United States v. Pedro Gutierrez ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4656
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PEDRO GUTIERREZ, a/k/a Magoo, a/k/a Light, a/k/a Inferno,
Defendant – Appellant.
No. 18-4665
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES BAXTON, a/k/a Grown, a/k/a Frank White,
Defendant – Appellant.
No. 18-4855
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CYNTHIA GILMORE, a/k/a Lady Bynt, a/k/a Cynthia Young,
Defendant – Appellant.
Appeals from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Court Judge. (3:17-cr-00134-FDW-DSC-
21; 3:17-cr-00134-FDW-DSC-5; 3:17-cr-00134-FDW-DSC-19)
Submitted: March 26, 2020 Decided: June 26, 2020
Before WILKINSON, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson
and Judge Thacker joined.
Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant
Pedro Gutierrez. Matthew C. Joseph, LAW OFFICE OF NORMAN BUTLER, Charlotte,
North Carolina, for Appellant James Baxton. Aaron E. Michel, Charlotte, North Carolina,
for Appellant Cynthia Gilmore. R. Andrew Murray, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
2
AGEE, Circuit Judge:
Pedro Gutierrez, James Baxton, and Cynthia Gilmore (collectively “Appellants”)
appeal various rulings of the district court following their convictions and sentences.
Finding no reversible error, we affirm.
I.
Appellants are members of United Blood Nation (“UBN”), an east coast gang that
is governed by a common set of rules, has a strict hierarchical structure, and is composed
of tightly controlled sets. The relevant set here is the Nine Trey Gangsters, of which
Gutierrez is the leader, or “godfather.” He is also the chair of the UBN council, which the
Government described as “the governing body of all Bloods on the East Coast.” 1 J.A. 1503.
Immediately below Gutierrez in the Nine Trey’s leadership hierarchy is Baxton. During
the relevant time period, Gutierrez and Baxton were incarcerated in the New York
Department of Corrections.
During the same period, Gilmore had a leadership role with a Nine Trey set in North
Carolina and served as a liaison between Gutierrez and UBN members in North Carolina
for the direction and guidance of UBN gang activities.
1
As the Government summarized Gutierrez’s position at trial, “[i]n the Bloods
organization no one is above him. No one is more powerful than him. [H]e’s the CEO of
the Bloods.” J.A. 1503.
3
In March 2018, a federal grand jury in the Western District of North Carolina
indicted Appellants and eighty other UBN members on various charges including
conspiracy to engage in a pattern of racketeering activities, in violation of the Racketeer
2
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). The
racketeering activities described in the indictment were numerous, including multiple acts
involving murder and robbery, use or carry of a firearm during and in relation to a crime
of violence, assault with a dangerous weapon, possession with the intent to distribute illegal
narcotics, possession of a firearm by convicted felons, wire fraud, identity theft, and bank
fraud.
As leaders of UBN, Appellants ordered, guided, or actively participated in these
racketeering activities. For instance, Gutierrez ordered the Nine Trey to engage in an “all
out war” against a North Carolina gang, Pretty Tony, and directed Nine Trey members to
kill Pretty Tony members who did not join the Nine Trey. J.A. 2123. Gutierrez’s order led
to numerous fights and stabbings in prisons, causing five prisons to go on lockdown, as
well as shootings outside of prison. Similarly, Baxton ordered the Nine Trey to attack
Jarrod Hewer, the godfather of another UBN set, for plotting to remove Gutierrez from his
UBN leadership position. As a result, Hewer was attacked and stabbed several times by
UBN members while incarcerated. For her part, Gilmore provided funds necessary to
2
Seventy-two indictees pleaded guilty; four were found guilty after a separate jury
trial from the Appellants’ trial; and one was found guilty in a separate bench trial. Of the
remaining three, the Government moved to dismiss the indictments for two individuals,
and one remains a fugitive.
4
facilitate these criminal activities by engaging in tax fraud. She gave stolen personal
information to Margo Lewis and had her file fraudulent tax returns using that information.
Lewis then directed tax refunds generated by those fraudulent returns to be deposited into
a bank account of Gilmore’s choice.
Appellants proceeded to a jury trial and were all found guilty of the RICO
conspiracy. Following the jury’s verdict, the district court sentenced Gutierrez and Baxton
to 240 months’ imprisonment and Gilmore to 228 months’ imprisonment.
Appellants timely appeal their convictions and sentences. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
Appellants raise numerous issues on appeal, and we address each argument in turn.
A.
First, Appellants challenge the district court’s decision to empanel an anonymous
jury. A month prior to the start of trial, the Government moved to empanel an anonymous
jury, citing the danger UBN could pose to the jury and the high media attention to this case.
The Government highlighted that UBN obstructed justice in another UBN prosecution by
abducting a prosecutor’s father and killing a witness and his wife. Appellants opposed the
motion, contending that their circumstances were indistinguishable from other criminal
defendants who were tried with a regular jury and that they specifically did not pose any
threats to jurors in this case. The district court disagreed, granted the Government’s motion,
5
and ordered the names of the jurors could be given only to Appellants’ counsel, who were
prohibited from revealing those names to their clients and others. The court explained that
“for purposes of security, [the court] ha[d] to err on the side of caution,” and it “need[ed]
to take reasonable security methods, and . . . make sure there’s reasonable safeguards as to
the prejudice against the defendant.” J.A. 1455.
On appeal, Appellants argue that the district court erred because they did not pose
any threats to jurors and its decision prejudiced the jury against them. As a result, they
assert they were deprived of a fair trial by an impartial jury.
We review the district court’s decision to empanel an anonymous jury “under a
deferential abuse-of-discretion standard,” United States v. Dinkins, 691 F.3d 358, 371 (4th
Cir. 2012), and hold that the district court did not abuse its discretion in this case.
Although “[t]he decision to empanel an anonymous jury and to withhold from the parties
biographical information about the venire members is, in any case, an unusual measure,”
“[a] federal district court may empanel an anonymous jury in any non-capital case in which
the interests of justice so require.” Id. at 372 (internal quotation marks omitted). An
anonymous jury is warranted if two conditions are present: “(1) there is strong reason to
conclude that the jury needs protection from interference or harm, or that the integrity of
the jury’s function will be compromised absent anonymity; and (2) reasonable safeguards
have been adopted to minimize the risk that the rights of the accused will be infringed.” Id.The district court found both conditions existed here, and we agree.
6
Courts may assess whether “strong reasons” for an anonymous jury exist by
considering the five Ross 3 factors:
(1) the defendant’s involvement in organized crime, (2) the defendant’s
participation in a group with the capacity to harm jurors, (3) the defendant’s
past attempts to interfere with the judicial process, (4) the potential that, if
convicted, the defendant will suffer a lengthy incarceration and substantial
monetary penalties, and (5) extensive publicity that could enhance the
possibility that jurors’ names would become public and expose them to
intimidation or harassment.
Id. at 373 (quoting Ross, 33 F.3d at 1520). “[T]he presence of any one factor or set of
factors [does not] automatically compel a court to empanel an anonymous jury” because
the list of factors is only “instructive” and not “exhaustive.” Id.
In considering the Ross factors, “a district court must always engage in a context-
specific inquiry based upon the facts of the particular case before the court.” Id. In non-
capital cases like this one, the district court’s findings “need not have been based on
evidence already in the record at the time the decision was made, and may be upheld on
appeal in light of the evidence ultimately presented at trial. However, [the findings] must
rest on something more than speculation or inferences of potential risk.” Id. at 374 (internal
citations omitted).
3
The factors are attributed to United States v. Ross, 33 F.3d 1507 (11th Cir. 1994),
in which the Eleventh Circuit instructed its courts to consider “several factors,” including
these five factors, in finding sufficient reason for empaneling an anonymous jury. Id. at
1520. We used the Ross factors in Dinkins “because they are drawn from significant
judicial experience addressing the propriety of decisions whether to order anonymous
juries.” Dinkins, 691 F.3d at 373.
7
In this case, the district court held that the Ross factors indicated strong reasons for
an anonymous jury. We agree. The facts here are substantially similar to those of Dinkins
and United States v. Mathis, 932 F.3d 242 (4th Cir. 2019), where we concluded that the
Ross factors supported empaneling an anonymous jury. Dinkins involved defendants who
were members of a drug organization that had committed shootings and murders. We held
that by “virtue of their association with” the organization, the defendants “belonged to a
group involved in organized criminal activity,” and that organization “had the capacity to
harm jurors” because “other members of the group, who were not in jail, remained capable
for interfering with the judicial process.” 692 F.3d at 375. Furthermore, “the defendants
previously had engaged in attempts to interfere with the judicial process,” and were
currently “charged with murdering government informants and witnesses.” Id. at 375–76.
Moreover, there was “evidence of similar uncharged conduct.” Id. at 375. Given their
criminal conduct, the defendants faced “a potential death sentence or a term of life
imprisonment,” which gave them an incentive “to resort to extreme measures in any effort
to influence the outcome of their trial.” Id. at 376 (internal quotation marks omitted). After
discussing these factors, the Dinkins court did not address the last Ross factor—whether
the defendants’ trial would result in extensive publicity—because the record did not
indicate whether that had occurred or would likely occur. Id. Accordingly, we found strong
reasons for seating an anonymous jury based on the four applicable Ross factors.
Similar to Dinkins, Mathis involved defendants who were gang members and
presented circumstances that satisfied at least three Ross factors, which we held were
8
sufficient to empanel an anonymous jury. 932 F.3d at 252–54. There, the defendants were
“members of a violent street gang and were involved in a number of violent criminal
offenses, including witness tampering by murder,” had “associates who were not
incarcerated and could intimidate or harm the jurors,” and, if convicted, would receive
“lengthy incarceration and substantial penalties that may have induced them to intimidate
the jury.” Id. at 253.
As in Mathis and Dinkins, this case involves strong reasons supporting an
anonymous jury. Appellants are leaders of UBN and had individually and corporately
committed numerous violent crimes listed in the indictment. UBN has members who are
not incarcerated and are capable of harming jurors, as demonstrated by their murder of a
government witness and his wife in another North Carolina UBN case. Furthermore,
Baxton attempted to interfere with the judicial process by directing a UBN member to make
false statements to law enforcement. As a result of the crimes charged, Appellants faced
lengthy incarceration of up to 20 years’ imprisonment and substantial monetary penalties.
Based on these facts, we conclude that the Ross factors weighed in favor of an anonymous
jury and that the district court acted properly in seating such a jury.
After finding the first condition for seating an anonymous jury was satisfied, we
turn to the second condition—that is, whether “reasonable safeguards have been adopted
to minimize the risk that the rights of the accused will be infringed.” Dinkins, 691 F.3d at
372. We hold that this condition was also satisfied, as the district court properly adopted
appropriate reasonable safeguards by instructing the venire as follows:
9
We want to ensure that you will remain anonymous so you will not be
contacted by anyone in the media and ensure that no outside information is
communicated to any juror throughout the jury selection process and the trial.
This is so that each side can have a fair and impartial trial. The fact that we
are identifying you by number should have no impact at all on the
presumption of innocence that the defendants are entitled to or any impact in
any other way as you consider and decide the case if you were selected on
the jury.
J.A. 1456. By providing this instruction, the district court gave the jury “a neutral non-
prejudicial reason for empaneling an anonymous jury.” United States v. Hager, 721 F.3d
167, 188 (4th Cir. 2013). And we have approved a similar measure in Hager, 721 F.3d at
188–89, as “the generally accepted practice for minimizing prejudice, which is to downplay
(not accentuate) the significance of the juror anonymity procedure.” Dinkins, 691 F.3d at
379 (internal quotation marks omitted). “[B]ecause the district court properly instructed
the jury on the presumption of innocence,” “any remote possibility of harm was mitigated
further.” Id. Accordingly, we hold that the two necessary conditions for empaneling an
anonymous jury—protecting the jury from harm and minimizing prejudice to the
accused—were satisfied.
Nonetheless, Appellants argue that empaneling an anonymous jury prejudiced them
and, in support, point to the jury’s inquiry to the district court on the second day of trial.
That day, the jury asked the district judge, “[w]ould it be possible to speak with the Judge
or a member of the safety security regarding an area of concern for jurors’ safety?” J.A.
4939. The jurors’ parking arrangement during trial gave rise to this concern, as they parked
across the street from the courthouse during the trial. While jurors crossed the street,
Appellants’ family members or gang members could see their license plates or follow them.
10
However, the jury raised this issue only after they began hearing the evidence and learning
the nature of the charges and the identity of Appellants, not before they were empaneled as
an anonymous jury. The timing of this concern shows that it bears no relation to the
functioning of an anonymous jury, and Appellants do not provide any evidence to show
otherwise. “Without any evidence to the contrary, we must assume that the jury followed
the instructions [on the presumption of innocence] given to it by the court.” Hager, 721
F.3d at 189. Therefore, we find Appellants’ argument without merit.
B.
Next, Appellants challenge the district judge’s decision not to recuse himself from
presiding over this case. The day before jury selection began, Gilmore moved to recuse
District Judge Frank D. Whitney, citing to the judge’s recusal in an earlier trial of another
UBN member. In that case, Judge Whitney’s picture was found in a defendant’s cell,
leading him to recuse in that case. Gilmore argued that Judge Whitney should do the same
here because recusing himself from one UBN trial and not from the other would be
“inconsistent.” J.A. 1464. The district court disagreed, holding that in the prior case:
an indicted defendant’s cell was searched by the FBI, and there was a picture
of . . . me.
So my picture is found in a cell of a named defendant. I think that’s -
- there’s nothing like that in this case, absolutely nothing. I’ve had no threats
or anything that I’m aware of that have any impact on my ability to adjudicate
this case.
J.A. 1464–65. Furthermore, the court expressed being “nervous about recusing in that case
because I knew it could create this very precedent that I’m going to -- you can get rid of
me by getting my picture,” which, in turn, would encourage “[j]udge shopping.” J.A. 1466.
11
The district court followed up with a written order, reiterating the grounds not to
recuse. The court explained that Gilmore’s case was distinguishable from the previous
UBN case because the judge did not face any similar threats from Appellants, the link
between this case and the previous case was attenuated, no basis for questioning his
impartiality existed, and recusal would inappropriately encourage judge shopping.
On appeal, Appellants argue that the district judge’s decision not to rescue himself
was error, asserting that the judge’s decision would confuse the public and presents
grounds to question his mental state. Reviewing the recusal decision for abuse of discretion,
United States v. Stone, 866 F.3d 219, 229 (4th Cir. 2017), we find none. Appellants do not
provide any basis for us to find the risk of confusing the public or to question the district
judge’s impartiality and mental state, except that he recused himself from an earlier trial of
another UBN member unrelated to the case at bar. But as the judge properly noted, that
case is distinguishable from Appellants’ case because his photo was found in the
defendant’s cell, and there is no comparable evidence here. We therefore conclude that the
district court did not abuse its discretion in denying recusal.
C.
Appellants also assign error to several aspects of the jury selection process. “We
review the district court’s decisions to seat these jurors for abuse of discretion, and we will
find abuse only where a per se rule of disqualification applies or where the trial court
demonstrated a clear disregard for the actual bias of the juror.” United States v. Umana,
12
750 F.3d 320, 338 (4th Cir. 2014) (internal citation, quotation marks, and alterations
omitted). Finding no abuse here, we affirm the district court’s decisions.
1.
Initially, Appellants contend the district court abused its discretion by permitting
the Government to use the term “gang” 4 in describing UBN to prospective jurors, which
unfairly prejudiced the venire against them. But they fail to provide any controlling legal
authority that prohibits the use of this term. On the contrary, we have used the term “gang”
in similar prior decisions involving UBN. See United States v. Melton, 761 F. App’x 171,
172 (4th Cir. 2019) (defining UBN as “an east coast gang”); United States v. Brown, 610
F. App’x 236, 237 (4th Cir. 2015) (labeling UBN a “gang”). Not only is use of the term
“gang” factually accurate and supported by the record, but in the RICO context, that usage
effectively translates the RICO statutory language into terms a non-lawyer jury can readily
comprehend. United States v. Rios, 830 F.3d 403, 423 n.7 (6th Cir. 2016) (holding that in
a RICO conspiracy trial, “use of the term ‘gang’ to describe the Latin Kings and the
Holland Latin Kings was appropriate as the existence of the enterprise and conspiracy was
very much at issue. At a minimum, it was not an abuse of discretion to allow the term to
be used.”). Thus, we do not find any abuse of discretion in permitting the use of the term
“gang.”
2.
4
Counsel for Gutierrez and Gilmore objected to this term in the district court, but
their objection was overruled because Appellants were “admitted gang members.” J.A.
4790.
13
Next, Gilmore points to a jury administrator’s misidentification of two jurors that
occurred during the jury selection process. After fifteen jurors were seated, the district court
and the parties realized that the jury administrator had mistakenly switched the juror
questionnaires of Jurors 33 and 168, identifying the questionnaire of Juror 168 as that of
Juror 33 and vice versa. As a result, defense counsel used the questionnaire of Juror 168 to
strike Juror 33. However, this mistake did not affect any jurors other than Jurors 33 and
168.
Gilmore, later joined by Baxton and Gutierrez, argued that this mistake warranted a
mistrial, asserting that they would not have stricken Juror 33 based on that juror’s actual
responses to the questionnaire. The district court denied the motion, holding that any error
was harmless given that the decision not to seat one juror was not “outcome determinative,”
and Appellants’ argument was speculative. J.A. 4883.
On appeal, Gilmore asserts that the district court abused its discretion by not
declaring a mistrial and restarting the jury selection because she could not verify that only
two jurors had mismatching juror questionnaires, and this mistake tainted the entire process.
That argument is contradicted by the record, which shows that after learning of the mistake,
the district court promptly corrected it, informed the jurors of what occurred, and verified
with each one, including Juror 168, that their juror questionnaires were correctly numbered.
This verification process took place in the presence of Appellants’ counsel, which assured
them that no other mistake had occurred. Moreover, the court cured any prejudice that
might have transpired from this mistake by removing one preemptory strike from the
14
Government. 5 It also granted Appellants an additional preemptory strike and allowed them
to use it against any of the jurors including those already seated. The district court thus did
not abuse its discretion regarding the juror questionnaires.
3.
Appellants also challenge the Government’s preemptory strike of Juror 105, who
indicated on the juror questionnaire that he had “an unpleasant or bad encounter with a law
enforcement officer” because he had been detained and “asked repeatedly if [he] had
weapons.” J.A. 4822. Gilmore objected to striking Juror 105, but the district court
overruled the objection, finding a legitimate reason for the strike. Although Appellants
argue on appeal that this ruling shows the district court’s bias in favor of the Government,
there is no record evidence to support that claim. We have held that the Government may
strike a potential juror based on his “dissatisfact[ory] [experience] with the police,” United
States v. Campbell, 980 F.2d 245, 249 (4th Cir. 1992), because that experience
demonstrates “bias [against] law enforcement officials,” which is “inappropriate,” United
States v. Lancaster, 96 F.3d 734, 743 (4th Cir. 1996).
4.
