United States v. Mark Baker , 598 F. App'x 165 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4472
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK WILLIAM BAKER, a/k/a Lightning,
Defendant - Appellant.
No. 13-4473
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID CHANNING OILER, a/k/a Gravel Dave,
Defendant - Appellant.
No. 13-4474
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE JAMES LONG, a/k/a Bruce Bruce,
Defendant - Appellant.
No. 13-4532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS HERNANDEZ,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Cameron McGowan Currie,
District Judge. (3:12-cr-00430-CMC-2; 3:12-cr-00430-CMC-3;
3:12-cr-00430-CMC-4; 3:12-cr-00430-CMC-13)
Argued: December 11, 2014 Decided: February 25, 2015
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C.,
Greenville, South Carolina; William Michael Duncan, AUSTIN &
ROGERS, PA, Columbia, South Carolina; Cameron Bruce Littlejohn,
Jr., Columbia, South Carolina, for Appellants. Julius Ness
Richardson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: John D. Delgado,
BLUESTEIN & NICHOLS, LLC, Columbia, South Carolina, for
Appellant Baker. William N. Nettles, United States Attorney,
James H. May, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
2
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
In 2012, a federal grand jury issued a 107-count
superseding indictment against twenty individuals affiliated
with the Rock Hell City Nomad Chapter of the Hells Angels (“the
Chapter”). This consolidated appeal challenges the convictions
and sentences of four of those individuals. For the reasons set
forth below, we affirm the judgment of the district court.
I.
The Federal Bureau of Investigation participated in a two-
year interagency investigation of several motorcycle gangs
operating in and around Rock Hill, South Carolina. That
investigation revealed the Chapter was a motorcycle gang
affiliated with its nationwide counterpart, had a chapter house
where local meetings took place, had a hierarchy of leadership
and membership, and required its members to pay dues. 1 The
investigation revealed that, unlike purely recreational
motorcycle clubs, many individuals in the Chapter also engaged
in numerous criminal activities.
1
The Chapter’s hierarchy included officers, as well as
“full patch” members who are senior to “prospects.” Chapter
members referred to their meetings as “church” and paid “tithe”
to the Chapter.
4
In the spring of 2011, Joe Dillulio began cooperating with
the FBI investigation. Dillulio, a convicted felon originally
from New York, operated a jewelry store in the Rock Hill area.
Based in part on his criminal background, Dillulio gained the
trust of the Chapter through its then-president Dan Bifield. 2
Dillulio allowed the FBI to set up surveillance and recording
equipment in his store and on his telephone. He then began
purchasing narcotics and firearms in controlled buys from
individuals affiliated with the Chapter. As part of the
firearms purchases, Dillulio represented that he was sending the
firearms to compatriots in New York who would use the weapons in
drug robberies, then sell the drugs and launder the proceeds
back through him and conspirators inside the Chapter.
The superseding indictment charged that the Chapter was a
criminal “enterprise” and that its full-patch members,
prospects, and associates operated through a pattern of
racketeering, in violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68.
Individuals charged in the superseding indictment were Chapter
officers, as well as full-patch members and prospects, members
of another local motorcycle gang (the Southern Gentlemen),
2
Bifield was also named in the superseding indictment. He
later pleaded guilty to the RICO conspiracy charged in Count 1
and is not a party to this appeal.
5
members of the Red Devils (a “support group” for the Hells
Angels), and other associates.
Mark Baker was not only a full-patch member of the Chapter,
but he assumed the role of president during the relevant period
of the charged crimes. David Oiler and Bruce Long were also
full-patch members. Baker, Oiler, and Long were tried together
along with two other co-conspirators whose cases are not before
us. A jury convicted each of them of conspiracy to violate
RICO, in violation of 18 U.S.C. § 1962, (Count 2 or “RICO
conspiracy”); conspiracy to possess with intent to distribute
and distribute five kilograms or more of a mixture and a
substance containing cocaine, 50 grams or more of actual
methamphetamine, 500 grams or more of a mixture of and substance
containing methamphetamine, as well as several prescription
medications (oxycodone, hydrocodone, and clonazepam), in
violation of 21 U.S.C. §§ 841 and 846, (Count 3 or the
“narcotics conspiracy”); and money laundering, in violation of
18 U.S.C. § 1856(a)(3)(B) (Counts 49, 50, and 55, respectively).
In addition, Oiler was convicted of seven counts of narcotics
distribution, four counts of attempted narcotics distribution,
one count of possession of a firearm in furtherance of drug
trafficking, and one count of possession of a machine gun and
silencer. Long was also convicted of seven counts of narcotics
distribution, one count of attempted narcotics distribution, and
6
one count of transfer of a firearm. While each man raises
various challenges to his convictions, none challenges his
respective sentence.
