United States v. Marcus Davis

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 23, 2024
• Docket: 20-4504
• Status: Unpublished

Opinion

USCA4 Appeal: 20-4504 Doc: 79 Filed: 04/23/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4504

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARCUS JAY DAVIS, a/k/a Sticcs,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Michael F. Urbanski, Chief District Judge. (4:18-cr-00011-MFU-RSB-1)

Submitted: April 16, 2024 Decided: April 23, 2024

Before KING, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Anthony F. Anderson, ANDERSON LEGAL, Roanoke, Virginia, for Appellant. Christopher R. Kavanaugh, United States Attorney, Laura Day (Rottenborn) Taylor, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 20-4504 Doc: 79 Filed: 04/23/2024 Pg: 2 of 4

PER CURIAM:

After a jury trial, Marcus Jay Davis was convicted of being a member of a criminal

organization, the Rollin 60s Crips gang, that engaged in murder, assault, and the trafficking

of controlled substances in Danville, Virginia, in violation of 18 U.S.C. §§ 1962(d), 1963,

use of a firearm during a crime of violence, murder, in aid of racketeering, in violation

of 18 U.S.C. § 924(j), violent crime, attempted murder, in aid of racketeering and aiding

and abetting such conduct, in violation of 18 U.S.C. §§ 1959(a)(5), 2, and use of a firearm

during a crime of violence, attempted murder, in aid of racketeering, in violation of 18

U.S.C. § 924(c)(1)(A)(iii). We affirm.

Davis asserts that the district court erred in instructing the jury on the Pinkerton ∗

doctrine of liability. He does not claim that the evidence did not support application of the

doctrine or that the court erred by misstating the doctrine. Rather, he asserts that the

doctrine is no longer viable in light of the Supreme Court’s decisions in Rosemond v.

United States, 572 U.S. 65 (2014), and Apprendi v. New Jersey, 530 U.S. 466 (2000). We

recently reaffirmed the validity of the Pinkerton doctrine and Davis provides no reason to

revisit it. See United States v. Gillespie, 27 F.4th 934, 941 (4th Cir. 2022).

Davis also asserts that the district court erred in denying his request that the jury be

given a withdrawal instruction. “[A] defendant’s membership in a conspiracy is presumed

to continue until he withdraws from the conspiracy by affirmative action. A withdrawal

must be shown by evidence that the defendant acted to defeat or disavow the purposes of

∗ Pinkerton v. United States, 328 U.S. 640 (1946).

2 USCA4 Appeal: 20-4504 Doc: 79 Filed: 04/23/2024 Pg: 3 of 4

the conspiracy.” United States v. Bush, 944 F.3d 189, 196 (4th Cir. 2019) (citation and

internal quotation marks omitted). “Withdrawal terminates the defendant’s liability for

postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy.” Smith v.

United States, 568 U.S. 106, 111 (2013). Davis bears the burden of proving that he

withdrew from a conspiracy. United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).

“Mere cessation of activity in furtherance of the conspiracy is insufficient. The defendant

must point to affirmative acts inconsistent with the object of the conspiracy and

communicated in a manner reasonably calculated to reach co-conspirators.” United

States v. Shephard, 892 F.3d 666, 673 (4th Cir. 2018) (citation and internal quotation marks

omitted). We agree with the district court that there was no evidence that Davis withdrew

from the conspiracy prior to the murder and attempted murder and we conclude that the

denial of the instruction was not an abuse of discretion. United States v. Spirito, 36 F.4th

191, 209 (4th Cir. 2022) (stating standard or review).

While this appeal was pending, Davis submitted notice pursuant to Fed. R. App.

P. 28(j) and asserted that his conviction for using a firearm during a crime of violence,

Virginia attempted murder (Count 13), was called into question by the Supreme Court’s

decision in United States v. Taylor, 596 U.S. 845 (2022) (holding that attempted Hobbs

Act robbery is not a crime of violence). We ordered supplemental briefing on the issue

and then placed this appeal in abeyance for United States v. Lassiter, 96 F.4th 629

(4th Cir. 2024) (holding that a violent crime in aid of racketeering, attempted murder,

premised on Virginia attempted murder, was a crime of violence under 18 U.S.C.

§ 924(c)(1)(A), (c)(3)(A)). Now that Lassiter has issued and the supplemental briefs filed,

3 USCA4 Appeal: 20-4504 Doc: 79 Filed: 04/23/2024 Pg: 4 of 4

the issue is ripe for our consideration. Davis’ assertion that Virginia attempted murder is

not a crime of violence is foreclosed by this court’s decision in Lassiter. Davis’ conviction

for using a firearm during a crime of violence, attempted murder, remains valid.

Accordingly, we affirm the amended judgment of conviction. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED