charge that could expose the defendants to additional punishment. The first accused
the defendants of “agree[ing] that multiple acts of murder would be committed” as part of
the RICO conspiracy. JA 218. Other sentencing factors accused Huskey of killing Donnell
Murray, Lewis of killing Malik Brown, and Wray of killing Christopher Odoms.
Lewis faced five more charges. Those charges were: murder in aid of racketeering;
attempted Hobbs Act robbery; attempted murder in aid of racketeering; and two counts of
using and carrying a firearm during and in relation to crimes of violence, one of which
resulted in death.
Smith was charged with four other offenses. Those charges were: possessing
marijuana with intent to distribute it; possessing methamphetamine with intent to distribute
it; possessing a firearm in furtherance of a drug trafficking offense; and possessing a
firearm after being convicted of a felony.
C.
The defendants pleaded not guilty and were tried together. Each unsuccessfully
moved for a judgment of acquittal. Subject to one exception, the jury found the defendants
guilty of every charged offense and responsible for every sentencing factor. The sole
exception involved Huskey. Despite finding him responsible for the murder of Donnell
Murray, the jury declined to find that Huskey “agreed to conduct and participate in the
conduct of the affairs of the [RICO] enterprise through a pattern of racketeering activity
that included acts involving murder.” JA 3570.
The district court sentenced Huskey to life imprisonment, Lewis to life in prison
plus 20 years, Smith to 300 months of imprisonment, and Wray to life imprisonment.
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II.
We begin with the defendants’ sufficiency challenges. We do so because any
defendant who prevails on this point is entitled to a judgment of acquittal without further
proceeding. See Burks v. United States, 437 U.S. 1, 16 (1978) (government gets only one
“fair opportunity to offer whatever proof it [can] assemble”). Despite several evidentiary
challenges (which we discuss in Part III, below) we consider “all the evidence considered
by the jury, both admissible and inadmissible” when assessing a sufficiency challenge.
United States v. Simpson, 910 F.2d 154, 159 (4th Cir. 1990); accord Lockhart v. Nelson,
488 U.S. 33, 40 (1988).
In resolving a sufficiency challenge, we view the evidence in the light “most
favorable to the prosecution” and assume the jury resolved all credibility disputes or
judgment calls in the government’s favor. United States v. Perry, 335 F.3d 316, 320
(4th Cir. 2003). We must uphold the jury’s verdict if “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United States v.
Millender, 970 F.3d 523, 528 (4th Cir. 2020). Applying these standards, we conclude the
defendants have not met their “heavy burden” to show their convictions were not supported
by substantial evidence. United States v. Davis, 75 F.4th 428, 437 (4th Cir. 2023)
(quotation marks removed).
A.
All four defendants challenge the sufficiency of the evidence to support their RICO
conspiracy convictions. Those convictions “require[d] proof that: (1) an enterprise
affecting interstate commerce existed; (2) each defendant knowingly and intentionally
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agreed with another person to conduct or participate in [its] affairs; and (3) each defendant
knowingly and willfully agreed that he or some other member of the conspiracy would
commit at least two racketeering acts” in furtherance of the conspiracy. United States v.
Zelaya, 908 F.3d 920, 926 (4th Cir. 2018) (quotation marks removed). As relevant here,
“racketeering activity” includes murder, robbery, and controlled substances offenses that
violate state law. 18 U.S.C. § 1961(1).
1.
Huskey alone argues there was insufficient evidence to establish that he was a UBN
member, thus defeating any claim he agreed to conduct or participate in the enterprise’s
affairs. We are unpersuaded. True, “the RICO conspiracy statute does not criminalize mere
association with” a RICO enterprise and requires a “knowing agreement to participate” in
its affairs. United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (quotation marks
removed). But we have reviewed the evidence and conclude it was sufficient to show
Huskey’s knowing agreement to participate in the UBN’s activities. Two former members
identified Huskey as a UBN member. The witnesses discussed Huskey’s UBN activities,
including his leadership roles and participation in disciplining other UBN members. Law
enforcement witnesses also identified social media posts and photos of Huskey with other
UBN members, wearing gang-affiliated colors and using gang signs. The jury reviewed
Huskey’s text messages and social media, which used UBN slang and otherwise reflected
gang membership. Along with other evidence in the record, this evidence made it
reasonable for the jury to find Huskey agreed to participate in the RICO enterprise’s affairs.
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2.
All four defendants insist there was no evidence to establish the third element—that
their criminal activities related to the UBN’s affairs. Per this argument, each defendant’s
drug trafficking, robberies, and murders were personal pursuits by people who happened
to be affiliated with the UBN. And because this criminal activity was personal, not gang
related, the defendants say the government failed to prove they “knowingly and willfully
agreed that” they, or someone else in the conspiracy, “would commit at least two
racketeering acts.” Zelaya, 908 F.3d at 926 (quotation marks removed).
Here too, we are unconvinced. The jury heard evidence that UBN members
regularly trafficked drugs to pay dues to UBN, that UBN members are expected to respond
to public displays of disrespect (at issue with Huskey’s murder of Murray and Wray’s
murder of Odom) with violence, and that UBN members are expected to “put in work”
(JA 753)—including committing violent crimes—as part of gang membership. Along with
the other evidence in the record, this evidence made it reasonable for the jury to find that
defendants’ drug trafficking, robberies, and murders were committed in relation to the
UBN enterprise.
3.
Unlike the other three defendants, the jury was not asked to—and did not—find
Smith personally committed any murders. From that, Smith argues the government did not
show he agreed he “would commit at least two racketeering acts.” Zelaya, 908 F.3d at 926
(quotation marks removed). But the government was not required to show each defendant
committed each type of racketeering act charged in the indictment. See United States v.
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Barronette, 46 F.4th 177, 207 (4th Cir. 2022) (“RICO conspiracy does not requir[e] the
Government to prove each conspirator agreed that he would be the one to commit two
predicate acts.” (quotation marks removed)). Instead, proving a RICO conspiracy charge
requires showing each defendant “knowingly and willfully agreed that he or some other
member of the conspiracy would commit at least two racketeering acts.” Zelaya, 908 F.3d
at 926 (emphasis added) (quotation marks removed). For that reason, Smith’s conviction
on Count 1 is valid if the government proved he agreed that at least two racketeering acts
would be committed as part of the criminal enterprise. See Barronette, 46 F.4th at 207
(“attribut[ing]” murder committed by some appellants “to each [a]ppellant as members of
the RICO enterprise”).