Carlos Hernandez was not a member of the Chapter, but was
an acquaintance of several members and associates. The
superseding indictment named Carlos Hernandez in only one count,
as a participant in the Count 3 narcotics conspiracy. He was
tried separately and convicted. He does not challenge his
conviction; instead, he contends there was reversible procedural
error in his sentencing.
Additional details related to each issue raised on appeal
are discussed in context below. Baker, Oiler, Long, and
Hernandez each noted timely appeals, and the Court has
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
A.
Baker, Oiler, and Long raise three issues jointly. They
allege the district court abused its discretion in refusing to
instruct the jury (1) on an entrapment defense and (2) about
multiple conspiracies as an alternative to the charged narcotics
conspiracy. They also contend the record contains insufficient
evidence of a pattern or continuity to support their convictions
for participating in a RICO conspiracy.
7
1.
Baker, Oiler, and Long first challenge the district court’s
refusal to instruct the jury on the defense of entrapment. They
argue that they were entitled to the instruction because,
contrary to the court’s conclusion, the record contains more
than a scintilla of evidence that Dillulio induced them to
participate in the charged offenses.
“Entrapment is an affirmative defense consisting of ‘two
related elements: government inducement of the crime, and a lack
of predisposition on the part of the defendant to engage in the
criminal conduct.’” United States v. McLaurin, 764 F.3d 372,
379 (4th Cir. 2014) (quoting Matthews v. United States, 485 U.S.
58, 63 (1988)). “The district court is the gatekeeper; if the
defendant does not produce more than a mere scintilla of
evidence of entrapment, the court need not give the
instruction.” United States v. Hackley, 662 F.3d 671, 681 (4th
Cir. 2011) (internal quotation marks omitted). An appellate
court reviews de novo a defendant’s claim that the jury
instructions incorrectly stated the law, which includes a
district court’s refusal to instruct a jury regarding the
defense of entrapment. United States v. Ramos, 462 F.3d 329,
334 (4th Cir. 2006).
In the context of entrapment, “inducement” is a term of art
requiring evidence that the Government “overreach[ed] and
8
[engaged in] conduct sufficiently excessive to implant a
criminal design in the mind of an otherwise innocent party.”
United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).
“[S]olicitation of the crime alone is not sufficient to grant
the instruction, as that is not the kind of conduct that would
persuade an otherwise innocent person to commit a crime.”
Ramos, 462 U.S. at 334 (internal quotation marks omitted).
Instead, the evidence must demonstrate “excessive behavior on
the part of the government that could be said to be so inducive
to a reasonably firm person as likely to displace mens rea.”
United States v. DeVore, 423 F.2d 1069, 1072 (4th Cir. 1970).
Although they each rely on their individual circumstances
to bolster their arguments, Baker, Oiler, and Long collectively
point to Dillulio’s promises of money as evidence suggesting he
crossed the line to unlawfully inducing their criminal behavior.
They claim that Dillulio lured them into criminal activity by
building a relationship with them and giving them more and more
money, all while regaling them with tales of his own financial
profit. In addition, they contend that Dillulio shrewdly
adopted whatever persona he needed in order to empathize with
and gain the trust of his current target. And they contend that
once he had “set the financial hook,” he introduced larger and
larger schemes to fortify each man’s participation.
9
We disagree with Baker, Oiler, and Long. Mentioning the
prototypical motivation for crimes of the sort with which they
were charged – financial profit – is not on its own sufficient
to create a question of whether inducement existed. See United
States v. Sanches-Berrios, 424 F.3d 65, 76-77 (1st Cir. 2005)
(“The only inducement that the record reflects is the chance to
make money — and holding out the prospect of illicit gain is not
the sort of government inducement that can pave the way for an
entrapment defense.”); see also United States v. Spentz, 653
F.3d 815, 818-20 (9th Cir. 2011) (same); United States v.
Layeni, 90 F.3d 514, 518 n.2 (7th Cir. 1996) (same); United
States v. McKinley, 70 F.3d 1307, 1313-14 (D.C. Cir. 1995)
(same). There is no evidence in the record that Dillulio ever
engaged in coercive, baiting methods of persuasion that preyed
on Baker, Oiler, or Long’s particular sympathies or financial
vulnerabilities. Contrast United States v. Kessee, 992 F.2d
1001, 1003-04 (9th Cir. 1993) (holding entrapment instruction
appropriate where government agent “flashed a roll of hundred
dollar bills” and repeatedly pressured defendant to sell drugs
in order to earn money for a period of time after the defendant
lost both of his jobs and expressed concern to the agent about
“where he would get the money for rent and food for his
family”). Indeed, there is no evidence that Dillulio was aware
10
of any financial difficulties on the part of Baker, Oiler, or
Long.
On this record, we are left with the firm belief that
Dillulio “‘merely offer[ed] an opportunity to commit the
crime[s],’” an act that is not sufficient for a reasonable jury
to conclude that he unlawfully induced “the participation of”
Baker, Oiler, or Long. Ramos, 462 U.S. at 335 (quoting United
States v. Harrison, 37 F.3d 133, 136 (4th Cir. 1994)).
Accordingly, the district court did not err in refusing to
instruct the jury on entrapment. 3 Matthews, 485 U.S. at 62(holding that a defendant is only entitled to an entrapment
instruction when “there is sufficient evidence from which a
reasonable jury could find entrapment”).
2.
Baker, Oiler, and Long also assert the district court
abused its discretion by refusing to give the jury a multiple-
conspiracies instruction pointing out that the evidence might
show they participated in different conspiracies as opposed to
the single overarching narcotics conspiracy charged in Count 3.
3
The district court only addressed the inducement prong of
the offense, and because we agree with its analysis on that
issue, we do not address the separate factor of predisposition
either.
11
They argue that such an instruction was appropriate because the
evidence suggests separate agreements between Dillulio and each
of them individually during discrete time frames rather than
participation in the charged narcotics conspiracy.
A multiple-conspiracies instruction informs the jury that
it must acquit a defendant who has not participated in the
conspiracy charged even if there is evidence that he
participated in a different, uncharged conspiracy. United
States v. Toro, 840 F.2d 1221, 1236 (5th Cir. 1988). The
purpose of a multiple-conspiracies instruction is to avoid jury
confusion and the risk that it will “imput[e] guilt to [the
defendant] as a member of one conspiracy because of the illegal
activity of members of [an]other conspiracy.” United States v.
Roberts, 262 F.3d 286, 294 (4th Cir. 2001). But it is also
well-established that conspirators need not know “all of the
details of the conspiracy.” Hackley, 552 F.3d at 679 (quoting
United States v. Goldman, 750 F.2d 1221, 1227 (4th Cir. 1984)).
The Government can prove a single conspiracy by direct or
circumstantial evidence that a defendant knew its “essential
object” by demonstrating a “tacit or mutual understanding”
between the defendants and other conspirators even where the
connection is slight. Id. For that reason, we have held that
such multiple-conspiracy instructions are “not required unless
the proof at trial demonstrates that [a defendant was] involved
12
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) (internal
quotation marks omitted).
We review the district court’s decision for abuse of
discretion. United States v. Jeffers, 570 F.3d 557, 566 (4th
Cir. 2009). The Court will only find that the refusal to give a
multiple-conspiracies instruction is reversible error where a
defendant “suffers substantial prejudice as a result.” United
States v. Bartko, 728 F.3d 327, 344 (4th Cir. 2013) (internal
quotation marks omitted). “[T]he evidence of multiple
conspiracies [must have been] so strong in relation to that of a
single conspiracy that the jury probably would have acquitted on
the conspiracy count had it been given a cautionary multiple-
conspiracy instruction.” Id.The district court did not abuse its discretion in refusing
a multiple-conspiracies instruction. Baker, Oiler, and Long are
correct that since Dillulio was a Government agent during the
relevant periods, he cannot serve as the requisite co-
conspirator link between members of the conspiracy. See
Hackley, 662 F.3d at 679 (“[A] government agent . . . cannot be
a co-conspirator.”). Their remaining arguments assert that
since each of them dealt with Dillulio at different periods of
time and because there was little-to-no contact between each of
13
them personally, they cannot have been members of the same
conspiracy. By focusing on the lack of personal and temporal
overlap between each other, they ignore the broader charged
conspiracy and the totality of the record evidence showing
connections between the charged conspirators and others.
The conspiracy charged in Count 3 was large, naming fifteen
individuals alleged to have participated together, and with
others who were not charged, in a narcotics conspiracy spanning
five years. To satisfy its burden, the Government did not have
to prove that Baker, Oiler, and Long acted in concert with each
other, but rather that they participated in the Chapter-centered
narcotics conspiracy charged in Count 3. See United States v.
Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (noting that the
existence of a single conspiracy depends on “the overlap of key
actors, methods, and goals”); see also United States v. Johnson,
54 F.3d 1150, 11154 (4th Cir. 1995). The Government’s evidence
tied Baker, Oiler, and Long individually to others who were also
involved in that same endeavor, demonstrating a single
conspiracy to participate in the sale and distribution of
narcotics in South Carolina, as well as laundering money from
the proceeds of drug sales occurring elsewhere. While the
evidence against Baker, Oiler, and Long obviously focused on
their individual roles, it also included evidence that they
worked with other members and associates of the Chapter to
14
purchase and sell narcotics in and around Rock Hill. In
addition, the evidence established that they each agreed with
other indicted and unindicted individuals to aid Dillulio in
laundering the alleged proceeds of the narcotics Dillulio’s New
York compatriots sold.
That Baker, Oiler, and Long’s specific roles encompassed
only one type of narcotic charged in the conspiracy, or spanned
a discrete period of time within the five-year period charged,
or did not connect with each other and only occasionally had
direct coordination with other participants, does not alter the
conclusion that the evidence points to the existence of the
single charged conspiracy. We have often remarked on the
inherent “clandestine and covert” nature of a conspiracy, which
often leads to there being only circumstantial evidence of its
existence. E.g., United States v. Burgos, 94 F.3d 849, 857 (4th
Cir. 1996); see also Blumenthal v. United States, 332 U.S. 539,
557 (1947) (“Secrecy and concealment are essential features of
successful conspiracy.”). Moreover, “one may be a member of a
conspiracy without knowing its full scope, or all its members,
and without taking part in the full range of its activities or
over the whole period of its existence.” United States v.
Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). And, once the
existence of the conspiracy was proven, each individual
15
defendant’s connection to it need only have been “slight” to tie
him to that charged conspiracy. Burgos, 94 F.3d at 861.
Simply put, the evidence of multiple conspiracies is not
“so strong” in this case in relation to that of a single
conspiracy to suggest that “the jury probably would have
acquitted on the [narcotics] conspiracy count had it been given
a cautionary multiple-conspiracy instruction.” Cf. Bartko, 728
F.3d at 344. Accordingly, the district court did not abuse its
discretion in refusing to give such an instruction.
3.
Baker, Oiler, and Long next challenge the sufficiency of
the evidence to support their convictions for participating in a
RICO conspiracy. Count 2 alleged that beginning from 2008 to
the date of the superseding indictment, Baker, Oiler, Long, and
eight others conspired with each other and uncharged
individuals, as “persons employed by and associated with the
Enterprise known as the Hells Angels Rock Hell City Nomad
Chapter of the Hells Angels,” to violate RICO through a pattern
of racketeering activity consisting of multiple violations of
the Hobbs Act, money laundering, arson, and narcotics
trafficking. (J.A. 190-91 (citing 18 U.S.C. § 1962(c), (d)).)