5
The district court and the parties considered bringing back Juror 33 to the jury pool,
which would have delayed the jury selection process. The Government asserted that
measure was not necessary because if Appellants had not stricken Juror 33, it would have
used a preemptory strike and stricken the juror based on the correct juror questionnaire.
Assuming this had occurred, the Government agreed to relinquish one preemptory strike.
The district court accepted the Government’s concession and decided not to bring back
Juror 33.
15
Lastly, Appellants argue the district court abused its discretion in granting the
Government’s motion to strike Juror 165 but denying the motion to strike Juror 131. The
district court found cause to strike Juror 165 because she did not truthfully disclose her
negative experience with law enforcement in her juror questionnaire and then told the court
that the justice system “doesn’t work.” J.A. 4858–59. In contrast, the court did not find
cause to strike Juror 131 because although he “had some problems with the system, [he]
then made it clear that [he] can follow the law.” J.A. 4860. Juror 131 agreed that “the
system worked,” and did not think “that the system is not fair to some kinds of people in
particular.” J.A. 4861. Thus, Juror 131’s opinion of the criminal justice system differed
substantially from that of Juror 165.
“The trial judge is in the best position to make judgments about the impartiality and
credibility of potential jurors based on the judge’s own evaluations of demeanor evidence
and of responses to questions.” United States v. Barber, 80 F.3d 964, 967 (4th Cir. 1996)
(internal quotation marks omitted). As a district judge “is in the best position to make this
determination, the inquiry [into a potential juror’s bias] is committed to his discretion,
including ample leeway to formulate the questions to be asked.” United States v. Smith,
919 F.3d 825, 834 (4th Cir. 2019). “Just as the trial judge has latitude in framing the inquiry,
so too does he have broad discretion in evaluating the significance of potential juror bias.”
Id. at 835.
Under this deferential standard of review, we hold that the district court did not
abuse its discretion by inquiring into any potential bias of Jurors 131 and 165 or deciding
16
on the motions to strike them. By inquiring of the potential jurors about their experience
with law enforcement and their views on the criminal justice system, the district court was
simply “prob[ing] the prospective jurors for bias and partiality,” Lancaster, 96 F.3d at 742,
and gauging whether they “would be unable to faithfully and impartially apply the law,”
Wainwright v. Witt, 469 U.S. 412, 426 (1985).
Based on the potential jurors’ responses to its questions, the district court granted
the motion to strike Juror 165 because her bias against the criminal justice system
“suggested [she] could not be fair and impartial.” Smith, 919 F.3d at 835. This decision
shows that the court “made reasoned judgments in walking the line between detecting bias
and creating bias. And we are not here to micro-manage those considered choices.” Id. at
834. Accordingly, we hold that the district court did not abuse its discretion in deciding not
to seat Juror165 and to seat Juror 131.
D.
Next, Gilmore challenges the denial of her motion to suppress her cellphone and its
contents. We review the district court’s “legal determinations de novo and factual findings
for clear error. Where, as here, the government prevailed below, we construe the evidence
in the light most favorable to the government.” United States v. Montieth, 662 F.3d 660,
664 (4th Cir. 2011) (internal citation and quotation marks omitted).
In the early morning of August 10, 2011, three UBN members invaded a home in
Raleigh, NC, and shot one person. When the police responded to the shooting, UBN
member Hakim Jacobs fled on foot and contacted Gilmore. Although she did not
17
participate in the actual robbery, Gilmore picked up Jacobs in her car. As they drove away,
two Raleigh Police Department officers, Ross Weatherspoon and Brandon Johnson,
stopped Gilmore’s car and noticed Jacobs in the back seat. Gilmore and Jacobs were
detained for further investigation, and Gilmore’s cellphone was seized.
Before trial, Gilmore moved to suppress the phone and its contents. She argued that
the police did not have reasonable suspicion to stop her and that the cellphone did not
belong to her. A magistrate judge conducted a suppression hearing at which Officer
Weatherspoon testified that he received a radio transmission about the home invasion at
approximately 4:00 a.m. and was given the description of Jacobs, who had fled on foot. To
locate Jacobs, Weatherspoon and Johnson stood on the side of the access roadway to the
neighborhood to check vehicles entering or leaving. The officers spotted Gilmore’s vehicle
as it attempted to exit the neighborhood. Gilmore’s car was the sole vehicle on the road,
and Weatherspoon had not observed any other cars leaving or entering the neighborhood
since setting up the perimeter checkpoint.
Johnson approached the driver’s side of Gilmore’s vehicle and Weatherspoon
approached the passenger side. Weatherspoon saw “a black mass in the back seat of the
vehicle that [he] later identified to be a person,” which “alerted [his] suspicion,” because
“[t]he person who was hiding in the backseat matched the description of the person who
fled.” J.A. 1137–38. The person hiding in the backseat was in fact Jacobs, who the officers
noticed “was nervous,” “was sweating profusely from his forehead at the time,” and “was
breathing heavily.” J.A. 1138.
18
Johnson testified that the officers detained Jacobs and Gilmore for transport to the
police station for further investigation. As standard procedure before transport, the officers
removed all items from Gilmore, including her cellphone. But at the suppression hearing,
the officers could not specifically recall seizing the cellphone because six years had passed
since the seizure. Thus, the Government provided the testimony of other witnesses to
document the seizure and demonstrate Gilmore’s ownership of the phone. FBI Agent
Pupillo testified that Gilmore’s cellphone was transferred to FBI custody, and a search
warrant was executed on that phone. The subsequent examination of the phone “revealed
a connection to the email address ‘cynthiagilmore75’ as well as other self-identifying
information relating to [Gilmore.]” J.A. 1186. Gilmore never reclaimed the phone.
Based on the evidence presented, the magistrate judge recommended denying
Gilmore’s motion to suppress because Weatherspoon and Johnson had reasonable
suspicion to stop her vehicle, had probable cause to arrest her, and lawfully seized her
cellphone incident to the arrest. Gilmore objected to the report and recommendation, but
the district court overruled her objection and adopted it. On appeal, Gilmore contends that
the stop of her vehicle was illegal and no evidence shows her ownership of the cellphone.
We disagree.
Under Fourth Amendment caselaw, “an officer may conduct a brief
investigatory stop where the officer has reasonable suspicion that criminal activity may be
afoot.” United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004). We assess the validity
of a stop based on “the totality of the circumstances” and “give due weight to common
19
sense judgments reached by officers in light of their experience and training.” Id. Here, the
totality of the circumstances supports the officers’ reasonable suspicion to stop Gilmore’s
vehicle. Approximately twenty minutes after Jacobs fled on foot, the police noticed
Gilmore driving away from the neighborhood where the robbery occurred. At the time of
the stop, Gilmore’s car was the only car on the road. Once the stop lawfully took place, the
officers immediately noticed Jacobs in the back seat of Gilmore’s car and realized that he
was the fleeing suspect. This gave the officers probable cause to arrest Gilmore and Jacobs.
See United States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010) (holding a warrantless
arrest is permissible if “there is probable cause to believe that a criminal offense has been
or is being committed. . . . [P]robable cause exists when, at the time the arrest occurs, the
facts and circumstances within the officer’s knowledge would warrant the belief of a
prudent person that the arrestee had committed or was committing an offense.” (internal
citation omitted)).
After the officers arrested Gilmore, they properly searched her and seized the
cellphone incident to her arrest. This seizure was lawful under the Fourth Amendment,
which “permits warrantless searches incident to custodial arrests.” United States v.
Edwards, 415 U.S. 800, 802 (1974). “Nor is there any doubt that clothing or other
belongings may be seized upon arrival of the accused at the place of detention and later
subjected to laboratory analysis or that the test results are admissible at trial.” Id. at 803–
04.
20
Despite this straightforward application of Fourth Amendment principles, Gilmore
argues that the cellphone and its contents were inappropriately admitted into evidence
because there was insufficient evidence to authenticate it as hers. The record shows
otherwise. Under Rule 901(a) of the Federal Rules of Evidence, “[t]o satisfy the
requirement of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims
it is.” “The factual determination of whether evidence is that which the proponent claims
is ultimately reserved for the jury. . . . [And] [t]he burden to authenticate under Rule 901 is
not high—only a prima facie showing is required.” United States v. Vidacak, 553 F.3d 344,
349 (4th Cir. 2009). Here, the Government made the required prima facie showing.
Detective Eric Gibney, who investigated the home invasion and shooting, interviewed
Gilmore during the investigation and identified the cellphone during the suppression
hearing. Gibney testified that he contemporaneously placed a yellow sticky note with
Gilmore’s name on her cellphone and that the Government’s picture of the cellphone was
accurate. In addition, Detective Michael Sardelis, who examined the cellphone, stated that
the phone was registered with the email account Cynthiayounggilmore@yahoo.com,
multiple messages called the owner “Cynt,” and the owner of the phone’s birthdate
matched that of Gilmore. Given this evidence, we hold that the Government properly
21
authenticated the phone and its contents, and the district court did not err in admitting them
into evidence. The district court thus properly denied Gilmore’s motion to suppress. 6
E.
Appellants argue the evidence was insufficient to support the jury’s finding that they
were each guilty of conspiracy to participate in a racketeering enterprise, in violation of 18
U.S.C. § 1962(d). To convict, the Government had to prove:
that an enterprise affecting interstate commerce existed; that each defendant
knowingly and intentionally agreed with another person to conduct or
participate in the affairs of the enterprise; and that each defendant knowingly
and willfully agreed that he or some other member of the conspiracy would
commit at least two racketeering acts.
United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (internal quotation marks and
alteration omitted). We must sustain a jury verdict “when there is substantial evidence,
construed in the light most favorable to the government, supporting the verdict.” Mathis,
932 F.3d at 258.
6
In addition, Gilmore challenges two evidentiary rulings, which we review for
abuse of discretion. United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014). She first
argues that the court erroneously excluded the 22-year-old misdemeanor criminal record
(as a minor) of an FBI agent who testified for the Government. We disagree. The record
was not admissible under Rule 609(b) of the Federal Rules of Evidence because “more
than 10 years ha[d] passed since the witness’s conviction” and its probative value did not
substantially outweigh its prejudicial effect. Fed. R. Evid. 609(b).
Next, Gilmore argues that Crawford v. Washington, 541 U.S. 36 (2004), barred the
admission of various witnesses’ testimony, documents, and emails because they contain
hearsay information. We have reviewed the record and hold that Crawford does not apply
here because none of the challenged evidence is testimonial. Whorton v. Bockting, 549 U.S.
406, 420 (2007) (“Under Crawford, . . . the Confrontation Clause has no application to
[nontestimonial out-of-court] statements and therefore permits their admission even if they
lack indicia of reliability.”). Accordingly, the district court did not abuse its discretion in
rejecting Gilmore’s Crawford argument.
22
At trial, the Government presented numerous former and current UBN members
who testified as to Appellants’ leadership authority in UBN and directives to them to
engage in criminal racketeering activities. The Government also submitted the call records
and text messages between Appellants and other UBN members showing Appellants’
threats, warnings, and directives, as well as evidence of criminal activities, such as gang
dues derived from drug trafficking and paid into Gutierrez’s and Baxton’s prison
commissary accounts.
On appeal, Appellants challenge an extensive list of the foregoing evidence
presented during trial. In essence, they argue either that the evidence did not connect them
directly to the criminal activities committed by other UBN members or that they simply
did not direct or participate in the alleged criminal activities, including murder, drug
trafficking, tax and wire fraud, and robbery. The record does not bear out Appellants’
claims.
As the party “challenging on appeal the sufficiency of the evidence,” Appellants
“bear[] a ‘heavy burden,’ and must show that a rational trier of fact could not have found
the essential elements of the crime beyond a reasonable doubt. A conviction will be
reversed for insufficient evidence only in the rare case when ‘the prosecution’s failure is
clear.’” United States v. Hamilton, 699 F.3d 356, 361–62 (4th Cir. 2012) (internal citations
omitted).
Appellants fail to meet their heavy burden because their argument does not show a
clear prosecutorial failure, but mere disagreement with the jury’s findings. “[A]ny recalling
23
of the facts by [Appellants] or any inferences drawn from the evidence or suggestions of
inferences by [Appellants] were not binding upon the jury” because “the jury was the final
arbiter of the facts.” United States v. Browning, 390 F.2d 511, 514 (4th Cir. 1968) (internal
quotation marks omitted). As the record shows substantial evidence supporting the jury
verdict, we discern no error in the sufficiency of the evidence.
F.
