United States v. Jonathan Wray

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 8, 2024
• Docket: 20-4574
• Status: Published

Opinion

USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 1 of 40

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

RENAIRE ROSHIQUE LEWIS, JR., a/k/a Banz, a/k/a Esco,

Defendant – Appellant. USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 2 of 40

No. 20-4573

ALANDUS MONTRELL SMITH, a/k/a Kadafia,

No. 20-4574

JONATHAN WRAY, a/k/a Jon, a/k/a Yungin,

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).

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.

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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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).

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.

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.

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.

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.

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.

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. 16 USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 17 of 40

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.

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

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.

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. 20 USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 21 of 40

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.

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)

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.

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.

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.

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

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. 28 USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 29 of 40

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.

All four defendants challenge their sentences. We reject each argument.

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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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).

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.

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).

38 USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 39 of 40

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

39 USCA4 Appeal: 20-4574 Doc: 127 Filed: 01/08/2024 Pg: 40 of 40

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.