Baker, Oiler, and Long moved for a judgment of acquittal as to
Count 2, arguing that the Government failed to show that the
16
conspiracy entailed a “pattern of racketeering” because the
predicate acts the Government relied on were “both unrelated and
they don’t have the threat of future conduct based on the time
period[.]” (J.A. 1579-80.) The district court denied the
motions.
We review the district court’s denial of this motion de
novo, viewing all the evidence and drawing all inferences in
favor of the Government. United States v. Penniegraft, 641 F.3d
566, 571 (4th Cir. 2011). We must affirm the verdict so long as
a reasonable fact finder could find the essential elements of
the offense beyond a reasonable doubt. United States v. Higgs,
353 F.3d 281, 313 (4th Cir. 2003).
Under 18 U.S.C. § 1962(d), it is unlawful to “conspire to
violate” RICO. RICO makes it unlawful “for any person employed
by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering
activity.” 18 U.S.C. § 1962(c). A “pattern of racketeering
activity,” consists of “at least two acts of racketeering
activity” occurring within a ten-year period, 18 U.S.C.
§ 1961(5), that are related and “amount to or pose a threat of
continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 239 (1989).
17
The Government initially responds that Baker, Oiler, and
Long’s challenge fails because “so long as the necessary
conspiratorial agreement exists, no pattern of racketeering acts
with continuity and relatedness need be proven to sustain a RICO
conspiracy conviction.” (Resp. Br. 52.) The Government is
partially correct. In Salinas v. United States, 522 U.S. 52(1997), the Supreme Court held that a RICO “conspirator must
intend to further an endeavor which, if completed, would satisfy
all of the elements of a substantive criminal offense,” and that
he may do so without personally committing or agreeing to commit
the two or more acts of racketeering activity required to
establish a “pattern.” Id. at 63, 65; see also United States v.
Mouzone, 687 F.3d 207, 213 (4th Cir. 2012) (holding that because
a RICO conspiracy does not “criminalize mere association with an
enterprise,” “criminal liability will attach only to the knowing
agreement to participate in an endeavor which, if completed
would constitute a violation of the substantive statute”
(internal quotation marks omitted)).
To establish a RICO conspiracy, the Government need not
prove that a “pattern of racketeering activity” actually
occurred. It need only prove that the conspirators intended to
further an endeavor that would include a “pattern of
racketeering activity.” Because the intended objective of a
“pattern of racketeering activity” has the same definition in
18
either context, there still must be some proof in the conspiracy
prosecution that the conspiracy was to commit acts that would
satisfy the relatedness and continuity criteria of a “pattern of
racketeering activity.” The concepts of “relatedness” and
“continuity” do not vanish simply because this is a conspiracy
rather than a substantive RICO violation. Instead, it is the
nature of the Government’s burden, and the proof sufficient to
meet it, that necessarily differ between a RICO conspiracy and a
substantive RICO violation. E.g., United States v. Cianci, 378
F.3d 71, 88 (1st Cir. 2004) (“For purposes of a RICO conspiracy,
the sufficiency question[] boils down to whether a jury could
have found that the defendants intended to further an endeavor
which, if completed, would have satisfied the ‘pattern’
requirement of RICO.” (citing Salinas, and then analyzing under
H.J. Inc.)); United States v. Corrado, 227 F.3d 543, 554 (6th
Cir. 2000) (same).
The Government has satisfied its burden to establish a
conspiracy to engage in a “pattern of racketeering activity.”
In H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239
(1989), the Supreme Court explained that to be “related,”
predicate acts must “have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise
[be] interrelated by distinguishing characteristics [as opposed
to being] isolated events.” Id. at 240 (quoting § 3575(e)).
19
While Baker, Oiler, and Long argue their membership in the
Chapter was incidental to any criminal activity, the record
belies that assertion. The Government’s evidence demonstrated
that the Chapter served as a central force in the conspiracy.
Its members and associates were the participants. The Chapter
received proceeds from the illicit activities. The presidents
of the Chapter (first Dan Bifield, later Baker) received
kickbacks from Dillulio in order to solicit new participants to
the activities, recommend who was trustworthy or could be used
for particular roles, and generally to keep other conspirators
“in line.” In addition, the conspirators used common drug
suppliers and other connections to facilitate their own roles.
The record also shows continuity of criminal enterprise.