The government met that burden. The jury found, through a special sentencing
factor, that Smith agreed multiple acts of murder would be committed as part of his UBN
activities. The finding was supported by evidence that UBN members were expected to
engage in criminal activity—including “to potentially kill someone for the gang” (JA
588)—as part of membership, and by Smith’s high rank within the organization.
Smith challenges this latter point, asserting his rank alone does not permit an
inference he agreed murders would be committed as part of the UBN enterprise. To support
this argument, Smith cites United States v. Barnett, 660 Fed. Appx. 235 (4th Cir. 2016),
for the proposition that “simply being a member of the gang is not sufficient to show that
the person engaged or agreed that someone else would engage in two predicate racketeering
acts.” Oral Arg. 15:08. But Barnett is a weak reed to rely on, both because it is unpublished
and because the defendant whose conviction was vacated in that case was not a UBN
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member at all—much less a high-ranking one like Smith. See Barnett, 660 Fed. Appx. at
248.
Smith is right that “the RICO conspiracy statute does not criminalize mere
association with an enterprise.” Mouzone, 687 F.3d at 218 (quotation marks removed). But
high-ranking members like Smith are not merely associated with the UBN. The jury could
reasonably have inferred from Smith’s high rank that he knew about and agreed to UBN’s
overall objectives—which, substantial evidence showed, included murders. Nothing more
was required. See United States v. Cornell, 780 F.3d 616, 624 (4th Cir. 2015) (“The
partners in the criminal plan need only agree to pursue the same criminal objective,
regardless of whether that criminal objective is ever stated or carried out.” (quotation marks
removed)).
4.
For similar reasons, Lewis’s and Wray’s sufficiency challenges to the sentencing
factors fail too. Indeed, Lewis and Wray conceded their participation in the enterprise, and
the jury found they both personally committed at least one murder. Along with the other
evidence, this was sufficient to support the jury’s verdict.
B.
Lewis also raises sufficiency challenges to four of the five counts unique to him.
(Lewis does not contest sufficiency on Count 13, which charged him with attempted Hobbs
Act robbery.) Each challenge fails.
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1.
Counts 12 and 15 charged Lewis with murder in aid of racketeering and attempted
murder in aid of racketeering. Both convictions stem from a robbery where Lewis fired
shots that killed one victim and wounded another. Lewis argues the robbery and resulting
murder and attempted murder were a “personal thing” unrelated to the UBN. Defs. Consol.
Br. 56 (quoting JA 2767–68 (coconspirator’s testimony)). But the evidence showed Lewis
was recruited by another UBN member to participate in the robbery, committed the robbery
with other UBN members, and followed orders from UBN superiors when disposing of the
guns after the robbery. The evidence also showed UBN members were expected to commit
violent crimes such as robberies and murders on behalf of the gang. It was thus not
unreasonable for the jury to conclude the government met its burden to show Lewis
“committed his violent crime because he knew it was expected of him by reason of his
membership in the enterprise or that he committed it in furtherance of that membership.”
Zelaya, 908 F.3d at 927 (quotation marks removed).
2.
Count 14 charged Lewis with using a firearm during and in relation to a crime of
violence resulting in death. Tracking the indictment, the district court instructed the jury
on two alternative theories for the underlying crime: murder in aid of racketeering as
charged in Count 12 and attempted Hobbs Act robbery as charged in Count 13. Lewis did
not object to this instruction or otherwise argue before the district court that Count 12 or
Count 13 could not serve as a valid predicate. The jury found Lewis guilty on Count 14
without specifying the predicate(s) on which that finding was based.
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More than two and a half years later, the Supreme Court held one of the predicates
charged in Count 14—attempted Hobbs Act robbery—does not qualify as a crime of
violence under the relevant statute. See United States v. Taylor, 142 S. Ct. 2015, 2025–26
(2022). Smith raises Taylor in his opening brief, but the ask he makes of us is narrow.
Smith does not challenge the district court’s jury instructions—a claim that would be
reviewed only for plain error given Smith’s failure to raise the issue in the district court.
See Fed. R. Crim. P. 52(b). Nor does Smith argue that the district court’s instructing the
jury on something Taylor holds is a legally invalid predicate (attempted Hobbs Act
robbery) requires vacating his conviction on Count 14 even if the evidence was sufficient
to support the still-valid predicate (murder in aid of racketeering). See generally Yates v.
United States, 354 U.S. 298 (1957). As a result, any such arguments are forfeited, and we
decline to consider them. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th
Cir. 2017).
The argument Lewis presses is far more limited. Lewis argues that, after Taylor, the
attempted Hobbs Act theory is not supported by law and he is entitled to a judgment of
acquittal on Count 14 because the other theory—murder in aid of racketeering as charged
in Count 12—failed for insufficient evidence. Because we conclude the evidence was
sufficient to support Count 12, see Part II(B)(1), supra, we reject this argument as well.
3.
Like Count 14, Count 16 accused Lewis of using and carrying a firearm during and
in relation to a crime of violence—this time, the attempted murder in aid of racketeering
charged in Count 15. Lewis’s two-paragraph sufficiency challenge to Count 16 simply
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reprises his sufficiency challenge to Count 15. And because we have already rejected the
latter claim, see Part II(B)(1), supra, we reject this one as well.
C.
Smith’s remaining sufficiency challenges also fail. Smith does not dispute the
adequacy of the evidence supporting his convictions for possessing marijuana with the
intent to distribute it (Count 17) or possessing a firearm after being convicted of a felony
(Count 20). Instead, Smith says the government failed to present sufficient proof that he
possessed methamphetamine with the intent to distribute it (Count 18) or that he possessed
a firearm in furtherance of a drug trafficking offense (Count 19). Neither claim succeeds.
1.
When Smith was arrested, the police seized 15 methamphetamine pills. The seized
pills were packaged together, not separately—which Smith argues rebuts any intent to
distribute. But the arresting officers testified 15 pills were a “distribution amount.”
JA 1760–61, 1780; see JA 1738 (methamphetamine was “more than a user amount”). A
reasonable jury could conclude that this evidence, along with Smith’s Facebook messages
and a drug ledger showing Smith conducted a drug business over a long time, supported
Smith’s methamphetamine conviction.
