USCA4 Appeal: 22-4674 Doc: 56 Filed: 01/24/2024 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4674

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LACHARLES ANTHONY CLARK, a/k/a LaCharles Anthonyo Clark,

Defendant - Appellant.

No. 22-4675

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LACHARLES ANTHONY CLARK,

Defendant - Appellant.

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:21-cr-00112-TDS-1; 1:08-cr- 00351-TDS-1)

Submitted: January 11, 2024 Decided: January 24, 2024 USCA4 Appeal: 22-4674 Doc: 56 Filed: 01/24/2024 Pg: 2 of 6

Before WYNN, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Leslie C. Rawls, Charlotte, North Carolina, for Appellant. Sandra J. Hairston, United States Attorney, Julie C. Niemeier, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In these consolidated appeals, LaCharles Anthony Clark appeals his convictions of

conspiracy to distribute heroin, in violation of

(a)(1), (b)(1)(C), 846, and

distribution of heroin and fentanyl, in violation of

(a)(1), (b)(1)(C). Clark

also challenges the district court’s decision to sentence him to 96 months of imprisonment,

and to revoke his supervised release and sentence him to an additional 24 months of

imprisonment. For the reasons below, we affirm.

First, Clark asserts that the district court plainly erred by permitting a witness to

give hearsay testimony about Clark’s drug dealing with her son. Because Clark did not

object to the testimony below, our review is for plain error. See Fed. R. Crim. P. 52(b);

United States v. Olano,

, 731–32 (1993). We will reverse only if (1) the

district court committed an error, (2) the error is plain, and (3) the error affects the

defendant’s substantial rights. Olano,

. An error ‘affects the defendant’s

substantial rights’ if there is a reasonable probability that the error affected the outcome of

the proceeding. United States v. Ojedokun,

(4th Cir. 2021). Even if

these prerequisites are met, however, “Rule 52(b) leaves the decision to correct the

forfeited error within the sound discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.”

(alteration and internal quotation marks omitted).

While a hearsay statement is generally inadmissible, it may be admitted when the

government shows by a preponderance of the evidence that a conspiracy existed of which

the defendant and the declarant were members, and that the declarant’s statement was made

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during the course of and in furtherance of the conspiracy. See United States v. Squillacote,

(4th Cir. 2000); United States v. Neal,

, 904–05 (4th Cir.

1996). We need not decide whether the testimony at issue qualified as an admissible co-

conspirator’s statement made during and in furtherance of the conspiracy, because we

conclude that even if there was an error, it had no effect on Clark’s substantial rights. The

witness’ testimony, which the district court found credible, about Clark being the only

person to sell her son drugs during the period at issue was based primarily on her personal

knowledge. Therefore, the admission of the statement did not affect the outcome of the

proceeding.

Second, Clark contends that the evidence was insufficient to support his convictions.

In assessing the sufficiency of the evidence, we consider whether, construing the evidence

in the light most favorable to the government, there is substantial evidence to support the

verdict. United States v. Young,

(4th Cir. 2019). Substantial evidence

is that which “a reasonable finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.”

(quoting United States

v. Howard,

(4th Cir. 2014)). In this analysis, we are “‘not entitled to

assess witness credibility’ and must ‘assume that the jury resolved any conflicting evidence

in the prosecution’s favor.’” United States v. Robinson,

(4th Cir. 2022)

(quoting United States v. Savage,

(4th Cir. 2018)). “We consider both

circumstantial and direct evidence, and allow the government all reasonable inferences that

could be drawn in its favor.” United States v. Harvey,

(4th Cir. 2008).

The defendant “bears a heavy burden, as appellate reversal on grounds of insufficient

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evidence is confined to cases where the prosecution’s failure is clear.” Savage,

(quoting United States v. Clarke,

(4th Cir. 2016) (citations,

alterations, and internal quotation marks omitted)). We have reviewed the record and

conclude that the convictions are supported by sufficient evidence.

Third, Clark contends that the upward variant sentence imposed by the district court

based on its assessment of the

(a) sentencing factors is substantively

unreasonable. “In reviewing the substantive reasonableness of the sentence, we ‘examine[]

the totality of the circumstances to see whether the sentencing court abused its discretion

in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).’”

United States v. McKinnie,

(4th Cir. 2021) (quoting United States v.

Mendoza-Mendoza,

(4th Cir. 2010)). While this court considers the

extent of the variance, the fact that we “might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.” Gall v.

United States,

(2007). And variant sentences are generally reasonable

when “the reasons justifying the variance are tied to § 3553(a) and are plausible.” United

States v. Provance,

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

But the greater the variance, the reasons cited by the court must be more compelling.

. We conclude that the court properly evaluated the seriousness of Clark’s criminal

conduct, the need for deterrence given Clark’s long criminal history, and the need to protect

the public. We find no abuse of discretion in the imposition of the sentence.

Lastly, Clark contends that the 24-month revocation sentence for violating his

conditions of supervised release by engaging in the criminal conduct at issue here should

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be vacated, because the two underlying convictions are unsustainable. But because we

have determined that Clark’s convictions are supported by substantial evidence, there is no

merit to Clark’s argument.

For all these reasons, we affirm the convictions and sentence and the judgment and

commitment order. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would

not aid the decisional process.

AFFIRMED

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