While Baker, Oiler, and Long each participated in the conspiracy
for a more limited timeframe, the broader charged conspiracy
showed that Chapter members were engaged in ongoing criminal
activity that had no inherent end. See id. at 241 (stating that
continuity can be shown by either “a closed period of repeated
conduct, or . . . past conduct that by its nature projects into
the future with a threat of repetition”). Indeed, the record
suggests that the instigation of criminal proceedings is what
ended the conspiracy. See, e.g., Heinrich v. Waiting Angels
Adoption Servs., 668 F.3d 393, 410 (6th Cir. 2012) (“‘The lack
of a threat of continuity of racketeering activity cannot be
20
asserted merely by showing a fortuitous interruption of that
activity such as by an arrest, indictment or guilty verdict.’”
(quoting United States v. Busacca, 936 F.2d 232, 238 (6th Cir.
1991)). This evidence is sufficient to satisfy the Government’s
burden of showing that Baker, Oiler, and Long conspired to
engage in an endeavor that sought to undertake a “pattern” of
racketeering activity.
B.
While the above analysis resolves Baker’s appeal, Oiler,
Long, and Hernandez each raise an additional separate claim of
error. Oiler challenges the sufficiency of the evidence to
support his conviction for possession of a firearm during a drug
trafficking crime. Long raises a sufficiency of the evidence
challenge to his conviction for transferring a firearm for use
in a crime of violence. Hernandez contends the district court
committed procedural error during sentencing by including a 1989
state felony conviction in his criminal history computation and
that he is entitled to be resentenced. Each argument is
addressed in turn.
1.
Oiler challenges the sufficiency of the evidence to support
his conviction on Count 37, that “beginning in or around
21
February of 2012 up to June 7, 2012, [he] knowingly did carry a
firearm during, and in relation to, and did possess the firearm
in furtherance of, a drug trafficking crime,” in violation of 18
U.S.C. § 924(c). (J.A. 208.) In his oral motion for judgment
of acquittal, Oiler argued the evidence was insufficient to
support his guilt because the audio recording the Government
relied on to show Oiler stating he possessed a gun during a drug
deal was muffled and could be interpreted differently. The
district court denied the motion.
The Court reviews the district court’s denial of a motion
for judgment of acquittal de novo. United States v. Hamilton,
699 F.3d 356, 361 (4th Cir. 2012). The Court will uphold the
jury’s verdict if, “viewing the evidence in the light most
favorable to the government, there is substantial evidence in
the record to support the verdict.” United States v. McFadden,
753 F.3d 432, 444 (4th Cir. 2014). “Substantial evidence is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Id. (internal quotation marks
omitted).
To support a conviction under § 924(c), the record must
contain evidence from which a jury could find beyond a
reasonable doubt that the defendant (1) possessed a firearm, and
(2) that the possession was “in furtherance of a drug
22
trafficking crime[.]” Jeffers, 570 F.3d at 565. A firearm is
possessed “in furtherance of a drug crime,” when “the possession
of a firearm furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002).
The record supports Oiler’s conviction. At trial, the
Government introduced a recording from a March 1, 2012,
conversation between Oiler and Dillulio during which Oiler
picked up money from Dillulio in order to purchase narcotics.
As Oiler prepares to leave, Dillulio says, “do well nobody’s
gonna bother you with money [sic].” Oiler responds, “F[---]
I’ve got my gun.” (J.A. 1888.) While Oiler challenges what the
voices on the recording actually say, that constitutes a factual
dispute that the jury was entitled to determine. Viewed in the
light most favorable to the Government, the recording is proof
that Oiler carried a gun as he went to purchase narcotics for
Dillulio. 4 As such, the district court did not err in denying
Oiler’s motion for judgment of acquittal.
4
Oiler’s additional assertion that a single reference to
carrying a firearm cannot support his conviction finds no
support in the statute or case law. 18 U.S.C. § 924(c)
(requiring that a person “possess[] a firearm” “in furtherance
of” a drug trafficking crime); see, e.g., United States v.