2.
The government also showed Smith possessed a firearm in furtherance of a drug-
trafficking offense. “Furtherance” is defined broadly to mean “advanc[ing]” or “help[ing]
forward,” and includes possessing a gun to protect the drugs or the drug distributor or to
use “as an enforcement mechanism in a dangerous transactional business” or “serve as a
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visible deterrent.” United States v. Moore, 769 F.3d 264, 270 (4th Cir. 2014) (quotation
marks removed). When Smith was arrested, police found a gun with an obliterated serial
number alongside the evidence of his drug-trafficking offenses. We do not hold that the
gun’s proximity to the drugs, standing alone, would be enough. But that proximity, coupled
with the obliterated serial number and the other evidence—which tends to suggest the gun
was used in connection with illegal activity—supports Smith’s Section 924(c) conviction.
III.
Having concluded this is not among the “rare” cases requiring reversal for
insufficient evidence, United States v. Haas, 986 F.3d 467, 477 (4th Cir. 2021) (quotation
marks removed), we turn to the evidentiary challenges. Lewis argues the district court
should not have admitted his un-Mirandized statements or a text message chain between
him and a still-unknown person. Huskey says the district court should have admitted certain
grand jury testimony and unsworn informant statements. On each issue, we see no
reversible error.
A.
1.
Lewis asserts the district court should have suppressed certain statements he made
because he was not given Miranda warnings at a meeting his attorney arranged and during
which he had an attorney present with whom he could—and did, in fact—consult. The
district court rejected that argument, and so do we.
Lewis identifies no decision from any court concluding Miranda warnings are
required under such circumstances. To the contrary, “[i]t is generally accepted that if [an]
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attorney was actually present during the interrogation, then this obviates the need for the
warnings.” 2 Wayne R. LaFave et al., Crim. Proc. § 6.8(a) (4th ed. 2023) (LaFave).
We need look no further than Miranda itself to see why Lewis’s challenge is
misplaced. In that case, the Supreme Court recognized that both the constitutional rights
not to “be compelled . . . to be a witness against [one]self,” U.S. Const. amend. V, and to
have “the Assistance of Counsel” in one’s defense, U.S. Const. amend. VI, could be “put
in jeopardy” by “official overbearing.” Miranda v. Arizona, 384 U.S. 436, 442 (1966). To
ensure the “constitutional rights of the individual could be enforced against overzealous
police practices,” that Court held that “the prosecution may not use statements . . .
stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.” Id. at
444. As the Court explained, the Miranda warnings protect people who have been “thrust
into an unfamiliar atmosphere and run through menacing police interrogation procedures”
“created for no purpose other than to subjugate the individual to the will of his examiner.”
Id. at 457.
Such circumstances are absent here. For one thing, this was not a government-
created atmosphere. Instead, “[t]he interview was arranged ahead of time, and with the
assistance of [Lewis’s] counsel.” JA 3585. 1 What is more, Lewis had counsel present the
entire time and even consulted privately with his lawyer during a break in the interview.
1
According to a leading treatise, “there is a split of authority” about whether
Miranda warnings are required when the defendant’s attorney “arranged for the contact”
but “was not present” during the questioning. 2 LaFave § 6.8(a).We need not consider that
issue here.
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The facts here well-illustrate the Supreme Court’s observation in Miranda that “[t]he
presence of counsel . . . would be the adequate protective device necessary to make the
process of police interrogation conform to the dictates of the privilege” against compulsory
self-incrimination. 384 U.S. at 466.
Against all this, Lewis cites just one case: Sweeney v. Carter, 361 F.3d 327 (7th Cir.
2004). That decision does not help him. True, Sweeney rejected the idea that a suspect’s
pre-interrogation conversations with counsel “can double for the usual warnings given by
law enforcement officers” in situations where warnings would otherwise be required. Id.
at 331. But the court ultimately held Sweeney had “knowingly and voluntarily waived his
Miranda rights” despite not having been given Miranda warnings. Id. The reasons the court
gave were that Sweeney had counsel during the meeting, discussed the possibility of
cooperation with counsel before the meetings, and attended the meetings for the purpose
of cooperating with authorities. Id. This situation is not materially different. We thus reject
Lewis’s Miranda claim.
2.
Lewis also insists the district court should not have admitted a text message
exchange between him and an unknown declarant under Federal Rule of Evidence
801(d)(2)(E). Reviewing that decision “for an abuse of discretion[,]” United States v.
Lighty, 616 F.3d 321, 351 (4th Cir. 2010), we see none here.
At trial, Lewis objected to the admission of the following exchange, which occurred
the night before the robbery and murder of Malik Brown (for which the jury found Lewis
responsible):
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Unidentified: yoooo
Unidentified: another lick even sweeter
Lewis: What’s goodie
Unidentified: remember that [n-word] that pulled up at my crib with
the Beamer
Lewis: Yea
Unidentified: gotta get that [n-word]
Unidentified: he got the trees and bread
Lewis: Gz
SA 1, ECF 84.
Unless an exception applies, hearsay “is not admissible” in federal trials. Fed. R.
Evid. 802. Hearsay is generally defined as an out-of-court statement offered “to prove the
truth of the matter asserted in the statement.” Id. at 801(c)(2). But Rule 801(d), in turn,
excludes from that definition certain statements that would otherwise qualify as hearsay.
As relevant here, Rule 801(d)(2)(A) and (E) provide that “[a] statement . . . is not hearsay”
if it “is offered against an opposing party and” “(A) was made by the party in an individual
or representative capacity” or “(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.”
As much as Lewis’s brief can be read as suggesting the entire thread should not have
been admitted, that is plainly wrong. Lewis admits he made the three statements attributed
to him—“What’s goodie,” “Yeah,” and “Gz.” Those statements are thus excluded from the
definition of hearsay by Rule 801(d)(2)(A) and could not properly be excluded under Rule
802.
That leaves the statements by the other person. The messages were retrieved from
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Lewis’s phone, and the government admitted it did not have evidence about the declarant
beyond the statements themselves. The government still argued—and the district court
agreed—that the unknown declarant’s statements were admissible under Rule
801(d)(2)(E). We see no abuse of discretion in that conclusion, and thus need not address
the government’s alternative arguments for admissibility.