Appellants also contend the district court erred in not issuing a special jury verdict
form that would require the jury to indicate specific racketeering activities each Appellant
conspired to commit. As the district court explained when denying the request, this form
would have required “enumerat[ing] . . . 50 racketeering predicate acts and they check off
the ones they find[.]” J.A. 3442. The district court concluded this request was unnecessary
because “the vast majority of courts just have a general verdict form. . . . [A] special verdict
form requiring enumerating the predicate acts could be very, very confusing for the jury in
this case because of the . . . expansiveness of the criminal acts up and down the Eastern
Seaboard.” J.A. 3443. Instead, “[t]he important thing is that jurors are told that their
decision has to be unanimous.” J.A. 3443.
We have previously observed, “as a general matter, there has been a presumption
against special verdicts in criminal cases. [And] whether to use a special verdict form is a
matter of the district court’s discretion.” Udeozor, 515 F.3d at 271 (citations and internal
quotation marks omitted) (alteration in original). Here, the district court exercised its
discretion and chose not to use a special verdict form but instead to instruct the jury that its
24
“verdict must be unanimous as to which type or types of predicate racketeering activity
[Appellants] agreed would be committed.” J.A. 3535. This decision was consistent with
our precedent that holds, “for a RICO conspiracy charge the jury need only be unanimous
as to the types of racketeering acts that the defendants agreed to commit. . . . [N]o
instruction as to the commission of specific acts was required.” United States v. Cornell,
780 F.3d 616, 625 (4th Cir. 2015). Therefore, the district court did not abuse its discretion
in refusing to issue a special jury verdict form.
G.
Gilmore separately appeals two district court decisions on jury instructions: (1) the
court’s denial of her request to issue a statute-of-limitation instruction and (2) the decision
to instruct the jury on two federal crimes in connection with her tax fraud scheme. First,
she challenges the district court’s denial of her request for a statute-of-limitation instruction.
She contends that she withdrew from the RICO conspiracy and that based on her
withdrawal, the statute of limitations had expired.
“Upon joining a criminal conspiracy, a defendant’s membership in the ongoing
unlawful scheme continues until [s]he withdraws. A defendant who withdraws outside the
relevant statute-of-limitations period has a complete defense to prosecution.” Smith v.
United States, 568 U.S. 106, 107 (2013). “Establishing individual withdrawal was a burden
that rested firmly on the defendant regardless of when the purported withdrawal took place.”
Id. at 110.
25
In the district court, Gilmore argued that she withdrew from the RICO conspiracy
by becoming an inactive UBN member. To support her argument, she pointed to her
statement to the arresting FBI agent, “I’m a Blood, but I haven’t done anything in a while.”
J.A. 2620. The court disagreed with Gilmore’s contention, holding that her conduct did
not show “affirmative withdrawal from the conspiracy,” J.A. 3446, and “there is really no
evidence whatsoever of withdrawal,” J.A. 3447. For that reason, it rejected Gilmore’s
request to instruct the jury on the question of her withdrawal.
“[W]e review a district court’s refusal to give a jury instruction for abuse of
discretion,” Mouzone, 687 F.3d at 217 (citation omitted), and conclude that the district
court did not abuse its discretion in deciding that Gilmore had not come forward with
evidence to support giving an instruction about withdrawal. Her claim of inactive UBN
membership does not constitute withdrawal because “[o]nce it is proven that a defendant
was a member of the conspiracy, the defendant’s membership in the conspiracy is
presumed to continue until he withdraws from the conspiracy by affirmative action.”
Cornell, 780 F.3d at 632 (internal quotation marks omitted). Because Gilmore proffered
no affirmative acts of withdrawal and pointed solely to her statement to the arresting officer
to support her contention, the district court properly found that her participation in the
RICO scheme continued.
Next, Gilmore challenges the jury instruction on identity theft, in violation of 18
U.S.C. § 1028, and bank fraud, in violation of 18 U.S.C. § 1344. The district court
instructed the jury to consider these two crimes in connection with the tax fraud scheme in
26
which she engaged. The evidence at trial showed that in 2010 and 2011, Gilmore provided
stolen personal information, such as names, social-security numbers, and dates of birth, to
Margo Lewis. Using the information provided, Lewis electronically filed fraudulent tax
returns and directed tax refunds to be deposited in bank accounts designated by Gilmore.
In the district court, Gilmore contended that the jury instruction was erroneous
because the fraud scheme could not violate more than one criminal statute and must be
tried under the bank fraud statute only. The court rejected the argument because the same
acts could violate more than one criminal statute. See United States v. Batchelder, 442 U.S.
114, 123–24 (1979). On appeal, however, Gilmore makes a new claim that bank fraud and
identity theft do not constitute “racketeering activity” as defined in 18 U.S.C. § 1961(1).
Because this is a new argument Gilmore did not raise in the district court, we review it for
plain error. Carthorne, 726 F.3d at 510.
We find no error here (plain or otherwise) because the relevant statutory definitions
do not support Gilmore’s argument. The RICO statute explicitly defines “racketeering
activity” to include “any act which is indictable under . . . section 1028 (relating to fraud
and related activity in connection with identification documents) . . . [and] section 1344
(relating to financial institution fraud),” 18 U.S.C. § 1961(1)(B), thereby covering bank
27
fraud and identity theft. Accordingly, we hold that the district court properly instructed the
jury. 7
H.
After the jury verdict, Gilmore moved for a new trial. She argued in the district court
that she was not a member of UBN because some of the Nine Trey members who testified
during trial did not identify her as a co-conspirator and the evidence failed to connect her
to the crimes charged. The district court denied her motion, and Gilmore appeals this
decision.
“The decision to grant or deny a motion for a new trial is within the broad discretion
of the district court.” United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004). “Such
motions should be awarded[] sparingly, as a jury verdict is not to be overturned except in
the rare circumstance when the evidence weighs heavily against it.” United States v. Wilson,
624 F.3d 640, 660 (4th Cir. 2010) (internal quotation marks omitted).
Gilmore does not present such a “rare circumstance,” as abundant evidence supports
her conviction. She identified herself as a “Blood member” to the arresting officer, and
several witnesses testified extensively to her membership and criminal gang activities. For
instance, a Nine Trey member, Quincy Burrell, identified Gilmore as “a Nine Trey
7
Similarly without merit is Gilmore’s challenge of the district court’s refusal to
instruct the jury that it must find the racketeering activity “substantially” affected interstate
commerce. J.A. 3476. The court denied this request because that element was inapplicable
here. Gilmore argues on appeal the exclusion of the “substantial” modifier from the jury
instruction was error, but this argument contradicts our established precedent. We disagree
because “a de minimis effect on interstate commerce is all that was required to
satisfy RICO’s commerce element.” Cornell, 780 F.3d at 621.
28
member,” J.A. 2355, and testified that they engaged in drug trafficking. J.A. 2357–58
(testifying that he and Gilmore engaged in a “test run” of “selling drugs” and that “[he]
gave Cynthia seven grams of heroin. . . . She gave [him] $200[.]”). Further, Lewis testified
that she committed tax fraud under the direction of “Cynt.” J.A. 2636. Based on this
evidence, we reject Gilmore’s contention.
I.
Gutierrez and Baxton contend that insufficient evidence supports the jury’s civil
forfeiture findings. After the jury rendered a verdict finding Baxton and Gutierrez guilty,
the Government moved for forfeiture of commissary funds Baxton and Gutierrez received
from certain UBN members or derived from racketeering activities. The district court
instructed the jury to decide whether to forfeit the $6,767.03 seized from Gutierrez’s prison
commissary account and the $9,268.15 seized from Baxton’s prison commissary account.
The jury found that Gutierrez and Baxton derived those proceeds from racketeering
activities in violation of § 1962 8 and those proceeds afforded them a source of influence
over the racketeering enterprise they controlled.
As discussed, we will not overturn the jury’s verdict unless
the prosecution’s failure is clear. That is, the jury’s verdict must be upheld on
appeal if there is substantial evidence in the record to support it. We have
defined substantial evidence as evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defendant’s
8
Section 1962 states, in relevant part, “[i]t shall be unlawful for any person who has
received any income derived, directly or indirectly, from a pattern of racketeering activity
or through collection of an unlawful debt in which such person has participated as a
principal within the meaning of [RICO] . . . .” 18 U.S.C. § 1962(a).
29
guilt beyond a reasonable doubt. In evaluating an issue of evidence
sufficiency, we view the evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the government.
United States v. Farrell, 921 F.3d 116, 136 (4th Cir. 2019) (internal quotation marks,
citations, and alteration omitted omitted). This standard imposes a heavy burden on
Gutierrez and Baxton, which they have not met.
The commissary funds were forfeited pursuant to § 1963(a)(3), which requires
forfeiture of “any property constituting, or derived from, any proceeds which the person
obtained, directly or indirectly, from racketeering activity or unlawful debt collection in
violation of [§] 1962.” Substantial evidence shows that these funds qualify as proceeds
prohibited under § 1963(a)(3) because they were gang dues from UBN members or gains
from criminal activities, such as robbery and drug trafficking, in violation of § 1962.
Accordingly, we affirm the jury’s forfeiture verdict.
J.
Appellants also contend their respective sentences were procedurally and
substantively unreasonable. In reviewing a sentence, this Court first must ensure that the
sentences are procedurally sound and, if they are, then must consider whether they are
substantively reasonable. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019).
We review the district “court’s factual findings for clear error and its legal conclusions de
novo.” United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018).
Appellants contend that the district court committed procedural error by improperly
calculating their base offense levels. In a RICO case the base offense level is the greater of
30
19 or “the offense level applicable to the underlying racketeering activity.” U.S.S.G.
§ 2E1.1(a). If a defendant has committed multiple underlying racketeering activities, the
court should then “treat each underlying offense as if contained in a separate count of
conviction.” Id. cmt. n.1.
Here, the jury did not specify the underlying racketeering offenses for Appellants’
RICO convictions. Instead, the district court separately determined the applicable offenses
as follows: for Gutierrez, conspiracy or solicitation to commit murder resulting in a base
offense level of 33; for Baxton, drug trafficking in an amount totaling at least 1,600
kilograms resulting in a base offense level of 30; and for Gilmore, robbery resulting in a
base offense level of 20. Appellants argue that these determinations were erroneous
because the district court lacked sufficient evidence to find that Appellants committed any
of the underlying offenses.
We reject this contention because, as the district court articulated, the Government
presented ample evidence during the jury trial and the sentencing hearings that Appellants
engaged in the attributed underlying racketeering activities. J.A. 4026–27 (the
Government’s summary of a UBN member’s testimony that he sold drugs to pay dues to
Baxton); J.A. 4102 (finding Baxton engaged in “smuggling contraband in the prisons now
– drugs”); J.A. 4143 (concluding the Government showed by “a preponderance of the
evidence” Gutierrez’s order to murder a rival gang member); J.A. 4335–37 (finding by a
preponderance of the evidence that Gilmore was involved in the robbery and discussing
supporting evidence).
31
Alternatively, Appellants assert that even if such evidence existed in the record, the
court erred because it made its findings by a preponderance of the evidence instead of
beyond a reasonable doubt. We disagree. In making its findings, the district court was not
required to apply the reasonable doubt standard but properly used the preponderance of
evidence standard. See Mouzone, 687 F.3d at 220. Our precedent has repeatedly reviewed
and affirmed rulings in which the district court used that standard to make findings that
were challenged on appeal.
For example, we affirmed in Mouzone the district court’s finding by a
preponderance of the evidence that a defendant committed murder and its decision to use
the offense of murder in calculating a base offense level. In Mouzone, the jury had
convicted the defendant of a RICO conspiracy, finding that distribution of narcotics and
robbery were the conspiracy objectives. But the jury specifically “declined to find that
murder or conspiracy to commit murder was a conspiracy objective.” Id. at 212. Despite
the jury’s finding, at sentencing, the district court determined that the defendant “‘more
likely than not’” committed murder and applied the offense level applicable to murder as
the defendant’s base offense level. Id. at 220. On appeal, the defendant argued that the
district court lacked sufficient evidence to make this finding and erred in treating murder
as an underlying racketeering activity. We rejected this argument and upheld the district
court’s determination of the base offense level because the Government presented ample
evidence at trial under a preponderance standard that the defendant committed the crime.
We further held that, “while we recognize that the jury declined to find that [the defendant]
32
murdered [the victim], we also affirm the district court’s entitlement to make its own
findings, supported by a preponderance of the evidence, regarding [the defendant’s]
offenses for sentencing purposes.” Id.; see United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008) (“Sentencing judges may find facts relevant to determining a Guidelines
range by a preponderance of the evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by the jury’s verdict.”).
Similarly, in United States v. Zelaya, we affirmed the sentence when, in calculating
the defendant’s base offense level, the district court made findings by a preponderance of
the evidence as to a predicate racketeering act independently of the jury verdict. 908 F.3d
920, 930–31 (4th Cir. 2018). There, the defendant was a member of a gang and participated
in drug trafficking, robberies, and gang-related gunfights. Id at 924. After trial, a jury
convicted the defendant of a RICO conspiracy in a general verdict that did not specify
predicate racketeering activities. Despite this lack of specific findings for predicate acts,
the district court found by a preponderance of the evidence that, as part of the RICO
conspiracy, the defendant attempted to commit murder by participating in a gang shooting
and used the offense level applicable to the crime of attempted murder in calculating his
base offense level. Id. at 930–31.