Perry, 560 F.3d 246, 256 (4th Cir. 2009) (“In order to convict
[the defendant] of a § 924(c) crime, the government was only
required to prove that [he] possessed a firearm in furtherance
of a single drug-trafficking offense[.]”). Nor is there merit
(Continued)
23
2.
Long challenges the sufficiency of the evidence to support
his conviction on Count 70, that he “knowingly did transfer
firearms, that is, a Norinco model SKS 7.62 caliber rifle and a
Tanfoglio Titan model .25 caliber pistol, knowing that the
firearms would be used in a crime of violence and a drug
trafficking crime,” in violation of 18 U.S.C. § 924(h). 5 (J.A.
228.) Long does not dispute that on September 28, 2011, he sold
the two firearms to Dillulio. Instead, Long argues the record
evidence does not prove beyond a reasonable doubt that he “knew”
when he transferred the firearms to Dillulio that they would be
used to commit a crime of violence.
Because Long did not move for a judgment of acquittal on
this count, we review for plain error. See United States v.
Wallace, 515 F.3d 327, 332 (4th Cir. 2008) (discussing standard
of review for sufficiency of evidence claims that have not been
to Oiler’s argument that the conviction cannot stand because the
district court dismissed a count (Count 36) that was added
against him at the same time as Count 37. The dates set out in
Count 37 encompass the March 1, 2012, act of possession, and
that was the basis for the Government’s prosecution of Count 37.
We therefore reject these arguments as well.
5
Eighteen U.S.C. § 924(h) states: “Whoever knowingly
transfers a firearm, knowing that such firearm will be used to
commit a crime of violence . . . or [a] drug trafficking crime
. . . shall be imprisoned not more than 10 years, fined in
accordance with this title, or both.”
24
preserved below); see also United States v. Olano, 507 U.S. 725,
732-34 (1993) (stating that to demonstrate plain error, there
must be (1) error; (2) that was plain; and (3) that affected the
defendant’s “substantial rights”). The jury verdict will be
upheld if “there is substantial evidence, viewed in the light
most favorable to the Government, to support it.” United States
v. Cardwell, 433 F.3d 378, 390 (4th Cir. 2009).
Applying these standards, we affirm Long’s conviction for
violating § 924(h). At trial, the Government introduced
recordings in which Dillulio and Long discussed Dillulio’s plan
to have his New York “crew” rob a “Mexican . . . with like four
pounds of meth,” then sell it in Canada and give the proceeds to
Dillulio to be laundered locally. (J.A. 1728, 1733.) A
conversation between Dillulio and Dan Bifield recorded around
this same time featured Bifield telling Dillulio that Long could
obtain an AK47 for him. A later conversation between Dillulio
and Long confirms that Bifield had relayed this information to
Long, and that Long needed to check what he could supply. A few
days later, Long told Dillulio that he could provide a firearm
“similar” to the AK47. (J.A. 435.) During that conversation,
Long also mentioned “find[ing] out who’s got some [drugs] and
knock[ing] them off,” and Dillulio again mentioned the New York
robbery to obtain narcotics for resale. (J.A. 436.) Lastly,
during the firearms transfer, Dillulio asked how the rifle
25
works, and Long replied that “whoever is going to get it,
they’ll know what to do.” (J.A. 1221.) This record is
sufficient for a jury to have concluded that Long “knew” from
both Bifield and Dillulio directly that the firearm would be
used “in a crime of violence or a drug trafficking crime.” We
therefore affirm this conviction.
3.
Hernandez was charged and convicted of participating in the
narcotics conspiracy (Count 3). The pre-sentence report
included three criminal history points for a 1989 South Carolina
conviction for criminal sexual conduct, third degree (“1989
state felony conviction”). Consequently, it set Hernandez’s
criminal history category at IV, which, when coupled with his
total offense level of 36, resulted in a Sentencing Guidelines
range of 262 to 327 months’ imprisonment.
Over Hernandez’s objection to the criminal history
computation, the district court adopted all of the PSR’s
recommendations and sentenced Hernandez to the low end of the
calculated Sentencing Guidelines range, 262 months’
imprisonment.
