United States v. Izell Grissett, Jr. , 606 F. App'x 717 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IZELL DELOREAN GRISSETT, JR., a/k/a Buddy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:13-cr-00134-JFA-2)
Submitted: March 27, 2015 Decided: April 13, 2015
Before KEENAN and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David Bruce Betts, Columbia, South Carolina, for Appellant.
Nancy Chastain Wicker, William Kenneth Witherspoon, Assistant
United States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Izell Delorean Grissett, Jr., was charged in five counts of
a seven-count indictment with: (1) conspiracy to distribute and
distribution of 5 kilograms or more of cocaine and 280 grams or
more of crack cocaine, 21 U.S.C. §§ 841(a)(1), 846 (2012) (Count
One); (2) Hobbs Act robbery, 18 U.S.C. § 1951 (2012) (Count
Four); (3) using and carrying a firearm during and in relation
to a drug trafficking crime and a crime of violence, 18 U.S.C.
§ 924(c) (2012) (Count Five); (4) being a felon in possession of
a firearm and ammunition, 18 U.S.C. § 922(g) (2012) (Count Six);
and (5) possession with intent to distribute 500 grams or more
of cocaine and a quantity of crack cocaine, 21 U.S.C. §
841(a)(1) (2012) (Count Seven). The jury found Grissett guilty
on all counts; he was sentenced to life plus ten years’
imprisonment. Grissett noted a timely appeal.
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), conceding that there are no
meritorious issues for appeal but questioning whether the
district court erred in denying Grissett’s motion for judgment
of acquittal pursuant to Fed. R. Crim. P. 29. Grissett has
filed a pro se supplemental brief raising two additional issues:
(1) the district court erred when it issued a modified Allen
charge to the jury; and (2) the district court erred in applying
the murder cross-reference at sentencing.
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This court reviews de novo the district court’s denial of a
motion for judgment of acquittal. United States v. Strayhorn,
743 F.3d 917, 921 (4th Cir.), cert. denied, 134 S. Ct. 2689(2014). In assessing the sufficiency of the evidence, we
determine whether there is substantial evidence to support the
conviction when viewed in the light most favorable to the
Government. Id. “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.” United States v. Jaensch, 665 F.3d 83, 93
(4th Cir. 2011) (internal quotation marks omitted). The test is
whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir.
2009) (internal quotation marks omitted). An appellate court
“may not weigh the evidence or review the credibility of
witnesses. . . . [t]hose functions are reserved for the jury.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)
(internal citation omitted).
With these standards in mind, we have reviewed the record
and find that the evidence presented was sufficient to support a
conviction as to each of the counts with which Grissett was
charged. Testimony established that Grissett was part of a
long-term cocaine and crack cocaine distribution operation in
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the Columbia, South Carolina area. According to witnesses,
Grissett and his co-conspirator planned and carried out a
robbery of one of their suppliers in June 2010, during which
Grissett shot and killed Hector Carrion. Based on this
evidence, we find that the district court did not err in denying
Grissett’s motion for judgment of acquittal.
Turning to Grissett’s pro se claims, he first argues that
the district court erred in issuing a modified Allen charge that
eliminated any mention of the words “minority” or “majority”
with regard to the jurors’ votes. The modification was agreed
upon by both parties because the jurors had mistakenly indicated
their split in the votes in their message to the judge. “An
Allen charge, based on the Supreme Court’s decision in Allen v.
United States, 164 U.S. 492 (1896), is ‘[a]n instruction
advising deadlocked jurors to have deference to each other’s
views, that they should listen, with a disposition to be
convinced, to each other’s argument.’” United States v. Burgos,
55 F.3d 933, 935 (4th Cir. 1995) (quoting United States v.
Seeright, 978 F.2d 842, 845 n.* (4th Cir. 1992)). We review the
content of an Allen charge for abuse of discretion. United
States v. Burgos, 55 F.3d at 935. An “Allen charge must not
coerce the jury, and it must be fair, neutral and balanced.”
United States v. Cropp, 127 F.3d 354, 359 (4th Cir. 1997)
(internal citations omitted). We conclude that the district
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court’s charge was not coercive nor can Grissett show that he
suffered any prejudice as a result. Finally, Grissett
challenges the application of the murder cross-reference at
sentencing. The advisory Sentencing Guidelines provide that
“[i]f a victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111 had such killing taken
place within the territorial or maritime jurisdiction of the
United States, apply § 2A1.1 (First Degree Murder) . . . if the
resulting offense level is greater than that determined under
this guideline.” U.S. Sentencing Guidelines Manual §
2D1.1(d)(1) (2013). The Government must prove the facts
underlying a cross-reference by a preponderance of the evidence.
United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012). We
find that the testimony established that the killing of Hector
Carrion constituted first degree murder within the meaning of 18
U.S.C. § 1111. Also, because the application of § 2D1.1(d)(1)
did not increase Grissett’s mandatory minimum sentence, his
reliance on the Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013) is misplaced.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s order. This
court requires that counsel inform Grissett, in writing, of the
right to petition the Supreme Court of the United States for
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further review. If Grissett requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this Court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Grissett. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the
decisional process.
AFFIRMED
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