We affirmed on appeal, holding that the defendant’s participation in “[t]he shooting
was within the scope of [the gang’s] criminal activities, in furtherance of them, and
reasonably foreseeable in light of them, so it constituted a crime committed as part of the
conspiracy.” Id. at 931 (citing U.S.S.G. § 1B1.2(a)(1)(B)). In affirming the court’s
33
sentencing determinations, we did not question the district court’s established authority to
make its sentencing findings by a preponderance of the evidence in determining the base
offense level. In light of our established case law, the district court here properly made its
sentencing findings “by a preponderance of the evidence,” and held, “[t]he jury doesn’t
have anything to do with what I decide today.” J.A. 4041.
By arguing that the district court erred in using the preponderance standard during
sentence, Appellants ignore our precedent and instead rely on a single out-of-circuit
decision, United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001). In that case, the
Eleventh Circuit held that when “the jury verdict was ambiguous as to which acts supported
the conspiracy conviction,” “[t]he [district] court was . . . required to determine the
predicate acts underlying each defendant’s conspiracy conviction using the reasonable
doubt standard.” Id. at 1341-42. The court reached this conclusion based on Comment 4 to
U.S.S.G. § 1B1.2(d), which notes, when a guilty verdict “does not establish which
offense(s) was the object of the conspiracy,” a defendant should be sentenced based on an
offense that was the object of the conspiracy “if the court, were it sitting as a trier of fact,
would convict the defendant of conspiring to commit that object offense.” U.S.S.G. §
1B1.2(d) cmt. 4.; see Nguyen, 255 F.3d at 1341–42.
As the Seventh Circuit has noted, however, “every other circuit to consider th[is]
question” has rejected the Eleventh Circuit’s approach. United States v. Garcia, 754 F.3d
460, 482 (7th Cir. 2014) (citing United States v. Massino, 546 F.3d 123, 135 (2d Cir. 2008);
United States v. Corrado, 227 F.3d 528, 541–42 (6th Cir. 2000); United States v. Carrozza,
34
4 F.3d 70, 79–80 (1st Cir. 1993)). The Garcia court explained that the object of a RICO
conspiracy is “to engage in racketeering,” not to commit each predicate racketeering act.
Id. Furthermore, the court held that making specific findings as to each underlying
racketeering offense under U.S.S.G. § 1B1.2(d) would conflict with U.S.S.G. § 2E1.1(a)(2),
which specifically governs the RICO sentencing scheme.
As the Garcia court elaborated,
RICO conspiracies are of the single-object variety, with the object being to
engage in racketeering. The predicate racketeering acts are not, in themselves,
conspiratorial objects.
We have understood RICO conspiracies in the same way as the
majority of our sister circuits—that is, as arrangements devoted to a single
objective. Consistently with that view, we now hold that § 1B1.2(d) does not
apply to RICO conspiracies. We note that this position has the virtue of fitting
better with the RICO guideline, § 2E1.1(a)(2), which calls for replacing the
RICO baseline of 19 with the level applicable to the most serious underlying
conduct if that offense level would be higher. That would make little sense
if the underlying conduct had to be treated as separate counts.
Id. at 482–83 (internal citations omitted).
This holding in Garcia is in accord with our cases, including Mouzone and Zelaya,
in which district courts determined by a preponderance of the evidence defendants’ most
serious racketeering activities and used the offense levels applicable to those activities as
the base offense levels under § 2E1.1(a)(2). Lest there be any doubt going forward, we now
join the overwhelming majority of our sister circuits in specifically holding that the
preponderance standard is the appropriate standard for sentencing determinations in a
RICO conspiracy—that is, a sentencing court may make sentencing findings by a
35
preponderance of the evidence under U.S.S.G. § 2E1.1(a). Accordingly, the district court
here used the proper standard to determine the base offense level.
Lastly, Appellants challenge their sentences as generally being procedurally and
substantively unreasonable. We first examine whether their sentences are procedurally
reasonable and hold that they are. Our review shows that the sentencing court did not
commit any procedural error, such as, “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 (internal quotation marks omitted).
The district court considered each Appellant’s criminal and personal history,
criminal conduct, objections to certain sentencing enhancements, and the evidence
presented during the trial and the sentencing hearings. After careful consideration, it
overruled most objections to the enhancements, articulated its findings as to Appellants’
relevant criminal conduct and supporting reasons, and determined a sentence for each
Appellant. With respect to Gutierrez, the court calculated his Guidelines range to be from
360 months to life imprisonment but sentenced him to 240 months’ imprisonment because
that was the RICO statutory maximum sentence. Baxton’s Guidelines range was also 360
months to life imprisonment, but he likewise was sentenced to 240 months’ imprisonment.
As to Gilmore, her sentencing calculation resulted in a Guidelines range of 210 to 240
months’ imprisonment, and the court sentenced her to 228 months in prison.
36
Based on the district court’s thorough explanations, we are satisfied that it made “an
individualized assessment based on the facts presented and . . . state[d] in open court the
particular reasons supporting its chosen sentence.” Provance, 944 F.3d at 218 (internal
quotation marks omitted). It also “address[ed] the parties’ nonfrivolous arguments in favor
of a particular sentence, and . . . explain[ed] why in a sufficiently detailed manner to allow
this Court to conduct a meaningful appellate review.” Id. (internal quotation marks
omitted). “In doing so, the sentencing judge . . . set forth enough to satisfy [us] that he has
considered the parties’ arguments and has a reasoned basis for exercising his own legal
decision-making authority.” Id. (internal quotation marks omitted).
Finding no procedural error, we then review the substantive reasonableness of
Appellants’ sentences “for abuse of discretion only.” United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). We start with a presumption that Appellants’ sentences are
reasonable because each is below or within a properly calculated Guidelines range. See id.“Such a presumption can only be rebutted by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” Id. Appellants do not make this
showing because their arguments present nothing more than their disagreements with the
district court’s factual findings and legal conclusions, which do not show that their
sentences are unreasonable when measured against the § 3553(a) factors. Accordingly, we
hold the respective sentences are procedurally and substantively reasonable and affirm each
sentence.
37
III.
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 in the
decisional process. The judgment of the district court is
AFFIRMED.
38