Hernandez argues, as he did below, that his 1989 state
felony conviction falls outside the 15-year look-back period for
when prior offenses can be included in computing a criminal
26
history category. 6 He contends that his term of imprisonment for
the 1989 state felony conviction ended on December 31, 1996;
that the 15-year look-back period thus expired on December 31,
2011; and that there was no evidence in the record that his
participation in the narcotics conspiracy began prior to January
2012. Accordingly, he argues that his 1989 state felony
conviction should not have been included as part of his criminal
history computation.
The Government bore the burden of proving the facts
necessary to establish the applicability of any Guidelines
enhancements by a preponderance of the evidence. United States
v. McGee, 736 F.3d 263, 271 (4th Cir. 2013). We review the
district court’s factual findings for clear error, and its legal
conclusions de novo. Id. We will reverse under the clear error
standard only if we are “‘left with the definite and firm
conviction that a mistake has been committed.’” United States
6
U.S.S.G. § 4A1.2 instructs how a defendant’s criminal
history is to be computed. Subsection (e)(1) states:
Any prior sentence of imprisonment exceeding one year
and one month that was imposed within fifteen years of
the defendant’s commencement of the instant offense is
counted. Also count any prior sentence of
imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year
period.
27
v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).
Because the record contains ample evidence to support the
district court’s finding that Hernandez participated in the
narcotics conspiracy in December 2011, we hold that it did not
err by including Hernandez’s 1989 state felony conviction as
part of his criminal history computation. That evidence
consisted of both telephone toll records and recordings from
wiretapped telephone conversations and in-person conversations.
Although there are not recordings of Hernandez talking to any
co-conspirators during December 2011, the Government’s evidence
nonetheless proved by a preponderance of the evidence that
Hernandez was participating in the conspiracy during that month.
At trial, the Government introduced evidence that Dillulio
would purchase narcotics from co-conspirator Oiler, whose
supplier was co-conspirator Kerry Chitwood, 7 whose supplier was
Hernandez. In December 2011, the FBI only had recordings of the
telephone and in-person conversations between Dillulio and Oiler
because they had not yet obtained wiretap warrants for Oiler and
Chitwood’s telephones. In January 2012, the FBI obtained
permission to wiretap Oiler’s telephone, and in February 2012,
7
Chitwood was also named in the superseding indictment; he
pleaded guilty to the narcotics conspiracy charged in Count 3
and is not a party to this appeal.
28
they wiretapped Chitwood’s telephone. Based on when the
Government began obtaining this evidence, then, it introduced
recordings of conversations between Oiler and Dilluio that
occurred in December 2011, recordings of conversations between
Chitwood and Oiler (and between Oiler and Dillulio) that
occurred in January 2012, and recordings of conversations
between Hernandez and Chitwood (and between Chitwood and Oiler,
and Oiler and Dillulio) in February and March 2012. Because it
lacked audio recordings of conversations between Hernandez and
Chitwood before February 2012, the Government introduced toll
records from December 2011 through February 2012 showing
telephone calls placed to and from the numbers identified as
belonging to Oiler, Chitwood, and Hernandez.
Cross-referencing this data demonstrates that the pattern
established by a “complete” set of recordings arranging the
deals in February and March 2012 is consistent with a pattern
also indicated by the combination of “incomplete” recordings and
telephone toll records for similar deals in January 2012 and —
fatal to Hernandez’s claim on appeal — December 2011. Thus,
while Hernandez was not recorded on a wiretap in December 2011,
the evidence nonetheless demonstrated, by a preponderance of the
evidence, a pattern of telephone communications from each lower-
level conspirator to Hernandez in December 2011.
29
In sum, then, the district court did not clearly err in
determining that the Government established by a preponderance
of the evidence that in December 2011, Hernandez was supplying
narcotics to Chitwood, on behalf of Oiler, to be sold to
Dillulio. Because the evidence connected Hernandez to the
narcotics conspiracy in December 2011, he was serving a term of
imprisonment for his 1989 state felony conviction during the 15-
year look-back period set out in U.S.S.G. § 4A1.2(e)(1).
Accordingly, the district court did not err by including points
for the 1989 state felony conviction in Hernandez’s criminal
history computation.
III.
For the reasons set forth above, we affirm the judgments of
conviction and sentences of Baker, Oiler, Long, and Hernandez.
AFFIRMED
30