United States v. Shakeen Davis

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 12, 2024
• Docket: 20-4250
• Status: Published

Opinion

USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 1 of 46

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4620

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RANDY BANKS, a/k/a Dirt,

Defendant – Appellant.

No. 19-4826

JAMAL LOCKLEY, a/k/a T-Roy, a/k/a Droid,

No. 20-4193

Plaintiff – Appellee, USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 2 of 46

CORLOYD ANDERSON, a/k/a Bo,

No. 20-4250

SHAKEEN DAVIS, a/k/a Creams,

No. 20-4266

DANTE D. BAILEY, a/k/a Gutta, a/k/a Almighty, a/k/a Wolf,

Appeals from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, Senior District Judge. (1:16-cr-00267-CCB-5; 1:16-cr-00267-CCB-8; 1:16-cr-00267-CCB-11; 1:16-cr-00267-CCB-20; 1:16-cr-00267-CCB-1)

Argued: May 7, 2024 Decided: June 12, 2024

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Before AGEE and WYNN, Circuit Judges, and Gina M. GROH, United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge Agee wrote the opinion in which Judge Wynn and Judge Groh joined.

ARGUED: Stuart A. Berman, LERCH, EARLY & BREWER, CHARTERED, Bethesda, Maryland; Lauren Nicole Beebe, ALLEN OVERY SHEARMAN STERLING US LLP, Washington, D.C.; Gerald Thomas Zerkin, Richmond, Virginia; Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ, Highland, Maryland, for Appellants. Jefferson McClure Gray, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Allen H. Orenberg, THE ORENBERG LAW FIRM, PC, Potomac, Maryland, for Appellant Jamal Lockley. Adam B. Schwartz, ALLEN OVERY SHEARMAN STERLING US LLP, Washington, D.C., for Appellant Dante Bailey. Erek L. Barron, United States Attorney, Brandon K. Moore, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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AGEE, Circuit Judge:

Five members and associates of a Baltimore-based gang appeal multiple

components of their convictions and sentences. As discussed below, because Shakeen

Davis’ two felon-in-possession convictions were obtained in violation of Rehaif v. United

States, 588 U.S. 225 (2019), we reverse those convictions and remand for entry of a

corrected judgment. As for all the other challenged convictions and sentences, we affirm.

I.

Recounted in the light most favorable to the Government, the evidence adduced at

trial showed the following: Over a decade ago, Dante Bailey founded Murdaland Mafia

Piru (MMP) as a branch of the Bloods gang operating throughout Baltimore City and

County, Maryland. The so-called “5200 boys” operated alongside MMP members, earning

their moniker from the 5200 block of Windsor Mill Road, which was considered MMP’s

headquarters. MMP had a hierarchical structure and adopted many features of the Italian

mafia. Bailey was its “Don” or “Godfather.” Subordinates operated MMP’s extensive drug-

trafficking operation involving the distribution of heroin, cocaine, cocaine base, fentanyl,

marijuana, and other controlled substances. MMP required non-gang members who wanted

to distribute drugs in its territory to pay “taxes.”

In addition to MMP’s drug-trafficking endeavors, it also undertook various

enforcement measures—often violent ones—to ensure its operations ran smoothly and to

maintain control of its territory. Bailey (and MMP generally) took any sign of disrespect

seriously, leading to punishment of MMP members and non-members alike. In furtherance

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of its operations, MMP members and affiliates were responsible for the attempted murders

and murders of multiple individuals.

Federal, state, and local authorities investigated MMP’s illicit activities for many

years, eventually amassing extensive evidence against a network of street-level dealers all

the way to Bailey himself. This evidence took many forms, from recorded controlled buys

and surveillance footage to wiretap conversations, cellphone data, and the statements of

cooperating witnesses.

The investigation into MMP led to indictments charging over two-dozen defendants

with a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, a narcotics

conspiracy, and related offenses. All but six individuals pleaded guilty. At issue before us

is the appeal from the joint, six-week trial against five defendants: Dante Bailey, Shakeen

Davis, Corloyd Anderson, Jamal Lockley, and Randy Banks. 1

Bailey was convicted of conspiracy under RICO, in violation of 18 U.S.C.

§ 1962(d); conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846;

murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), (2); and possession

with intent to distribute controlled substances, in violation of 21 U.S.C. § 841 and 18

U.S.C. § 2. For these four convictions, Bailey was sentenced to concurrent terms of life

imprisonment. Bailey was also convicted of possession of a firearm and ammunition as a

1 A sixth defendant, Sydni Frazier, was initially part of this trial, but was severed after his attorney could not proceed in the joint trial. He was subsequently convicted in a separate trial and his appeal is pending in this Court, Case No. 22-4368, but it is not part of this appeal. 5 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 6 of 46

convicted felon, in violation of 18 U.S.C. § 922(g), for which he received a 20-year

sentence, to run concurrent to the life sentences.

Davis was convicted of both conspiracies, for which he was sentenced to a term of

300 months’ imprisonment for each count, to run concurrent to each other. In addition, he

was convicted of two counts of possession of a firearm and ammunition as a convicted

felon, in violation of 18 U.S.C. § 922(g), for which he was sentenced to 120 months’

imprisonment, to run concurrent to the sentence for the conspiracies. Davis was also

convicted of one count of distribution and possession with intent to distribute controlled

substances, in violation of 21 U.S.C. § 841, for which he received a 240-month sentence,

to run concurrent with the previously mentioned sentences. Lastly, Davis was convicted of

one count of possession of a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c), for which he received a 60-month term of imprisonment, to run

consecutive to his other sentences.

Anderson was convicted of both conspiracies, for which he received a sentence of

264 months’ imprisonment on each count, to run concurrent to each other. He was also

convicted of one count of possession of a firearm and ammunition as a convicted felon, in

violation of 18 U.S.C. § 922(g). But in light of the Supreme Court’s later-issued decision

in Rehaif, the Government stipulated to the dismissal of that conviction.

Lockley was convicted of both conspiracies, for which he was sentenced to a 360-

month term of imprisonment on each count, to be served concurrent to each other. In

addition, he was convicted of one count of distribution and possession with intent to

distribute controlled substances, in violation of 21 U.S.C. § 841, for which he was

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sentenced to 120 months’ imprisonment, to run concurrent to the sentences for the

conspiracy convictions.

Lastly, Banks was convicted of the narcotics conspiracy, for which he was

sentenced to a total term of 216 months’ imprisonment. The jury returned a verdict of not

guilty on the RICO conspiracy charge.

After trial, but before the Defendants’ sentencing hearings, it came to light that one

of the law enforcement officers who had been part of the investigation had—many years

prior and in an unrelated incident—obtained proceeds from the sale of controlled

substances seized at the scene of a crime. That (now-former) officer later pleaded guilty to

an offense arising from the investigation into that misconduct. And because this former

officer had been the affiant on several wiretap applications and search warrants during the

MMP investigation, the Defendants moved for a new trial, arguing that the officer’s

misconduct tainted evidence that had been obtained and introduced against them. The

district court denied the motion, concluding that the former officer’s misconduct did not

implicate the trial evidence or otherwise undermine confidence in the verdict.

The Defendants noted timely appeals, and we consolidated their cases for briefing

and oral argument. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

II.

On appeal, the Defendants raise fifteen discrete issues challenging their convictions

and sentences, and even more arguments in support of those issues. We note at the outset

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that we have considered all these arguments, even if we do not directly address them in the

discussion that follows.

A. Challenges to the Trial and Convictions

1. Motion for New Trial

The Defendants argue that the district court erred in denying their motion for a new

trial based on former Baltimore City Police Officer Ivo Louvado’s role in the MMP

investigation. We review the denial of a motion for a new trial for abuse of discretion.

United States v. Robinson, 627 F.3d 941, 948 (4th Cir. 2010).

a. Background Facts

The record shows that in 2009, while Louvado was a police officer, he and other

corrupt police officers “stole and resold three kilograms of cocaine,” splitting the proceeds

of the sales between them. United States v. Bailey, No. CCB-16-267, 2022 WL 1451653,

*1 (D. Md. May 9, 2022). Direct evidence of Louvado’s crime came to light in April 2019,

during the middle of the MMP trial and as a result of a separate investigation into corruption

within the Baltimore City Police Department. Following a confidential investigation,

Louvado was charged in March 2020 with one count of lying to investigators about the

drug theft. He pleaded guilty to that offense in November 2020. Id. at *4.

Louvado became involved in the MMP investigation while he was on a detail with

the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Before addressing his

specific role, we note its context within the broader investigation that led to this trial: State

and local authorities had been investigating MMP for a long time before the ATF joined

the investigation, and the ATF’s investigation predated Louvado’s own involvement. This

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extensive “pre-Louvado” investigation spanned numerous law enforcement entities and

involved traffic stops, searches, seizures, wiretaps, and intercepted jail calls that already

implicated numerous MMP members, including Bailey, Davis, and Lockley, in the charged

conduct. Id. at *2.

As for Louvado’s role in the investigation, the Government identified—and the

Defendants do not dispute—that after Louvado joined the MMP investigation, he acted

“outside the presence of other officers” on just two occasions. Id. On the first occasion, he

was the sole law enforcement officer to check a confidential informant before a controlled

buy that was itself recorded. But this particular controlled purchase was not introduced into

evidence at trial. Id. On the second occasion, “Louvado surveilled Lockley as Lockley

exited his home, got into a car, and drove away.” Id. But this entire surveillance was

captured on video recording, and it was not a material part of the evidence against Lockley.

In addition to those two occurrences, Louvado was the direct or cross-referenced

law-enforcement signatory for several search warrants and wiretap authorizations during

the MMP investigation. See id. at *2–3. For example, he applied for warrants to search

Frazier’s and Davis’ cell phones and Davis’ Instagram account. He applied for warrants to

search several MMP-associated locations, including Lockley’s home, Anderson’s home

and business, and Davis’ home. And he was the sole affiant to obtain authorization to

wiretap the phones of two other co-conspirators. On each of these occasions, however, the

probable cause underlying the applications and affidavits was based on information that

did not originate from or otherwise involve Louvado. Instead, the probable cause to obtain

the requested authorizations originated from independent evidence, including recorded

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controlled buys, publicly available social media posts, and arrests for other specific

offenses.

As the investigation into MMP continued, a separate federal investigation began

looking into corruption within the Baltimore Police Department’s Gun Trace Task Force.

Louvado had never been a member of that task force, but in July 2017, a witness in that

investigation admitted to stealing money during a 2009 drug search. He named two other

officers who had also participated in the theft. He did not name Louvado as a participant

in the theft, but he implied that Louvado may have participated by mentioning that Louvado

had purchased a boat shortly after the theft. Id. at *4.

The following month, the task force investigators met with the MMP trial team to

summarize what they knew at that point—that no one had identified Louvado as someone

who had stolen drug money, that Louvado had not yet been questioned, and that they had

no evidence of his participation in the theft (for example, his financial records did not point

to having received large cash deposits around that time). Id.

In March 2018, another witness in the task force investigation relayed his second-

hand impression that Louvado had been involved in the 2009 drug theft. But that witness

had not been present and could not otherwise corroborate his suspicion, so investigators

still had no direct evidence that Louvado had committed a crime. Id.

During May 2018 and February 2019 interviews with task force investigators,

Louvado denied knowing about any relevant criminal activity. Id.

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In April 2019, a witness for the task force investigation provided the first concrete

evidence of Louvado’s criminal involvement. Namely, he admitted seeing Louvado steal

drugs in February 2009. Id.

At that time, the MMP trial was in its third week. Investigators reported this

evidence to supervisors, but the U.S. Attorney’s office determined that the MMP trial

attorneys had no Giglio 2 obligation to disclose the witness’s statement about Louvado for

three reasons: “(1) Louvado was not a trial witness; (2) the information in [Louvado’s

affidavits and applications] was independently verifiable; and (3) the [task force]

investigation was still underway with potential covert steps to be taken.” Id.

The investigation into Louvado’s criminal conduct culminated in a March 2020

criminal information against him for lying to investigators about the drug theft, and he

pleaded guilty to that offense months later.

b. Governing Law

The Defendants argued in favor of a new trial because of Louvado’s separate

criminal acts under two separate theories. First, they alleged that they satisfied Federal Rule

of Criminal Procedure 33, which authorizes a district court to “vacate any judgment and

grant a new trial if the interest of justice so requires.” When considering whether to grant

relief under Rule 33, courts look to five factors to determine whether “justice” demands a

new trial: “(a) the evidence must be, in fact, newly discovered, i.e., discovered since the

trial; (b) facts must be alleged from which the court may infer diligence on the part of the

2 Giglio v. United States, 405 U.S. 150 (1972). 11 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 12 of 46

movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it

must be material to the issues involved; and (e) it must be such, and of such nature, as that,

on a new trial, the newly discovered evidence would probably produce an acquittal.”

Robinson, 627 F.3d at 948 (cleaned up).

Second, and independently, the Defendants asserted that a Brady and Giglio

violation warranted a new trial. Those cases state that a defendant’s due-process rights are

violated when the prosecution suppresses evidence “favorable to an accused” or for

impeachment purposes. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio, 405 U.S. at

153–54. To secure a new trial under this theory, a defendant must show that (1) the

undisclosed evidence was favorable to him; (2) it was material, i.e., caused him prejudice;

and (3) the prosecution possessed the evidence, yet failed to disclose it. United States v.

Stokes, 261 F.3d 496, 502 (4th Cir. 2001). 3

c. Analysis

The Defendants cannot prevail under either theory to a new trial because they cannot

show at least one element common to both: that evidence relating to Louvado’s criminal

misconduct was material. Though the precise ambit of what materiality entails varies

3 We have never held that Brady and Giglio apply to evidence bearing on the warrant-application stage as opposed to evidence admitted at trial. To the contrary, when previously confronted with a similar argument, we observed that caution should be exercised before “importing the panoply of Brady protections from trial practice into warrant application proceedings.” United States v. Colkley, 899 F.2d 297, 302 (4th Cir. 1990). We need not elaborate on the different concerns at issue or definitively reject the applicability of Brady/Giglio to the warrant-application stage to resolve this case. The lack of materiality is so clearly shown, even in the unlikely event that Brady/Giglio would apply in this context, that it is unnecessary to address this threshold point. 12 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 13 of 46

according to the particular pathway to relief, the concept generally requires the Defendants

to demonstrate that not knowing about Louvado’s crime at the time of the trial somehow

prejudiced them. Compare Robinson, 627 F.3d at 950 (holding that evidence of police

misconduct is not material for purposes of a Rule 33 motion for a new trial when it “says

little about [a defendant’s] guilt or innocence on the[] [charged] counts”), with United

States v. Fulcher, 250 F.3d 244, 254–55 (4th Cir. 2001) (holding that newly discovered

evidence was material for purposes of a Rule 33 motion because it went to the heart of the

defendants’ defense); compare also Kyles v. Whitley, 514 U.S. 419, 433 (1995) (stating,

for purposes of Brady claims, that “evidence is material, and constitutional error results

from its suppression by the government, if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different”), with United States v. Bagley, 473 U.S. 667, 680 (1985) (holding that, for Giglio

purposes, impeachment evidence is immaterial if “failure to disclose it would be harmless

beyond a reasonable doubt”). 4 At bottom, the Defendants argue that Louvado tainted the

4 The Defendants’ Brady/Giglio-based argument isn’t a true Brady/Giglio claim because the newly discovered evidence is not exculpatory and, while it may have been of some theoretical impeachment value, Louvado did not testify at their trial. To argue around this problem, they assert that had Louvado’s misconduct been disclosed earlier, they would have sought a Franks hearing to challenge the admissibility of the evidence obtained as a result of the search warrants and wiretap authorizations that he played a role in obtaining. See Franks v. Delaware, 438 U.S. 154 (1978). Even accepting this look-through approach, during a Franks hearing, the defendant carries the burden of showing materiality, which in this context requires showing that the omitted information undermines the probable-cause determination. See United States v. Moody, 931 F.3d 366, 371 (4th Cir. 2019) (“[T]he defendant must show materiality—that is, that the false statements were necessary to the finding of probable cause. A district court may not hold a Franks hearing where, after stripping away the allegedly false statements, the truthful portions of the warrant (Continued) 13 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 14 of 46

trial evidence because had he disclosed his own criminal conduct from 2009 in the

affidavits and applications he signed, no judge would have approved those requests. That

may well be true, but it does not satisfy the Defendants’ burden of showing materiality.

To be clear, the Defendants do not identify any evidence that Louvado manufactured

nor do they claim that he was ever in a position to manufacture evidence against them such

that a fair inference of manufactured evidence could arise. Their briefing does not assert

that he had a history of that type of misconduct in other cases. Nor do they argue that the

affidavits or applications Louvado signed contained any false statements or omissions

bearing directly on the probable-cause determination needed to grant the requests. Their

argument thus does not align with the circumstances in which we and other courts have

held that an investigating officer’s own misconduct cast sufficient doubt on the case against

the defendant so as to warrant a new trial. See United States v. Fisher, 711 F.3d 460, 466

(4th Cir. 2013) (recounting the “highly uncommon circumstance[]” presented “in which

gross police misconduct goes to the heart of the prosecution’s case” because a law

enforcement officer described events in a search warrant affidavit that did not occur and

described statements by a confidential informant who “had no connection to the case”); see

also Milke v. Ryan, 711 F.3d 998, 1000–01, 1018 (9th Cir. 2013) (holding that evidence of

a police officer’s undisclosed “long history of lying under oath and other misconduct” was

application would still support probable cause.” (cleaned up)). Thus, the same materiality problem thwarts the Defendants’ ability to show the likely success of a Franks motion. See United States v. Lull, 824 F.3d 109, 118 (4th Cir. 2016) (concluding that an affiant’s omission of a confidential informant’s past unreliability was material because the informant’s statements were essential to establish probable cause and so the informant’s reliability was important when assessing the existence of probable cause). 14 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 15 of 46

material to the verdict because the evidence at “trial was, essentially, a swearing contest

between” the defendant and the police officer, making the officer’s “credibility . . . crucial

to the state’s case”).

Instead, the purported basis for a new trial is entirely unrelated to (1) the evidence

establishing probable cause for any evidence obtained as a result of the wiretaps or

searches, and (2) the evidence introduced to establish the Defendants’ guilt at trial. Their

sole point in raising Louvado’s criminal conduct is to argue that he was a corrupt officer

with suspect credibility. (And since he did not testify at trial, Louvado’s credibility only

comes into play in this case to the extent it swayed a judge to issue the requested warrants

and wiretap authorizations. Put differently, they assert that no judge who knew this

information about Louvado would have approved a request bearing his signature.) But we

have previously held that evidence which is “merely impeaching” “does not generally

warrant the granting of a new trial.” United States v. Custis, 988 F.2d 1355, 1359 (4th Cir.

1993). To the contrary, “motions for a new trial based on impeaching evidence discovered

after trial should be granted ‘only with great caution and in the most extraordinary

circumstances,” as “‘[t]here must be a real concern that an innocent person may have been

convicted.’” Id. at 1360 (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d. Cir.

1992)). That principle from the Rule 33 context is also consistent with the Supreme Court’s

recognition in the Giglio context that when the Government’s case does not depend on a

particular government witness, then undisclosed information that would impeach that

witness is immaterial as it does not create a reasonable probability of a different result at

trial. Strickler v. Greene, 527 U.S. 263, 292–96 (1999). And both this Court and our sister

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circuit courts have recognized under similar circumstances that the materiality requirement

is not satisfied when a law enforcement officer’s misconduct is tangential to the evidence

establishing a defendant’s own culpability. E.g., Robinson, 627 F.3d at 950, 952–53

(holding that a new trial was not warranted under either Rule 33 or Brady/Giglio because

the misconduct evidence “would do little to undermine the largely separate investigation’s

result” and did not “cut into a somewhat thin and entirely circumstantial government case,”

while also observing the strength and independence of the government’s evidence gleaned

“from other sources”); United States v. Jones, 399 F.3d 640, 647–48 (6th Cir. 2005)

(holding the same because evidence that members of the investigating law-enforcement

unit had “engaged in widespread misconduct” did not prejudice the defendant “[g]iven the

overwhelming evidence of guilt”); United States v. Williams, 985 F.2d 749, 757 (5th Cir.

1993) (holding the same because evidence that the crime lab chemist “pilfer[ed] drugs from

the lab” did not call into question evidence that the substance the defendants possessed was

“cocaine or crack” when the stolen drugs were of a different kind and were entirely

unrelated to the defendants’ case).

In this case, the district court reasonably concluded that Louvado played only a

minor role in the MMP investigation as a whole and that his unrelated prior criminal

conduct—while serious—did not call into question the evidence against the Defendants or

the validity of their convictions. Indeed, the bulk of the Government’s case at trial did not

involve Louvado at all. Of the small part of the Government’s case that Louvado had a

minor role in, he was either accompanied by other law enforcement officers or

documentary evidence corroborated events. And the one controlled buy during which

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Louvado was unaccompanied for a time with the confidential informant was not introduced

at trial. Moreover, each time Louvado played a role in obtaining a search warrant or wiretap

authorization, the probable cause establishing the basis for those requests was based on

third-hand evidence unrelated to Louvado personally. He may have signed the requests,

but that personal attestation mattered little to the underlying support for obtaining

authorization to proceed. As the district court aptly observed in describing the limited

impeachment value Louvado’s misconduct had, “there is a wide gap between deliberate

but tangential omissions about an affiant’s general credibility and deliberate falsehoods

with real factual nexus to the case itself.” Bailey, 2022 WL 1451653, at *7. Further,

“[e]xcluding any declarations from Louvado as to his personal honesty or including the

omitted information about the 2009 theft still leaves sufficient confidential informant and

other information to justify probable cause for the wiretaps and searches.” Id. at *9.

Because Louvado’s criminal misconduct was immaterial to the evidence

establishing the Defendants’ criminal culpability, the district court did not err in denying

their motion for a new trial.

2. Motion to Enforce Plea Agreement (Bailey)

Just days before the trial began, Bailey moved for enforcement of a plea agreement

that would have avoided exposing him to a mandatory sentence of life imprisonment. The

district court denied the motion after finding that there had been no meeting of the minds

between Bailey and the Government and thus no plea agreement. At the broadest level, the

court looked to the communications as a whole and concluded that none set out essential

terms of an enforceable plea agreement. For further support, the court observed that the

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Government’s emails had repeatedly indicated that certain of its offers “were contingent

on [four other] defendants pleading guilty, which did not happen.” J.A. 7688. In addition,

the court pointed out that the Government’s emails showed that the Government framed its

discussions in contingent language that had to be submitted to supervisors for approval,

which was never given.

On appeal, Bailey reiterates his belief that the Government failed to honor either of

two offers that he contends he accepted. In view of that perceived breach, he argues that

the district court committed reversible error in proceeding to trial rather than holding the

Government to its word. 5 First, Bailey asserts that the Government offered a plea deal for

27-40 months’ imprisonment in August and October 2018, which he supposedly accepted

in October 2018. Second, he claims that the Government offered him another plea deal for

a “straight” term of 37 months’ imprisonment in January 2019, which he contends he

accepted the following month. 6

5 Alternatively, Bailey argues that the circumstances presented show that trial counsel was ineffective in failing to procure a signed plea agreement and that this error is “conclusively establishe[d]” on the record such that it is cognizable on direct appeal. See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). We disagree that he has met this high standard and so reject this argument. 6 On appeal, Bailey relies on two affidavits from trial counsel that were submitted after the district court denied his motion and which were not part of any motion to reconsider the court’s decision. At oral argument, we explored with counsel the unusual posture in which those affidavits were made part of the district court record and questioned the propriety of considering them on appeal. Ultimately, we need not resolve this question. The bulk of their contents was already provided to the district court as part of the motion and hearing process. And even if we considered their additional contents, the district court still did not err in determining that a plea agreement did not exist. 18 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 19 of 46

We disagree. The district court did not err in concluding that the parties never

entered into an enforceable plea agreement. “[J]udicial interpretation of plea agreements is

largely governed by the law of contracts.” United States v. Martin, 25 F.3d 211, 216–17

(4th Cir. 1994). While oral agreements can be made, we have strongly “suggest[ed] that

lower courts require all . . . plea agreements be reduced to writing.” United States v.

McQueen, 108 F.3d 64, 66 (4th Cir. 1997). Before a plea agreement can be enforced, then,

the party seeking enforcement must show that a binding contract has been formed. And

“[t]he essence of contract formation is . . . a meeting of the minds of the contracting

parties.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (cleaned

up).

Turning to the first alleged “agreement,” emails exchanged between the relevant

parties throughout August and October 2018 show initial negotiations and Bailey’s attempt

to “accept” an offer on terms that did not reflect the Government’s most recent offer. Rather

than recite all the permutations of the partially documented discussions, we focus on the

evidence of where everyone stood just before Bailey allegedly accepted a plea deal “on or

around October 9, 2018.” Opening Br. 42. In an October 5 email from the AUSA, the

Government rejected Bailey’s “counter proposal,” stating that it “would accept a plea to a

range of 27-40, or a straight 37, if [four co-defendants] plead guilty. Unfortunately, they

are all still at the table at this point.” J.A. 6580. The AUSA then acknowledged that this

position was “not what you want to hear” and expressed her willingness to talk further.

J.A. 6580. Later that evening, in response to Bailey’s counsel asking if the AUSA could

“write up the 27 to 40 [agreement] for [Bailey’s counsel] to take to [Bailey]” on Monday,

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October 8, when she planned to visit him, the AUSA apologized and said that she “can’t

get approval for a plea by Monday.” J.A. 6581. Bailey’s counsel continued to push for a

written plea agreement to take to Bailey on Wednesday, October 10, but the AUSA again

indicated that she was “sorry to say I’m not going to be able to get you a plea offer in time

for tomorrow’s visit.” J.A. 6582. On October 10, Bailey’s counsel apparently discussed the

terms of a potential plea deal with Bailey, communicating later that day to the AUSA that

“we cleared 27 to 40 with our client who asked us to request a specific number – 35 or 37.

He knows you will be asking for 40. Our understanding was that 35 was ‘No’ and 37 was

only if we could get the others to take the offer made to them. . . . We believe there is a

much better chance . . . if . . . the plea is done. We could have had a signed deal . . . last

week and still can get one if we could get something to sign!!” J.A. 6583. Bailey’s counsel

closed the email by saying, “We feel like we have a sure thing that keeps slipping away as

the time passes.” J.A. 6583.

All this to say, before Bailey is even alleged to have accepted any offer, his counsel

had heard multiple times from the AUSA that there was no firm offer to present to Bailey.

Bailey’s counsel’s own statements to the AUSA at the time reflect her recognition of that

basic fact: the parties were still discussing the terms and no final agreement had been

reached. In fact, Bailey’s counsel was continuing to tweak terms on October 10 when she

sought the Government’s approval of a different term of imprisonment than the range

Bailey had purportedly “cleared” earlier that day. On this record, the district court did not

err in determining the parties never reached a meeting of the minds such that there was any

plea deal for Bailey to accept “on or around October 9.”

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We reach the same conclusion as to the negotiations that took place in January 2019,

which culminated with Bailey’s purported “acceptance” on February 18, 2019. The record

shows that after the Government communicated to Bailey’s counsel that it would not offer

a plea to thirty-seven years’ imprisonment unless four other co-defendants pleaded guilty,

Bailey’s counsel unilaterally drafted a document incorporating standard language of a plea

agreement in that district. The document stated that the parties agreed to a thirty-seven year

term of imprisonment without mentioning anything about the deal being contingent on

other co-defendants pleading guilty. On February 18, 2019, Bailey and his counsel signed

this document. Counsel then sent the document, along with a letter recounting the plea

negotiations, to the Government. Particularly instructive here, the letter acknowledges that

the Government’s most recent communication had said “that although we had reached

agreement on the terms of a plea agreement for Mr. Bailey, you would not extend a formal

written offer unless and until [four co-defendants] pled.” J.A. 6589. The letter asked the

Government to “agree that permitting Mr. Bailey to plead guilty to the terms on which we

have agreed is the appropriate resolution of the charges against him, whether or not his co-

defendants plead, and that you will execute the agreement we are providing.” J.A. 6589.

The record could not be clearer—Bailey sought to unilaterally change the conditions under

which the Government had indicated it would be willing to accept a plea deal. Plainly there

was no meeting of the minds. Bailey could not “accept” a plea based on terms the

Government never offered to him. And the Government never accepted the terms Bailey

presented to it.

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Because a plea agreement was never formed, the district court properly denied

Bailey’s motion to enforce a (non-existent) plea agreement.

3. Rehaif Error (Davis)

This trial took place before the Supreme Court issued its decision in Rehaif, so

neither the district court nor the parties had the benefit of that ruling, which “brought a sea

change to [§ 922(g)(1)] cases.” United States v. Gallman, 57 F.4th 122, 130 (3d Cir. 2023).

In Rehaif, the Supreme Court held that the statutory term “knowingly” applied to the

defendant’s conduct and status. 588 U.S. at 229. And as had been the situation in so many

cases brought before Rehaif was decided, the jury here was not specifically instructed that

the Government had to come forward with proof that those defendants charged with a

§ 922(g)(1) offense knew that they fell within a class prohibited from possessing firearms.

Although the Government moved to dismiss Anderson’s § 922(g)(1) conviction

after Rehaif, it did not do the same with respect to Davis’ two § 922(g)(1) convictions

(Counts 16 and 30). Nonetheless, at sentencing, the Government noted the possibility that

Davis’ § 922(g)(1) convictions may be reversed on appeal in light of Rehaif and it asked

the district court to specify whether it would have imposed the same sentence for Davis’

convictions on the other counts regardless of whether his § 922(g)(1) convictions were later

reversed on appeal. The district court readily agreed to do so, stating that it would impose

the same sentence, irrespective of any Rehaif error as to Davis’ § 922(g)(1) convictions.

On appeal, the parties agree that Rehaif error occurred. Their dispute is limited to

whether Davis can establish relief on plain-error review, specifically whether the error

affected his substantial rights. United States v. Barronette, 46 F.4th 177, 198 (4th Cir.

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2022) (reiterating that this requires a defendant to show “a reasonable probability that, but

for the error, the outcome of the proceeding would have been different”). On this point,

since Rehaif, the Supreme Court has recognized that the mere fact that a defendant has a

prior felony conviction is not dispositive to proving whether he knew of his status, though

“common sense” suggests that an individual who is a convicted felon “ordinarily knows

he is a felon.” Greer v. United States, 593 U.S. 503, 506, 508 (2021) (emphasis added).

That typical scenario gives way, however, when the defendant “can make an adequate

showing on appeal that he would have presented evidence in the district court that he did

not in fact know he was a felon when he possessed firearms.” Id. at 509.

In assessing whether a defendant satisfies plain-error review in a Rehaif context, our

decision in United States v. Barronette is instructive. There, we held that a § 922(g)(1)

defendant had satisfied his burden on plain-error review of a Rehaif error. The defendant

had prior state-law convictions for offenses classified as misdemeanors under state law but

which met the technical requirements to be classified as felonies for purposes of

§ 922(g)(1). 46 F.4th at 198–99. Although the defendant had been sentenced to more than

one term of imprisonment over one year long, most of the sentences had been suspended

such that he served only one stint in prison that lasted slightly more than one year. Id. at

199. In those circumstances, we concluded that “there [was] a lack of record evidence that

[the defendant] knew that he was convicted of a state crime [that met the federal definition

of a felony for § 922(g)(1) purposes], especially when his crimes were labeled as

misdemeanors,” leading us to hold that “the Rehaif error affected his substantial rights”

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and satisfied plain-error review. Id.; see also id. at 200–01 (distinguishing Greer and

explaining this conclusion further).

Barronette counsels the same result here. While that defendant had multiple prior

convictions that met the federal definition of a “felony,” Davis had a single prior state

conviction that did so. In both Barronette and here, the state conviction was labeled under

state law as a “misdemeanor.” And while the defendant in Barronette had actually served

time in prison for more than one year, Davis’ entire sentence had been suspended. Given

Barronette’s conclusion, Davis has shown even more clearly “that, but for the Rehaif error

in the jury instructions, there is a reasonable probability that a jury would have acquitted

him” of the § 922(g)(1) counts. Greer, 593 U.S. at 510; see also Barronette, 46 F.4th at

198–201. 7

Despite Davis satisfying the other elements of plain-error review, we only afford

relief “if the error had a serious effect on the fairness, integrity or public reputation of

judicial proceedings.” Barronette, 46 F.4th at 201 (cleaned up). As we did in Barronette,

we hold the Rehaif error had a serious effect on Davis’ § 922(g)(1) conviction. Specifically,

Davis has shown “why a jury in an error-free trial might have reasonable doubts as to the

knowledge-of-felon-status element, thus calling into question whether a jury would have

convicted [him] had they been required to find beyond a reasonable doubt that he knew at

7 Arguing against this result, the Government points to a single jailhouse phone call in which Davis stated that he had stashed firearms in the woods but was not going to retrieve them because of a police presence. The Government asks too much of that evidence to cast it as proving that Davis knew of his felon status at the time this statement was uttered.