As this Court has explained, Rule 801(d)(2)(E) does not require “the offering party
to identify the declarant by name.” United States v. Ayala, 601 F.3d 256, 268 (4th Cir.
2010). “Instead, the offering party need only show that the unknown declarant was more
likely than not a conspirator.” Id. (quotation marks removed). As with other “preliminary
[factual] questions” relevant to admissibility, a district court’s ruling on this point is
“subject to a clearly erroneous standard of review.” United States v. Blevins, 960 F.2d
1252, 1255(4th Cir. 1992); see Bourjaily v. United States,483 U.S. 171, 181
(1987).
The district court made no clear error in concluding the government met its burden.
The government introduced evidence that, in UBN slang, “lick” means “robbery” (JA 606),
“trees” means “cannabis” (JA 850), “bread” means “money” (JA 797), and “gz” means
“okay” (JA 2750). The government also introduced evidence that, the day after the text
message exchange, Lewis tried to rob Malik Brown for “[s]ome weed.” JA 2748.
Testimony further established UBN members regularly committed robberies as part of their
duties to the UBN. Because the messages contained UBN slang and discussed UBN
business that happened the next day, it was reasonable for the district court to conclude the
unknown declarant was “more likely than not a conspirator.” Ayala, 601 F.3d at 268
(quotation marks removed). We thus hold the district court committed no abuse of
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discretion in admitting the text messages. 2
B.
We turn now to Huskey’s evidentiary challenges. Unlike Lewis’s efforts to keep
evidence out, Huskey claims the district court erred in preventing him from introducing
two types of evidence. Still reviewing the district court’s evidentiary rulings for abuse of
discretion, Lighty, 616 F.3d at 351, we again see none.
1.
Huskey challenges the district court’s exclusion of grand jury testimony by a former
UBN member who said Huskey was in the UBN “a long time ago” but “got kicked out.”
U.S. Br. 35 (quoting relevant testimony). There is no doubt those statements constitute
hearsay and were inadmissible unless an exception applies. But Huskey argues the
statements should have been admitted under Federal Rule of Evidence 804(b)(1). That
hearsay exception has three requirements. First, “the declarant [must be] unavailable as a
witness.” Fed. R. Evid. 804(b); see id. at 804(a) (defining unavailability). Second, the
statements must have been “given as a witness at a trial, hearing, or lawful deposition.” Id.
at 804(b)(1)(A). Third, the statements must be “now offered against a party who had . . .
an opportunity and similar motive to develop [the statements] by direct, cross-, or redirect
examination.” Id. at 801(b)(1)(B).
Most of these requirements are satisfied. The government concedes the former UBN
Despite passing references to the Confrontation and Due Process Clauses, Lewis’s
2
brief makes no separate constitutional argument. Any such claim is thus forfeited.
See Grayson O Co., 856 F.3d at 316.
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member was unavailable as a witness at Huskey’s trial. See Oral Arg. 26:30–27:06. No one
denies grand jury testimony satisfies the requirement that the prior statement have been
“given as a witness at a trial, hearing, or lawful deposition.” Fed. R. Evid. 804(b)(1)(A);
accord United States v. Salerno, 505 U.S. 317, 321 (1992) (noting parties’ concession on
that point). And the government had an opportunity to develop the unavailable witness’s
testimony—after all, the government summoned that witness to appear before the grand
jury in the first place.
The only question is thus whether the district court abused its discretion in
concluding the government lacked a similar motive during the grand jury proceeding
compared to the one it would have had at trial. That requirement is a precondition for
admitting hearsay statements under Rule 804(b)(1)(B), and we have no authority to slight
it. See Salerno, 505 U.S. at 321 (emphasizing that “[n]othing in the language of Rule
804(b)(1) suggests that a court may admit former testimony absent satisfaction of each of
the Rule’s elements” and declining to prevent the government from benefiting from the
“similar motive requirement” in criminal cases).
The government argues—and we agree—that the Second Circuit’s decision in
United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en banc), sets out the appropriate
legal standard. As that decision recognized, “[w]hether the degree of interest in prevailing
on an issue is substantially similar at two proceedings will sometimes be affected by the
nature of the proceedings.” Id. at 912. “Where both proceedings are trials and the same
matter is seriously disputed . . ., it will normally be the case that the side opposing the
version of a witness at the first trial had a . . . similar . . . motive [as] at the second trial.”
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Id. In contrast, grand jury proceedings differ from trials in many ways. Prosecutors often
use grand juries “to investigate possible crimes and identify possible criminals” rather than
simply secure an indictment—something that can make it “quite unrealistic to characterize
the prosecutor as the ‘opponent’ of a witness’s version.” Id. at 913. And even when a
prosecutor is seeking an indictment, the lower burden of proof at the grand jury stage
(probable cause versus beyond a reasonable doubt) means the prosecutor does not
“necessarily” have “a motive to challenge [exculpatory grand jury] testimony that is similar
to the motive at trial.” Id.; see id. (identifying other reasons why a prosecutor’s motives
may differ between a grand jury proceeding and trial).
Like the Second Circuit, we reject any per se rule “that the prosecutor’s motives at
the grand jury and at trial are almost always dissimilar” or “that the prosecutor’s motives
in both proceedings are always similar.” DiNapoli, 8 F.3d at 914. Instead, “the inquiry as
to similar motive must be fact specific.” Id. The ultimate question is “whether the party
resisting the offered testimony at a pending proceeding had at a prior proceeding an interest
of substantially similar intensity to prove (or disprove) the same side of a substantially
similar issue.” Id. at 914–15.
Applying those standards here, we hold the district court committed no abuse of
discretion. The government emphasizes the witness testified before the grand jury “that she
had joined the UBN 15 years earlier, had actively participated in the gang only for
approximately three years, and . . . no longer saw or talked to UBN members.” U.S. Br. 97.
Had the witness testified at trial, the government asserts it “would have vigorously cross-
examined her, likely emphasizing her lack of connection to the UBN in Shelby and her
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inability to provide any supporting details, including even a loose estimate of when Huskey
was kicked out of the gang.” Id.
To be sure, forgone cross-examination is not a conclusive factor, see DiNapoli,
8 F.3d at 914, but we find it particularly indicative of the government’s motive here. Far
from resisting the witness’s offered testimony, our review of the relevant grand jury
transcript shows the prosecutor quickly moved from topic to topic, limiting any follow up
questions to mere clarification. The district court permissibly concluded the prosecutor was
not testing the witness’s account but “trying to learn things about the case” and “determine
whether there was sufficient evidence by probable cause for indictment.” JA 2877. We thus
hold the district court committed no abuse of discretion in excluding the grand jury
testimony.
2.
Huskey’s other evidentiary argument is that the district court abused its discretion
by refusing to admit statements by confidential FBI informants under Federal Rule of
Evidence 807. That is a big swing, and it does not connect.
Rule 807 is captioned “Residual Exception.” It provides that even hearsay
statements that would otherwise be inadmissible are not “excluded by the rule against
hearsay” so long as:
(1) the statement is supported by sufficient guarantees of trustworthiness—
after considering the totality of circumstances under which it was made
and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts.
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Fed. R. Evid. 807(a). This exception is “used very rarely, and only in exceptional
circumstances.” United States v. Heyward, 729 F.2d 297, 299–300 (4th Cir. 1984)
(quotation marks removed).
The district court committed no abuse of discretion in concluding such exceptional
circumstances were lacking. Huskey argues the unsworn statements contain “sufficient
guarantees of trustworthiness,” Fed R. Evid. 807(a)(1), because lying during FBI
interviews would defeat the purpose of cooperating as an informant. But the district court
did not exceed its discretion in concluding the statements here cannot be accepted as
reliable. For one, the statements are internally inconsistent, with one informant saying
Huskey was stripped of his rank but was still a UBN member and another saying Huskey
was kicked out of the group and had a hit out on his head. The unsworn statements also
contradicted undisputed evidence. For example, Huskey’s presentence report does not
show any arrests for December 2012, which casts doubt on the reliability of an informant’s
statement that, during that month, Huskey was cooperating with law enforcement while in
jail to reduce his time. What is more, the informant’s claim that Huskey moved out of the
Shelby area after a “hit” was placed on his head by the UBN in 2012 is hard to square with
trial testimony showing that Huskey was selling drugs in Shelby’s UBN-controlled
territories in 2013 and to Nine Trey leadership all the way up to his 2016 arrest. We thus
conclude the district court did not act arbitrarily or irrationally in excluding the informants’
internally inconsistent and uncorroborated unsworn statements to the FBI.
IV.
Wray challenges two features of the government’s closing argument and one aspect
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about how the district court instructed the jury. Here too, we see no reversible error.
A.
Wray made no objections during the government’s closing. As a result, his
challenges are reviewed only for plain error under Federal Rule of Criminal Procedure
52(b). To meet that “difficult” standard, it is not enough for Wray to establish there was an
error. Puckett v. United States, 556 U.S. 129, 135 (2009). Rather, Wray also must show
that: (a) any error was plain; (b) the error affected substantial rights, “meaning that there is
a reasonable probability that, but for the error, the outcome of the proceeding would have
been different”; and (c) “the error had a serious effect on the fairness, integrity or public
reputation of judicial proceedings.” United States v. Heyward, 42 F.4th 460, 465 (4th Cir.
2022) (quotation marks removed). Wray has “the burden of establishing each of ” these
elements, Greer v. United States, 141 S. Ct. 2090, 2097 (2021), and he fails to carry it.
1.
To begin, we perceive no reversible error in Wray’s “Golden Rule” arguments. The
government briefly asked the jury to “[i]magine you’re Chris Odoms” at “a party where
you think you’re safe from violence.” JA 3502. According to Wray, these remarks crossed
the line by “urg[ing] jurors to identify individually with the victim[ ].” United States v. Al-
Maliki, 787 F.3d 784, 795 (6th Cir. 2015). On the other hand, the government never took
the second step of asking the jurors to approach their task as they imagined Odoms might
want them to or to punish Wray as they would have wanted had they been the victim of the
charged crimes. See Leathers v. General Motors Corp., 546 F.2d 1083, 1085–86 (4th Cir.
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1976); accord Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741 & n.10 (5th Cir. 1978).
In the end, we need not decide whether the remarks Wray challenges were
improper—much less clearly or obviously so—because we conclude Wray failed to satisfy
the third plain error requirement by showing any error affected his substantial rights.
Wray’s argument that the comments “encouraged the jurors to convict” based on
“sympathy,” Defs. Consol. Br. 82, does not satisfy us that the comments affected his
substantial rights.
2.
Wray fails to show that the government obviously engaged in improper witness
vouching or that any such vouching affected his substantial rights. “Vouching generally
occurs when the prosecutor’s actions are such that a jury could reasonably believe that the
prosecutor was indicating a personal belief in the credibility of the witness.” United States
v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993).
On appeal, Wray identifies three comments he claims were problematic. The first
occurred when, after summarizing evidence from testifying witnesses, a prosecutor said
those witnesses were “not making [ ] up” their identifications of Wray. JA 3374. But the
prosecutor immediately followed up that statement by saying: “The credibility of the
witness is for you to decide. You. Not myself, not any of these fine lawyers here.” Id. The
prosecutor then made a permissible argument about credibility—noting that, although
government witnesses benefit from testifying at trial, this sort of testimony is common in
a case like this and only works because it is in the witness’s interest to be honest.
See JA 3374; see also United States v. Jones, 471 F.3d 535, 544 (4th Cir. 2006)
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(prosecutor’s statement that “given the circumstances of a plea agreement . . . it is more in
the subject’s interest to be honest than to be dishonest” was a permissible argument about
credibility (quotation marks removed)). In our view, it is neither clear nor obvious that a
reasonable juror would have believed the prosecutor was expressing an improper personal
belief in the credibility of the witnesses.
The other two comments Wray challenges were made by a different prosecutor
during the government’s rebuttal. Both were framed as responses to something a defense
lawyer said during their own closing argument that the government sought to cast as
endorsing a government witness’s testimony. In one such instance, the prosecutor
“thank[ed]” Wray’s counsel for “vouch[ing] for the credibility of ” a government witness
by describing the witness as “very believable” and “telling the truth” and stated that the
government “agree[d]” the witness “was very believable.” JA 3498–99. The other example
was when the prosecutor “thank[ed]” Smith’s attorney for “vouching for the truthfulness
of ” a government witness by “salut[ing]” the witness “for coming here and telling his story
and telling truth” and stated that “the Government would agree” the witness “came here
and he told the truth.” JA 3509.
Whether these comments “indicate[ ] a personal belief in the credibility or honesty
of a witness” and “prejudicially affected the defendant” is a closer question. United States
v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). The government concedes at least one
statement was “stronger than it should have been” but maintains the statements were not
misrepresentations and did not amount to improper vouching. Oral Arg. 41:14–25. We
need not decide whether the prosecutor’s admittedly strong statements constituted
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improper vouching, much less clearly or obviously so. Instead, we hold that Wray fails to
satisfy his burden to show that any error affected his substantial rights.
Wray insists the jury would have had reason to question the credibility of the two
witnesses for whom the prosecutor vouched because those witnesses were “testifying in
exchange for compensation, protection, or sentencing consideration from the
Government.” Defs. Consol. Br. 80. But that credibility argument alone cannot satisfy
Wray’s burden of showing that—without the prosecutor’s comments—there is a
reasonable probability the outcome of the proceeding would have been different.
See United States v. Odum, 65 F.4th 714, 722 (4th Cir. 2023). Having “examine[d] the
record as a whole,” we conclude Wray fails to satisfy the substantial rights requirement.
United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). 3
B.
Wray’s jury instruction challenge also fails. We “review a district court’s decision
to give a particular jury instruction for abuse of discretion . . . and review whether a jury
instruction incorrectly stated the law de novo.” United States v. Miltier, 882 F.3d 81, 89
(4th Cir. 2018). “This review requires us to consider the jury instruction in light of the
whole record, to determine whether it adequately informed the jury of the controlling legal
principles without misleading or confusing the jury to the prejudice of the objecting party.”
United States v. McCauley, 983 F.3d 690, 694 (4th Cir. 2020) (quotation marks removed).
3
Wray’s brief also takes passing shots at other comments he claims were “improper
remarks . . . about defense counsel.” Defs. Consol. Br. 84–85. Because Wray fails to
“develop [any] argument” about those remarks—none of which were objected to at trial—
any claim based on them is doubly forfeited. See Grayson O Co., 856 F.3d at 316.
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To understand Wray’s argument, it is necessary to explain a seemingly unrelated
portion of the trial. During closing argument, Lewis’s counsel criticized the government
for not playing a video showing an interview of a government witnesses or providing an
FBI agent’s written summary of that interview. The district court called a sidebar and
admonished counsel that “you can’t put the burden on the Government to present evidence
favorable to your client.” JA 3430. The court immediately told the jury to disregard
counsel’s argument “that certain documents should be put on the document camera.”
JA 3435. After all defense closing arguments concluded, the court told the jury it “want[ed]
to add to an earlier instruction I gave you, an oral instruction after a sidebar.” JA 3497.
Referencing its earlier statement “that the Government cannot be held responsible for
documents that the Government under the Federal Rules of Evidence [ ] couldn’t introduce
[to] you,” the court added the same principle “also applies to some reference of videos that
were taken by the Government.” Id.
Wray objected before the court’s second instruction, arguing it might leave the jury
with the impression the government had additional inculpatory evidence it could have
presented to the jury if not for the Federal Rules of Evidence. On appeal, Wray argues the
first instruction was specific to Lewis’s counsel’s statement, but the second instruction was
broader and legally erroneous because the court could not know that unspecified
documents and videos were barred by the rules of evidence.
Wray’s argument misreads the context of the district court’s instruction. As noted
above, the second argument began with a direct reference to the first. The court then
clarified that its instruction about the documents mentioned in Lewis’s closing argument
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also applied to any reference to videos. This second instruction is no broader than the first,
which Wray does not argue was legally erroneous. Additionally, the district court carefully
explained to counsel that the defendants could discuss a “lack of evidence” but could not
“accuse[ ]” the government of having “access to evidence that could be beneficial to the
defendant and blam[e] the Government for not producing that.” JA 3538. We see no abuse
of discretion here.
V.
All four defendants challenge their sentences. We reject each argument.
A.
Huskey and Wray assert the district court erred in sentencing them to life
imprisonment on the RICO conspiracy count. We disagree.
The statutory maximum sentence for a RICO offense is generally 20 years.
See 18 U.S.C. § 1963(a). But the maximum penalty increases to life imprisonment if the
RICO “violation is based on a racketeering activity for which the maximum penalty
includes life imprisonment.” Id. Because murder is a form of racketeering activity,
see § 1961(1), whose maximum sentence is life imprisonment, see § 1111(b), Huskey and
Wray are subject to that increased maximum sentence if their RICO violations were “based
on” the racketeering activity of murder.
The Sixth Amendment requires that “any fact”—here, that murder was one of the
relevant racketeering acts—“that increases the penalty for a crime beyond the [otherwise]
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Seeking to comply with
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Apprendi, the indictment charged, and the jury was asked to determine, the presence or
absence of various special sentencing factors. Special Sentencing Factor 1 alleged that all
the defendants, “[a]s part of their agreement to conduct and participate in the conduct of
the affairs of the UBN enterprise through a pattern of racketeering activity, . . . agreed that
multiple acts of murder would be committed.” JA 218. Special Sentencing Factor 2 accused
Wray of killing Christopher Odoms “willfully with malice and after premeditation and
deliberation.” Id. And Special Sentencing Factor 6 charged Huskey with killing Donnell
Murray “willfully with malice and after premeditation and deliberation.” JA 219–20. The
jury answered Special Sentencing Factor 1—the multiple murders accusation—“yes” with
respect to Wray but “no” with respect to Huskey. The jury answered “yes” to both Special
Sentencing Factors 2 and 6, which accused Huskey and Wray of specific individual
murders. The district court sentenced both Huskey and Wray to life imprisonment on the
RICO conspiracy count.
Huskey and Wray challenge the district court’s ability to increase their maximum
sentence based on the jury’s individual murder findings. Huskey argues the district court
could not impose a life sentence because the jury declined to find Special Sentencing
Factor 1 as to him, and, at least as to him, “both special sentencing factors [were] required
to support a sentence above twenty years.” Defs. Consol. Br. 96. Wray similarly argues
that Special Sentencing Factor 2 “could not be used to increase Wray’s statutory maximum,
because it was not a finding that Wray’s RICO conspiracy conviction was based on the
killing of Odoms.” Id. at 109.