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the time of his” possession offense that he also knew of his felon status. Id. (cleaned up).

These circumstances combine to effect “a miscarriage of justice” should we affirm his

§ 922(g)(1) convictions. Id. (citation omitted). We therefore reverse Davis’ § 922(g)(1)

convictions (Counts 16 and 30).

The question then becomes the scope of our remand instruction. Given the

sentencing transcript, we believe justice is best served by remanding for entry of an

amended judgment without the need for a plenary resentencing. During sentencing, the

district court specifically engaged the question of whether it would impose the same

sentence if the § 922(g)(1) convictions were reversed. It unequivocally responded that it

would impose the identical sentence regardless of this outcome, stating:

[A]bsolutely, Counts 16 and 30, if for some reason those 10-year sentences had to be vacated, I would still believe that the 25 years on the other counts, followed by the five years on Count 32, would be reasonable and sufficient without being greater than necessary.

J.A. 6527. Reviewing the nature of Davis’ remaining convictions and the district court’s

explanation at sentencing for the sentence it imposed, we conclude that this statement

adequately addresses the basis for Davis’ sentence and eliminates the need for

resentencing.

4. Admissibility of Evidence

The Defendants raise various objections to the district court’s rulings authorizing

the admission of certain evidence at trial. First, all of the Defendants challenge on plain-

error review the district court’s decision to allow the Government to admit certain music

videos, music lyrics, and social media posts created by the Defendants, which they claim

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did not prove any element of any offense and were unfairly prejudicial under Federal Rule

of Evidence 403. Next, Bailey argues that the district court abused its discretion in allowing

the introduction of expert testimony concerning a “match” in firearms evidence because

that testimony conflicted with the district court’s pre-trial ruling limiting the scope of the

expert testimony. Lastly, Davis and Anderson argue that because their felon-in-possession

convictions cannot stand under Rehaif, evidence that was admissible only in support of that

offense—namely, evidence of their felon status—was otherwise unfairly prejudicial and

requires vacatur of their remaining convictions.

a. Music Videos, Lyrics, & Social Media Evidence

The Government introduced into evidence music videos, lyrics, and social media

posts generated by and depicting the Defendants and others, which the Defendants contend

on appeal were irrelevant and unduly prejudicial because they did not prove any element

of any offense and were inherently inflammatory. They argue that this evidence should not

have been admitted under a proper assessment of Rules 401, 402, and 403. And they argue

that the error prejudiced them such that their convictions should be vacated and the case

remanded. We disagree.

As an initial matter, we note two procedural concerns before turning to the merits.

First, the parties disagree on whether this issue was preserved in the district court and how

that affects our standard of review. We need not resolve that question, however, because

even assuming that the Defendants adequately preserved the issue when Davis (acting

alone) raised it in a motion in limine, they have not demonstrated the district court abused

its discretion in allowing the admission of this evidence.

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Second, we note that by attacking distinct categories of evidence in cursory fashion

on appeal, the Defendants have painted their challenge with such a broad brush that they

arguably fell short of the requirements of Federal Rule of Appellate Procedure 28(a), which

requires meaningful engagement with the record and applicable case law. See Fed. R. App.

P. 28(a)(8); see Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017)

(noting that to adequately raise an issue on appeal, parties are required to take more than

“a passing shot at [an] issue”). Instead, the Defendants challenge the admissibility of

everything from social media posts and images to music videos and lyrics collectively,

using only a few examples to support their sweeping argument that the admission of this

evidence wholistically impacted the entire trial. We need not rely on this procedural

deficiency, however, and instead employ a similarly broad-brush approach rather than a

piece-by-piece review. Undertaking this review, we discern no error in the district court’s

decision to admit these categories of evidence.

The challenged evidence was not clearly irrelevant nor was it unfairly prejudicial.

First, it met the “relatively low” threshold for establishing relevancy in that it had “‘any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.’” United

States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995) (quoting Fed. R. Evid. 401 (emphasis

added)). In the specific context of social media posts and music lyrics, we have previously

recognized that such evidence “can be relevant if [it] match[es] details of the alleged crime”

or “show[s] a defendant’s knowledge or motive.” United States v. Recio, 884 F.3d 230,

235 (4th Cir. 2018). Some of the evidence was relevant to the charged conspiracies because

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it helped the Government to establish identity and relationships given that the Defendants

and co-conspirators are depicted together. Still more of this evidence lent additional

support for components of the charged conspiracies. For example, they feature the

Defendants surrounded by firearms or cash; making MMP hand signals or wearing MMP

clothing; and flaunting a violent, drug-fueled lifestyle with specific lyrics and images

connecting these acts specifically to MMP’s turf. In short, we find no reversible error

occurred under Rule 401’s standards.

Nor have the Defendants shown plain error under Rule 403’s grounds for

admissibility. Under this rule, district courts have broad discretion to “exclude relevant

evidence if its probative value is substantially outweighed by a danger of,” inter alia,

“unfair prejudice.” Fed. R. Evid. 403. But this rule “generally favor[s] admissibility.”

United States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998). Yet again, we are guided by our

prior recognition that while there are times that “in some cases courts have excluded lyrics,

finding they primarily served to paint the defendant in an unflattering light,” “[t]his is not

such a case.” Recio, 884 F.3d at 236. The Defendants were charged for their conduct arising

from a multi-year RICO and drug conspiracy involving the MMP, and evidence of the

music videos, lyrics, and social media posts went to that point without being unfairly

prejudicial as to matters beyond making that connection. Further, given the extensive

evidence demonstrating each of the Defendants’ own connection to specific acts within the

conspiracies and other offenses, the admission of the challenged evidence—which went

more broadly to big-picture matters in the case—was harmless. See Fed. R. Crim. P. 52(a)

(“Any error, defect, irregularity, or variance that does not affect substantial rights must be

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disregarded.”); Fed. R. Evid. 103(a) (stating that evidentiary errors require reversal only if

they “affect[] a substantial right”).

In short, the admission of this evidence does not constitute reversible error.

b. Firearms-Match Evidence (Bailey)

Before James Wagster, an expert in firearms identification, testified on behalf of the

Government, Bailey moved to exclude or limit his testimony on the ground that it was

impossible to say with one-hundred-percent certainty that firearms and ballistics evidence

“matched” each other. The district court ruled that Wagster could offer his opinion that

something was a match, stating: “I’m not going to prevent him from saying that, in his

opinion, it came from the same gun or that it is a match within a reasonable degree of

certainty in the field of ballistics.” J.A. 3858. The court also indicated that it would give a

limiting instruction that “the fact that someone is allowed to testify as an expert does not

mean that the jury has to accept that opinion.” J.A. 3863.

At the outset of Wagster’s testimony, the district court gave that limiting instruction.

Wagster then testified about how he conducted comparisons of firearms and ammunitions

components, the industry standards he uses in conducting his comparisons, and how his

office runs cross-checks on their conclusions. Wagster then testified about ballistics

evidence recovered from the scenes of two crimes allegedly involving Bailey: (1) a

shooting on February 8, 2015, at a BP gas station, and (2) the murder of James Edwards

on February 12, 2015. Wagster described the six casings and one live round recovered from

the BP gas station shooting as all having been fired from “the same unknown firearm,” a

.40 caliber Smith & Wesson. J.A. 3883–88. He described casings and live rounds recovered

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from the scene of Edwards’ murder, stating that they too were fired from a .40 caliber

Smith & Wesson and had all come from “the same firearm, same unknown firearm.” J.A.

3888–90. Lastly, he testified that the casings and live rounds recovered at the BP gas station

and the scene of Edwards’ murder were all fired from “the same unknown firearm.” J.A.

3890–92. On direct and cross-examination, Wagster reiterated the bases for making his

comparisons and his conclusion about them. J.A. 3892–900. Bailey did not object to

Wagster’s testimony about his comparison conclusion at the time it was given.

On appeal, Bailey argues that the district court committed reversible error by

allowing Wagster to testify in contradiction to the pre-trial ruling limiting the degree of

certainty to which he could opine that the ballistics evidence matched. Bailey asserts that

Wagster’s testimony that the evidence was the “same” or a “match” expressed an

impermissible level of certainty and was prejudicial because it served as the linchpin of the

Government’s case connecting Bailey to Edwards’ murder. As such, he requests that this

Court reverse his conviction for murder in aid of racketeering.

We discern no plain error in the admission of this evidence. At the outset, on appeal,

Bailey does not challenge the district court’s initial ruling on his motion in limine but

instead argues that the court erred in allowing Wagster to testify outside the scope of that

ruling at trial. It was Bailey’s responsibility to object if he believed that this had occurred,

yet he did not do so. Accordingly, we review his objection for plain error. See United States

v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (stating that the Court reviews for plain

error when the “motion in limine was not based upon [and did not seek] a ruling on the

precise issue [the defendant] now seeks to raise” (emphasis added) (cleaned up)).

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Bailey’s argument is predicated on a misapprehension of the district court’s initial

ruling and Wagster’s actual testimony. The district court ruled that Wagster could testify

that, in his opinion, the firearms evidence recovered from the scene of the BP gas station

and Edwards’ murder “matched.” It could not have been clearer in rejecting Bailey’s

contention that such testimony veered into presenting opinion testimony as certitude,

stating: “I think that saying that something is the same or a match, in his opinion, is not the

same as saying, ‘And I’m a hundred precent convinced that my opinion is correct.’” J.A.

3858. The Court then elaborated that it was “not going to prevent [Wagster] from saying

that, in his opinion, it came from the same gun or that it is a match within a reasonable

degree of certainty in the field of ballistics.” J.A. 3858. Wagster’s testimony fell within

those parameters, providing his opinion that the crime-scene firearms/ballistic evidence

from the BP gas station and Edwards’ murder stemmed from the same firearm. The

Government’s questions on this point were framed in a broad manner so as to solicit

Wagster’s opinion without seeking the degree of certainty he had that his opinion was

correct—e.g., “what conclusions were you able to draw . . . ?,” J.A. 3891, and “does that

mean that you concluded . . . ?,” J.A. 3893.

Not only did Wagster’s testimony not express a degree of certitude in his opinion,

but the district court’s limiting instruction reinforced that point to the jurors, reminding

them that although Wagster was permitted to offer opinion testimony on the firearms

evidence, they were still charged with the duty to determine what weight to give it:

I will remind the jury, as I think I said at the very outset of the case, the fact that a witness is found qualified to give you opinion testimony, it’s still up to you whether to accept that testimony. It’s up to you to listen; to consider the

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reasons, the training and experience; and then you give an expert’s opinion the weight, if any, that you believe it should have, just as you do with any other witness.

J.A. 3877. We generally presume the jurors follow such limiting instructions. Samia v.

United States, 599 U.S. 635, 646 (2023) (“[O]ur legal system presumes that jurors will

attend closely the particular language of such instructions in a criminal case and strive to

understand, make sense of, and follow them.” (cleaned up)); United States v. Johnson, 54

F.3d 1150, 1160–61 (4th Cir. 1995). No juror following this instruction would mistake

Wagster’s opinion testimony for certitude. Thus, considering both the substance and

context of Wagster’s testimony against the district court’s pre-trial ruling, we reject

Bailey’s argument that reversible error occurred.

c. Felon-Status Evidence (Anderson and Davis)

The final issue arising from the admission of evidence stems from the reversals of

Anderson’s and Davis’ felon-in-possession convictions. As noted, after the trial and in light

of Rehaif, the Government moved to dismiss Anderson’s § 922(g) conviction. And, we

have now held that Davis’ § 922(g) convictions must also be reversed in light of Rehaif.

Because the § 922(g) charges were at issue during the trial, the Government was permitted

to introduce evidence of Anderson’s and Davis’ prior felony convictions. That evidence

likely would not have been admissible without the § 922(g) charges. Anderson and Davis

contend that the admission of that evidence had a prejudicial spillover effect that requires

reversal of their remaining convictions.

To prevail on an assertion of prejudicial spillover effect, defendants must show two

things: (1) “that the challenged evidence would have been inadmissible at trial without the

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vacated count,” and (2) that the challenged evidence “prejudiced his convictions on the

remaining counts.” United States v. Hart, 91 F.4th 732, 741 (4th Cir. 2024).

Anderson and Davis cannot show prejudice for at least three reasons. First, the

evidence of a prior, non-violent felony conviction was introduced in a Sergeant Joe Friday

“just the facts” manner—briefly and without any description of the underlying offense

conduct. So, the jury could glean very little from the evidence before it that might tempt

them to infer culpability for the charged offenses just as a consequence of any prior

convictions. Second, the evidence showing Anderson’s and Davis’ culpability for the

remaining convictions was extensive, amply supporting the jury’s guilty verdicts beyond a

reasonable doubt. Third, a jury instruction mitigated the risk of prejudicial spillover.

Specifically, this Court has previously recognized that “concerns of prejudicial spillover

[can be] mitigated by the district court’s explicit instruction that the jury must consider

each count separately.” United States v. Barringer, 25 F.4th 239, 249 (4th Cir. 2022)

(cleaned up). The district court gave that instruction here, and, absent evidence to the

contrary, we can presume that the jury followed it. For these reasons, we conclude that

Anderson and Davis have not shown any prejudicial spillover arising from the admission

of their prior convictions.

5. Banks’ Verdict Form

Banks raises two arguments in support of his contention that his drug conspiracy

conviction should be reversed because of a perceived flaw in the verdict form.

The charged conspiracy under 21 U.S.C. § 846 was an agreement to violate the

terms of 21 U.S.C. § 841(b)(1)(C), which prohibits the distribution of certain controlled

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substances, subject to a “term of imprisonment of not more than 20 years.” That baseline

offense is subject to two aggravated variations of the offense, which trigger different

statutory punishments. Offenses involving “28 grams or more” of cocaine base are subject

to a term of five years to forty years’ imprisonment. § 841(b)(1)(B)(iii). And offenses

involving “280 grams or more” of the same are subject to a term of imprisonment of ten

years to life. § 841(b)(1)(A)(iii).

If the jury found Banks guilty of the drug conspiracy offense (as it did), then the

jury was asked to “determine unanimously the quantity of cocaine base (‘crack’)

reasonably foreseeable to him.” J.A. 6356. The verdict form provided two options with a

line for the jury to place a “check” next to its finding. One option was for an amount of

“280 grams or more” and the other was for “[l]ess than 280 grams.” J.A. 6356. The jury

checked “[l]ess than 280 grams.” J.A. 6356. Consistent with that verdict, the district court

sentenced Banks to less than twenty years’ imprisonment.

Banks first contends that the verdict form is erroneous, requiring reversal of his drug

conspiracy conviction. As support, he argues that the statute divides the offense based on

three drug weights—“less than 28 grams,” “28 grams or more,” and “280 grams or more”

of cocaine base—and the verdict form impermissibly diverges from this language to create

a new offense based on the drug weight of “[l]ess than 280 grams.” Banks asserts that the

verdict form’s departure led to a conviction for a “judicially created, and, thus,

constitutionally invalid offense,” which must be vacated. Opening Br. 79.

Contrary to Banks’ argument, this is not a case where the verdict form permitted the

jury to convict a defendant of an offense that does not exist. To the contrary, §§ 841 and

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846 permit a conviction based on evidence that the defendant entered into the charged

conspiracy to distribute a controlled substance regardless of the specific type of narcotic or

drug weight attributable to Banks personally. See United States v. Collins, 415 F.3d 304,

314 (4th Cir. 2005) (“Guilt of the substantive offense defined in § 841(a) is not dependent

upon a determination of the amount or type of narcotics distributed.”). Here, the operative

indictment alleged a drug conspiracy to distribute, inter alia, 280 grams or more of cocaine

base. The jury found Banks guilty of participating in that conspiracy. That’s sufficient to

sustain his conviction.

The verdict form’s two choices for the jury’s finding as to how much cocaine base

to attribute to Banks was relevant solely for purposes of establishing what statutory

penalties would apply to him as a result of that conviction. The baseline § 841 offense for

distributing any amount of cocaine base—including amounts less than 28 grams—carries

a penalty of zero to twenty years’ imprisonment, and that’s the range within which Banks

was sentenced. Certainly, there are also two aggravated forms of the offense that subject a

defendant to a higher statutory range based upon a jury’s finding that the offense involved

28 grams or more or 280 grams or more. And under Supreme Court case law, findings that

increase the statutory penalty to which a defendant is exposed must be submitted to the

trier of fact and found beyond a reasonable doubt. See United States v. Promise, 255 F.3d

150, 154–57 (4th Cir. 2001) (en banc). But neither of those findings are required for the

jury to find a violation of §§ 841 and 846 in the first instance. Rather, those findings as to

drug weight were required strictly to determine whether the statutory penalty would be

adjusted beyond the baseline statutory penalty. See Collins, 415 F.3d at 314–15; see also

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United States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (“[A] jury . . . must determine

the threshold drug quantity used to establish a defendant’s statutory sentencing range under

§ 841(b).”).

Here, the verdict form limited the statutory penalty to two options, one consistent

with sentencing under the baseline penalty (“less than 280 grams,” which would subject

Banks to zero to twenty years’ imprisonment) and one consistent with one of the enhanced

penalty ranges (“280 grams or more,” which would subject him to punishment between ten

years’ and life imprisonment). Far from a judicially crafted offense, this reflects a valid

way to articulate the § 841 offense and a potentially applicable punishment variation had

the jury made the requisite finding to support it. The jury did not find an amount of 280

grams or more attributable to Banks, so the district court’s sentence needed to be—and

was—within § 841’s baseline statutory penalty for possession of any amount of cocaine

base: zero to twenty years’ imprisonment.

Next, Banks contends that the verdict form was flawed because the jury should have

been permitted to hold him responsible for the lesser-included offense of participating in a

conspiracy involving less than 28 grams of cocaine base. He contends that had the jury

been instructed properly, it is likely that it would have found him responsible for that lesser

quantity because the record evidence did not support a finding of 28 grams or more, just as

it did not support a finding of 280 grams or more. This omission matters, he asserts, because

the district court would have had to attribute less than 28 grams of cocaine to him for

purposes of calculating his Guidelines offense level, which in turn may have resulted in a

lower sentence.

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We reject this argument based on the principles already discussed. Had the verdict

form provided the jury with the option of finding “less than 28 grams” attributable to him,

that would not have altered in any way the statutory penalty to which he was subject. And

Banks’ argument that this lesser option might have affected the Guidelines calculation is

irrelevant. As we have repeatedly recognized, “[o]nce this maximum [statutory] penalty is

established, a fact (sentencing factor) that may increase the actual sentence imposed within

that maximum is not subject to” being found beyond a reasonable doubt by a jury. Promise,

255 F.3d at 156 n.5. Instead, at sentencing, the district “court is entitled to find

individualized drug quantities by a preponderance of the evidence, as part of its calculation

of an advisory Guidelines range, so long as its resulting sentence is within the relevant

statutory range.” Brooks, 524 F.3d at 562. That’s exactly what the district court did here—

it sentenced Banks consistent with the statutory penalty that would apply for a violation of

§ 841 involving any amount of cocaine base, and then, when calculating the advisory

Guidelines range, it made findings about an individualized drug quantity to attribute to

Banks using a preponderance-of-the-evidence standard. At bottom, the district court was

not required to submit permutations involving the Sentencing Guidelines’ assessment of

drug weight to the jury because that is a separate function that occurs after the trier of fact

establishes the defendant’s statutory sentencing exposure.

Because the purported error Banks complains of would not alter the validity of his

conviction, he has not shown error requiring reversal of his drug conspiracy conviction.

37 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 38 of 46

****

To recap the issues related to the Defendants’ convictions, we hold that Davis has

shown reversible Rehaif error as to his § 922(g)(1) convictions but that the Defendants’

remaining arguments challenging their convictions lack merit. 8 Next, we turn to the

Defendants’ challenges to their sentences.

8 We have also considered the Defendants’ other trial-oriented objections and conclude that they can each be rejected without lengthy discourse. First, Davis and Anderson both challenge the sufficiency of the evidence to prove their participation in the two charged conspiracies. Our review of the record confirms ample evidence for the jury to find each element of the charged conspiracy was satisfied. Critically, the Government was not required to show that either defendant “knew the particulars of the conspirac[ies]” so long as the record shows that each defendant “joined with an understanding of the unlawful nature thereof and willfully joined in the plan on one occasion even if he played only a minor part” or was involved in only one aspect of it. United States v. Tillmon, 954 F.3d 628, 640 (4th Cir. 2019). Nor must the record “exclude every reasonable hypothesis of innocence” to provide sufficient evidence of guilt, “provided the summation of the evidence permits a conclusion of guilt beyond a reasonable doubt.” Id. (cleaned up). On this standard, in light of the extensive evidence put forward at trial, we hold that the evidence was sufficient to support the jury’s verdicts. Next, Banks, Anderson, and Davis assert that the district court abused its discretion in refusing to give a multiple conspiracies instruction. But that instruction “is not required unless the proof at trial demonstrates that [they] were involved only in separate conspiracies unrelated to the overall conspiracy charged in the indictment.” United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (cleaned up). And the failure to give a multiple conspiracies instruction constitutes reversible error only upon showing that “the evidence of multiple conspiracies [was] so strong in relation to that of a single conspiracy that the jury probably would have acquitted on the conspiracy count[s] had it been given a cautionary multiple-conspiracy instruction.” United States v. Bartko, 728 F.3d 327, 344 (4th Cir. 2013) (cleaned up). On this high standard and the evidence put forward at trial, we find no reversible error as to this issue. Lastly, Anderson claims that his convictions should be reversed because the Government’s arguments at closing contradicted the terms of a pre-trial stipulation. We have considered the underlying facts, including the terms of the stipulation and the Government’s argument at closing, and conclude that Anderson’s argument is predicated on an interpretation of the stipulation that goes beyond its actual language. Moreover, once Anderson objected at trial, he agreed to resolving his concern through clarifying statements (Continued) 38 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 39 of 46

B. Sentencing Challenges

The Defendants raise several issues challenging the procedural or substantive

reasonableness of their sentences, which we review under a highly deferential standard of

review. United States v. Provance, 944 F.3d 213, 217 (4th Cir. 2019); see Gall v. United

States, 552 U.S. 38, 46 (2007) (instructing that appellate review of a sentence “is limited

to determining whether they are ‘reasonable’”). The Court’s first duty is to “ensure that the

district court committed no significant procedural error,” Gall, 552 U.S. at 51, such as by

“failing to properly calculate the applicable Sentencing Guidelines range, failing to

consider the 18 U.S.C. § 3553(a) factors, and failing to adequately explain the sentence—

‘including an explanation for any deviation from the Guidelines range,’” Provance, 944

F.3d at 218 (quoting Gall, 552 U.S. at 51). Only upon assuring ourselves that the sentence

is procedurally reasonable do we turn to the question of substantive reasonableness, which

requires “taking into account the totality of the circumstances, including the extent of any

variance from the Guidelines range.” Id. at 219 (cleaned up).

1. Davis

Davis challenges the substantive reasonableness of his sentence, arguing that it was

predicated on a criminal history assessment that was too high. He notes that his three past

offenses consisted of “a juvenile adjudication and two minor convictions, none of which

resulted in a sentence of imprisonment,” making a criminal history category of III

unreasonable. Opening Br. 91. He asserts the district court should have recognized that

to the jury, which were given. We therefore find no basis for reversing his convictions as a result of these circumstances. 39 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 40 of 46

the resulting Guidelines range over-represented his criminal history, making a sentence

within that range substantively unreasonable.

We have reviewed the record and disagree with Davis. On appeal, we afford Davis’

within-Guidelines sentence a presumption of substantive reasonableness. See United

States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013). Davis has not come forward

with anything that rebuts that presumption. To the contrary, our review of the record and

sentencing transcript confirms that the district court’s chosen sentence was reasonable and

adequately explained. 9

2. Anderson

Anderson challenges the procedural and substantive reasonableness of his sentence,

arguing (1) the district court clearly erred in imposing U.S.S.G. § 2D1.1(b)(1)’s firearm

offense-level enhancement because no evidence connected Anderson’s possession of a

firearm to his role in the drug conspiracy, and (2) the district court did not adequately

9 In his reply brief, Davis adds a second argument to support his contention that his sentence is substantively unreasonable based on over-representation of his criminal history. Citing newly enacted and retroactively applicable amendments to the Guidelines (Amendment 821), he observes that the version of § 4A1.1(d) (2018) that had been used to assess one criminal history point apiece for two of his prior state convictions was repealed. Davis contends that the replacement language, which is retroactively applicable and found in § 4A1.1(e) (2024), is narrower and would not apply to him, resulting in two fewer criminal history points and a lower criminal history category. This change, he contends, further supports his position that his sentence should be vacated and remanded for resentencing based on his Guidelines range’s over-representing his criminal history. We decline Davis’ invitation to address this Guidelines change now, but note that nothing prohibits him from arguing for relief based on Amendment 821 in a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). 40 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 41 of 46

explain the basis for imposing an upward variant sentence. Neither of these arguments has

merit.