We see no reversible error. The record is clear that everyone involved understood
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the purpose of the special sentencing factors was to comply with Apprendi and assess the
defendants’ eligibility for an enhanced sentence. But neither Huskey nor Wray objected to
the indictment or the verdict form on the ground that Sentencing Factors 2 and 6 were
insufficiently tied to the RICO conspiracy charge. Neither Huskey nor Wray made this
argument when the parties and the court discussed the language of possible jury
instructions explaining the verdict form. And when the district court suggested the
language of the verdict form itself was sufficient without a jury instruction, neither Huskey
nor Wray objected. To the extent that Huskey and Wray now argue the special verdict form
should have been clearer or did not adequately describe what the jury needed to find, that
claim is forfeited, and we conclude any error was not clear or obvious.
The only remaining question is whether the evidence was sufficient to support a
finding on Special Sentencing Factors 2 and 6—that Huskey murdered Donnell Murray
and that Wray murdered Christopher Odoms—as part of their agreement to participate in
the UBN enterprise. We have already concluded that it is. See Part II(A)(2), supra. For that
reason, the district court did not err in concluding that the jury’s findings were sufficient
to trigger an increased statutory maximum sentence under 18 U.S.C. § 1963(a).
Like the district court, we reject Huskey’s assertion that “the jury found the murder
had nothing to do with the RICO conspiracy.” Defs. Consol. Br. 94. Because the jury had
to first find the defendants guilty of the RICO conspiracy offense before it could find the
sentencing factors, the verdict form made clear the question presented in the sentencing
factors related to the RICO conspiracy offense. See JA 3570, 3577 (verdict form referring
to “the offense charged in Count One”). The jury thus found the RICO violation was “based
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on” the racketeering activity of murder, and the district court in turn had authority to impose
a life sentence. 18 U.S.C. § 1963(a).
Huskey and Wray raise two other arguments that need not detain us long. As for
Huskey, we disagree with his assertion that the jury’s failure to find Special Sentencing
Factor 1—that Huskey agreed “multiple acts of murder” would be committed as part of his
agreement to participate in UBN affairs (JA 218)—prevented the district court from
imposing a life sentence. Although it was necessary for the jury to find Huskey guilty on
Count 1 before it could answer the questions posed by the sentencing factors, it was
unnecessary for the jury to answer one sentencing factor before reaching the other or to
answer the same way on both sentencing factors. This does not mean, as Huskey asserts,
that “[S]entencing [F]actor 1 did not mean anything.” Defs. Consol. Br. 96. Rather, it
means the indictment gave the government two options for triggering an enhanced
sentence. (Indeed, it appears any other reading would deprive Sentencing Factors 2 and 6
of independent legal effect.)
Wray’s argument that his life sentence is invalid because the evidence could not
support the jury’s finding on Special Sentencing Factor 1 fails twice over. For one thing,
we have already concluded the evidence was sufficient to support that finding. See
Part II(A)(4), supra. Second, we conclude that the evidence was sufficient to support the
jury’s finding on Special Sentencing Factor 2—which found Wray’s agreement to
participate in the RICO enterprise included his murder of Christopher Odoms—and that
finding independently authorized the district court to impose a life sentence.
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B.
Moving from the Constitution to the advisory Federal Sentencing Guidelines,
Huskey challenges the district court’s application of a three-level increase in his offense
level on the ground that he “was a manager or supervisor” of “criminal activity [that]
involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).
Again, we see no reversible error.
At sentencing, Huskey objected to the role adjustment on the ground that he was not
a five-star general in the UBN. The district court overruled the objection, explaining “[t]he
evidence did show the defendant was a 5–Star General . . . and then became a Low. . . . So
that objection is overruled.” JA 3615. That factual finding was not clearly erroneous.
See United States v. Bartko, 728 F.3d 327, 345 (4th Cir. 2013) (district court’s factual
findings at sentencing are reviewed for clear error). At trial, one former UBN member
testified Huskey “was a 4–Star” general. JA 598. Another former UBN member testified
that Huskey at one point “took over” another five-star general’s line (JA 932), and that the
highest rank she recalled Huskey reaching was “Low [OG],” JA 927. Other evidence
supported the witness’s testimony about Huskey’s rank. For example, Huskey had the
authority to discipline another gang member, which he could only do according to the UBN
hierarchy if he had other members “under” him. JA 667.
Huskey also insists evidence of his rank could not support the enhancement because
no witness “quantified what gang ranks meant in terms of people supervised.” Defs.
Consol. Br. 96. We agree this Court’s precedent requires more than bare evidence of rank
to support the relevant enhancement. See United States v. Cameron, 573 F.3d 179, 185 (4th
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Cir. 2009) (requiring evidence of “the actual exercise of control,” not just “the potential to
exercise control over an operation”). But the trial evidence established Huskey ordered
retaliation, disciplined other UBN members, and distributed “Inglewood” (documents such
as codes, oaths, and pledges) to lower-ranking members. JA 600. Huskey thus “actively
exercised some authority over other participants in the operation or actively managed its
activities,” as required for the role adjustment. United States v. Slade, 631 F.3d 185, 190
(4th Cir. 2011).
C.
Lewis asserts the district court erred in concluding it had to impose a 10-year
consecutive sentence on Count 14, which accused him of using and carrying a firearm in
connection with a crime of violence that resulted in the death of Malik Brown. Because
Lewis did not make this argument before the district court, the plain-error standard applies.
See United States v. Olano, 507 U.S. 725, 732 (1993). We reject Lewis’s challenge because
we conclude he cannot satisfy the third requirement for relief under that standard—i.e.,
showing that the error affected his substantial rights.
No doubt, there was an error here and that error is clear under current law. See
Henderson v. United States, 568 U.S. 266, 279 (2013) (holding an error’s plainness is
always assessed “at the time of appellate consideration” (quotation marks removed)). Long
after Lewis was sentenced, the Supreme Court abrogated this Court’s earlier precedent and
held that a sentence under the relevant statutory provision—18 U.S.C. § 924(j)—“can run
either concurrently with or consecutively to another sentence.” Lora v. United States,
143 S. Ct. 1713, 1715 (2023). Given Lora, the government concedes “the district court
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plainly erred when it found that it was required to impose a mandatory consecutive
sentence for Lewis’s § 924(j) offense.” U.S. Supp. Br. 3–4.
But Lewis “has the burden of establishing each of the four requirements for plain-
error relief,” Greer, 141 S. Ct. at 2097, and we conclude he cannot satisfy the substantial
rights requirement. As Lewis admits, he is subject to two sentences of life imprisonment—
one on Count 1 and the other on Count 12. This Court has held a defendant cannot show
an impact on substantial rights where a sentencing error involves a term of years sentence
on one count and the defendant also faces a concurrent life sentence on another count.
See United States v. Ellis, 326 F.3d 593, 600 (4th Cir. 2003). We see no reason—and Lewis
identifies none—why the result should be different where the faultily imposed term of
years sentence would be served only after the expiration of a life sentence. See United
States v. Yousef, 327 F.3d 56, 164 (2d Cir. 2003) (reaching same result on plain-error
review); see also Harris v. Warden, 425 F.3d 386, 387 (7th Cir. 2005) (observing that
“ ‘life’ and ‘life plus x years’ come to the same thing”).
Though acknowledging “[t]he present futility of challenging the plus of a life-plus
sentence,” Lewis argues “the additional term” the district court imposed on Count 14
“could be considered in a future compassionate release motion, commutation request, or
some other unforeseeable change in sentencing policy.” Lewis 2d Supp. Br. 2 n.1. Even
outside the plain-error context, this Court has rejected similar arguments, describing them
as “speculative and unrealistic.” United States v. Charles, 932 F.3d 153, 161 (4th Cir.
2019). We do not rule out the possibility that some criminal defendants might be able to
offer a non-speculative explanation about how a consecutive sentence tacked onto a life
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sentence will affect their substantial rights because of the circumstances of their case.
See Ruiz v. United States, 990 F.3d 1025, 1035–41 (7th Cir. 2021) (Wood, J., dissenting)
(offering one such account). But Lewis falls far short of meeting that burden here.
D.
Finally, Smith challenges the reasonableness of his sentence, which we review for
an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). We “first ensure
that the district court committed no significant procedural error, such as” “failing to
adequately explain the chosen sentence.” Id. We then “consider the substantive
reasonableness of the sentence,” “tak[ing] into account the totality of the circumstances,
including the extent of any variance from the Guidelines range” and “giv[ing] due
deference to the district court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole,
justify the extent of the variance.” Id. Applying these standards, we conclude Smith’s
sentence is procedurally and substantively reasonable.
Smith’s presentence report classified him as a career offender and suggested a total
sentence between 360 months and life. Smith faced a statutory mandatory minimum
sentence of 60 months in prison for his Section 924(c) firearm offense. At the sentencing
hearing, Smith requested a downward variance to 120–180 months, arguing for several
mitigating factors. The district court sentenced Smith to 300 months in prison.
1.
In challenging procedural reasonableness, Smith mainly argues the district court
failed to address his nonfrivolous reasons for requesting a downward departure. See United
States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015) (a court must “address the party’s
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arguments and explain why [it] has rejected those arguments” (quotation marks removed)).
We disagree.
The district court thoughtfully addressed each of Smith’s arguments. Smith asserted
several mitigating factors, including that his troubled childhood made him vulnerable to
the UBN; his activities in the UBN took place when he was young and were limited to low-
level drug dealing; and he had since renounced allegiance to the gang.
The court acknowledged Smith’s youth at the time of his prior offenses but
explained it was “troubling” that Smith was a “long-term gang member in the drug
business.” JA 3706–07. The court considered Smith’s “history and characteristics” to be
“neutral,” weighing both “in [his] favor” and “against [him].” JA 3707. It reasoned:
“[T]here comes a point where you’re no longer a victim, but you actually are a leader of
the gang. You’ve reversed your roles, and that happened to you clearly when you became
a 4 or 5 Star General.” JA 3708. The court also noted Smith was a “recidivist,” and both
his early crimes and his more recent ones involved guns and drugs. JA 3706–09. The court
explained that possessing a gun with an obliterated serial number “shows [Smith’s]
willfulness to commit these crimes and not get caught.” JA 3709. And although Smith said
he had matured and made efforts to improve himself, the court decided Smith cannot “wash
[his] hands of ” “the crimes [he] committed while [he was] a gang member” and considered
that “debt to society” as a “factor[ ]” in the length of Smith’s sentence. JA 3707. We
conclude that, in addressing Smith’s arguments, the district court “set forth enough to
satisfy” us that it had “a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
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2.
We also reject Smith’s substantive reasonableness challenge.
First, Smith suggests he would have received a lower sentence if he pleaded guilty
rather than going to trial. But that is true of many criminal defendants, see U.S.S.G.
§ 3E1.1, cmt. n.3, and because the district court never mentioned Smith’s decision to go to
trial rather than pleading guilty, there is no indication the sentencing court “[p]unish[ed]
Smith more harshly based upon [that] decision.” Defs. Consol. Br. 106.
Next, Smith argues it was unfair to “dramatically increase[ ]” his sentence based on
crimes committed when he was 17 years old. Defs. Consol. Br. 107. As already discussed,
however, the court considered each of Smith’s mitigation arguments, including his youth
at the time of his previous convictions.
Finally, Smith says it was substantively unreasonable to give him a longer sentence
than a higher-ranking UBN member received at a related trial. But the district court
expressly took the other UBN member’s sentence into account, saying that sentence was
“one big reason” for applying a downward variance in Smith’s case. JA 3709–11 (“The
Court is concerned about just punishment . . . . [Y]ou shouldn’t be so disproportionately
punished[.]”). The court concluded, however, that Smith’s requested 120–180-month
variance was “substantially too low for the repeat criminal conduct, for the position in the
Bloods,” and for “the fact that . . . [Smith was] a very serious drug dealer” who
“dangerous[ly] combin[ed] drugs and guns” and was convicted of multiple individual,
serious crimes. JA 3710–11. We thus defer to the district court’s “reasoned and reasonable
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decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 552 U.S. at
59–60.
* * *
Having rejected each defendant’s challenges to their convictions and sentences, the
judgments of the district court are
AFFIRMED.
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Reference
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