The court did not clearly err in calculating Anderson’s offense level to include

§ 2D1.1(b)(1)’s firearm enhancement. That enhancement applies when a defendant

possesses a “dangerous weapon (including a firearm)” during the course of the drug

trafficking offense, “unless it is clearly improbable that the weapon was connected with

the offense.” § 2D1.1(b)(1) & cmt. n.11(A). The district court reasonably held that the

enhancement applied here given the extensive trial evidence that Anderson “suppl[ied]

large quantities of heroin in other areas, traveling around, perhaps, to do that. . . . [And it]

makes a great deal of sense that [the loaded, stolen handgun found in his possession] was

for the purpose of . . . protecting himself and drugs in the course of the conspiracy.” J.A.

6774–75.

We also reject Anderson’s contention that the district court failed to adequately

explain the basis for an upward-variant sentence. In imposing Anderson’s sentence, the

district court recapped his offense conduct, highlighting particular § 3553(a) factors and

individual characteristics that drove its sentencing decision. It was not required to do more.

The court’s explanation for the sentence it selected shows “a rationale tailored to the

particular case at hand and adequate to permit meaningful appellate review,” “lea[ving] no

doubt regarding the court’s reasons for selecting the particular sentence.” United States v.

Allmendinger, 706 F.3d 330, 343 (4th Cir. 2013); United States v. King, 673 F.3d 274, 283

(4th Cir. 2012) (tethering the adequacy of the district court’s sentencing explanation,

including any deviation from the Guidelines range, to providing an “individualized

41 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 42 of 46

assessment” that “need not be elaborate or lengthy” so long as the court gives “serious

consideration” to its decision (citations omitted)).

3. Lockley

Lockley argues that his sentence is procedurally and substantively unreasonable

because (1) it relied in part on his participation in a murder that the jury had specifically

rejected finding him responsible for, and (2) it selected a sentence unreasonably aimed to

avoid a sentencing disparity between co-defendants when they were far more culpable

than he was. Having reviewed the record, we discern no error.

Under the preponderance-of-the-evidence standard applicable at sentencing, the

district court found that Lockley was aware of other conspirators’ violent acts, including

having witnessed a murder, even though the jury determined that the evidence did not

show beyond a reasonable doubt that murder was reasonably foreseeable to him in

furtherance of the racketeering conspiracy. As we have previously recognized in a

different, but comparable, context, “an acquittal does not necessarily establish the criminal

defendant’s lack of criminal culpability, and a jury cannot be said to have necessarily

rejected any facts when it returns a general verdict of not guilty. Instead, the different

standards of proof that govern at trial and sentencing enable the sentencing court to find a

fact by a preponderance of the evidence that the jury may not have found beyond a

reasonable doubt.” United States v. Jinwright, 683 F.3d 471, 484 (4th Cir. 2012) (cleaned

42 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 43 of 46

up). 10 The district court thus did not err in considering Lockley’s role in the murder despite

the jury’s finding.

We also reject Lockley’s argument that his sentence is substantively unreasonable.

In so arguing, he seriously understates the record evidence as to his role in the offense

conduct. The district court ably supported the basis for the sentence it imposed, setting out

in detail the offense conduct and other § 3353(a) factors that led to its decision. Moreover,

the district court—which was intimately familiar with the specific nuances in each of the

co-defendants’ conduct—acted within its “sizeable discretion” to assess the Defendants’

relative culpability in considering the statutory instruction to impose sentences that avoid

unwarranted sentencing disparities. United States v. Abu Ali, 528 F.3d 210, 266 (4th Cir.

2008); see 18 U.S.C. § 3553(a)(6) (stating that one of the factors to consider in sentencing

is “the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct”); United States v. Engle, 592 F.3d

495, 500 (4th Cir. 2010) (“Given the institutional advantages of district courts with regard

to sentencing matters, all sentences, including sentences significantly outside the

10 We note that on April 17, 2024, the United States Sentencing Commission announced amendments to the Guidelines that will “prohibit” acquitted conduct from being used in calculating the Guidelines range. U.S. Sentencing Comm’n News Release, Commission Votes Unanimously to Pass Package of Reforms Including Limit on Use of Acquitted Conduct in Sentencing Guidelines (April 17, 2024), https://www.ussc.gov/about/news/press-releases/april-17-2024 (last visited June 5, 2024) [https://perma.cc/3MTH-XRGC]. Assuming Congress does not alter them, those amendments do not go into effect until November 1, 2024. Id. For that reason, those amendments have no bearing on our review. 43 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 44 of 46

Guidelines range, must be reviewed under a deferential abuse-of-discretion standard.”

(cleaned up)).

4. Banks

Banks contends that his sentence is procedurally unreasonable because the district

court held him responsible for at least 196 grams of cocaine base, which he contends was

too much and thus made his offense level too high. He argues that the district court’s drug-

weight calculation was inconsistent with the jury’s verdict because the jury’s rejection of

a drug weight of “280 grams or more” necessarily means that it did not believe him to be

responsible for some of the drug quantity that the district court later relied on at

sentencing. He also contends that the district court improperly speculated about the drug

weight for which to hold him responsible by engaging in random extrapolations rather

than focusing on precise testimony to support the amounts.

We review for clear error the district court’s calculation of drug weight for purposes

of establishing a defendant’s Sentencing Guidelines offense level. United States v.

Randall, 171 F.3d 195, 210 (4th Cir. 1999). The Guidelines notes instruct that when no

known amount of drugs can be relied on to establish a defendant’s attributable drug

weight, the district court must “approximate the quantity of the controlled substance” at

issue. U.S.S.G. § 2D1.1 cmt. n.5. In undertaking that task, district courts “enjoy

considerable leeway” and “may give weight to any relevant information before it,

including uncorroborated hearsay, provided that the information has sufficient indicia of

reliability to support its accuracy.” United States v. Williamson, 953 F.3d 264, 273 (4th

Cir. 2020) (cleaned up); see also United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004)

44 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 45 of 46

(observing that “a district court need not ‘err[]’ on the side of caution or otherwise; it must

only determine that it was more likely than not that the defendant was responsible for at

least the drug quantity attributed to him”). Further, “sentencing courts may consider

acquitted conduct in establishing drug amounts for the purpose of sentencing, so long as

the amounts are established by a preponderance of the evidence.” Perry, 560 F.3d at 258.

That said, courts must “exercise caution in estimating drug quantity at sentencing, and

[must] not attribute speculative or scantily supported amounts to defendants.” Williamson,

953 F.3d at 273.

Wherever the line between a proper estimate and speculation lies, it is far removed

from what the district court did here. As the district court recounted, holding Banks

responsible for 196 grams was a conservative estimate based on the evidence before it.

Banks had participated in a multi-year conspiracy where he supervised others also

engaged in the distribution of cocaine base. The district court reasonably extrapolated an

approximate amount of cocaine base attributable to Banks based on his role in the

narcotics conspiracy. It did not clearly err in that calculation, nor is any plain error

otherwise evident from the record. 11

11 This argument fails for another reason too. Even if Banks were correct that the district court miscalculated the drug weight, any error at sentencing would have been harmless. At sentencing, the district court repeatedly stated that the Guidelines were just one factor in determining Banks’ sentence, and it also expressly stated that “regardless of any error that I may have made in calculating the guidelines,” “[t]he sentence that I have announced is the sentence that I believe is reasonable” based on the totality of the § 3553(a) analysis. J.A. 6438. So even assuming error occurred, we can be confident that the sentence would not have changed as a result of the drug-weight calculation and his sentence is otherwise reasonable. 45 USCA4 Appeal: 20-4250 Doc: 166 Filed: 06/12/2024 Pg: 46 of 46

III.

For the reasons set out above, we reverse Davis’ § 922(g) convictions (Counts 16

and 30) for Rehaif error that is cognizable on plain-error review. We vacate and remand

his criminal judgment solely for the district court to enter an amended judgment and

sentence consistent with this decision without the need for plenary resentencing. As to the

Defendants’ other arguments, we reject them and thus affirm their convictions and

sentences.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS