United States v. Kentrell McIntyre , 639 F. App'x 171 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4186
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENTRELL TYRONE MCINTYRE, a/k/a Mustafa,
Defendant - Appellant.
No. 14-4337
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAIMEL KENZIE DAVIDSON, a/k/a I-Shine,
Defendant - Appellant.
No. 14-4339
UNITED STATES OF AMERICA
Plaintiff – Appellee,
v.
PERRY GORONTENT WILLIAMS, a/k/a P-Flame, a/k/a Flame,
Defendant - Appellant.
No. 14-4343
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NATHANIEL GRAHAM, a/k/a Nasty,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00188-FDW-DSC-18; 3:12-cr-00188-
FDW-DSC-9; 3:12-cr-00188-FDW-DSC-28; 3:12-cr-00188-FDW-DSC-13)
Submitted: January 29, 2016 Decided: February 9, 2016
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
W.H. Paramore, III, W.H. PARAMORE, III, P.C., Jacksonville,
North Carolina; J. Clark Fischer, RANDOLPH & FISCHER,
Winston-Salem, North Carolina; Eric J. Foster, Asheville, North
Carolina; M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellants. Jill
Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal jury convicted Kentrell Tyrone McIntyre, Jamiel
Kenzie Davidson, Perry Gorontent Williams, and Nathaniel Graham,
of conspiracy to participate in racketeering activity, in
violation of 18 U.S.C. § 1962(d) (2012); and convicted McIntyre,
Williams, and Graham of conspiracy to commit murder in aid of
racketeering activity, in violation of 18 U.S.C. § 1959(a)(5)
(2012). The district court sentenced McIntyre to a total of 192
months of imprisonment, sentenced Davidson to 150 months of
imprisonment, sentenced Williams to 360 months of imprisonment,
and sentenced Graham to 240 months of imprisonment, and they now
appeal. For the reasons that follow, we affirm the district
court’s judgments.
Each Appellant challenges the sufficiency of the evidence
to support his convictions. We review a district court’s
decision to deny a Fed. R. Crim. P. 29 motion for a judgment of
acquittal de novo. United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). In determining whether the
evidence is sufficient to support a conviction, we determine
“whether there is substantial evidence in the record, when
viewed in the light most favorable to the government, to support
the conviction.” United States v. Palacios, 677 F.3d 234, 248
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(4th Cir. 2012) (internal quotation marks omitted). 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). Furthermore, “[d]eterminations of
credibility are within the sole province of the jury and are not
susceptible to judicial review.” Id. (internal quotation marks
omitted).
“To satisfy § 1962(d), the government must 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. Cornell, 780 F.3d 616, 621
(4th Cir.), cert. denied, 136 S. Ct. 127 (2015) (internal
quotation marks and alterations omitted). Racketeering acts
include any act or threat involving murder, kidnapping,
gambling, arson, robbery, bribery, extortion, dealing in obscene
matter, or felony controlled substance offenses. 18 U.S.C.
§ 1961(1) (2012). Completion of any overt act is not an element
of a RICO conspiracy offense; rather the Government need only
demonstrate that the conspirators agreed to pursue the same
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criminal objective, whether that objective is started or carried
out. Cornell, 780 F.3d at 624.
To demonstrate a violation of § 1959(a)(5), the Government
had to prove that the Appellants agreed with each other to
commit a murder for the purpose of gaining entrance to or
maintaining or increasing their positions in an enterprise
engaged in racketeering activity. See United States v.
Basciano, 599 F.3d 184, 198-99 (2d Cir. 2010). In addition, to
demonstrate withdrawal from a conspiracy, a “defendant must show
affirmative acts inconsistent with the object of the conspiracy
and communicated in a manner reasonably calculated to reach his
coconspirators.” United States v. Green, 599 F.3d 360, 370 (4th
Cir. 2010). The defendant bears the burden of proving his
withdrawal from the conspiracy. Id. at 370. We have thoroughly
reviewed the record and the relevant legal authorities and
conclude that there was substantial evidence to support the
jury’s verdicts of guilt as to both counts.
Williams also challenges the district court’s order denying
his motion to appoint substitute counsel. We review the denial
of a motion for substitute counsel for abuse of discretion.
United States v. Horton, 693 F.3d 463, 466 (4th Cir. 2012). In
so doing, we consider (1) the timeliness of the motion, (2) the
adequacy of the court’s inquiry, and (3) whether the conflict
between attorney and client was so great that it resulted in
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total lack of communication preventing an adequate defense. Id.
at 466-67. We conclude that the court did not abuse its
discretion in refusing to appoint substitute counsel for
Williams one week prior to trial.
Graham argues on appeal that the court plainly erred in
failing to instruct the jury on withdrawal from a conspiracy. A
district court errs in failing to provide an instruction to the
jury where the instruction is legally correct, not substantially
covered by the charge to the jury, and dealt with a point in the
trial so important that the failure to provide the instruction
seriously impaired the defendant’s ability to conduct a defense.
United States v. Smith, 701 F.3d 1002, 1011 (4th Cir. 2012).
Here, as Graham failed to request an instruction on
withdrawal and failed to object to the court’s jury charge, we
review this issue for plain error. United States v. Nicolaou,
180 F.3d 565, 570 (4th Cir. 1999). “Under plain error review,
[Graham] must show that (1) the district court committed error,
(2) the error was plain, and (3) the error affected [his]
substantial rights.” United States v. Wilson, 484 F.3d 267, 279
(4th Cir. 2007). Our review of the record leads us to conclude
that the court committed no error in charging the jury.
Finally, McIntyre and Davidson challenge the reasonableness
of their sentences. We review a sentence for abuse of
discretion, determining whether the sentence is procedurally and
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substantively reasonable. United States v. Heath, 559 F.3d 263,
266 (4th Cir. 2009). In so doing, we examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2012)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence”. Gall v. United States, 552 U.S. 38, 51
(2007). We then review the substantive reasonableness of the
sentence, presuming that a sentence within a properly calculated
advisory Guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United
States, 551 U.S. 338, 346-56 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence).
McIntyre challenges the procedural reasonableness of his
sentence, contending that the district court erred in applying a
base offense level based on conspiracy to commit murder. We
reject McIntyre’s argument. The district court properly
calculated the advisory Guidelines range and sentenced McIntyre
within that range.
Davidson asserts on appeal that his sentence is
substantively unreasonable. If a district court imposes a
variant or departure sentence, it must provide sufficient
justification to support the degree of variance, although need
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not find that extraordinary circumstances exist. United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). We conclude
based on our review of the record that the district court
provided sufficient justification to support the chosen
sentence. Based on the court’s stated justification, the
sentence is substantively reasonable. See id. at 160 (appellate
court can only reverse a sentence if it is unreasonable, even if
the court would have imposed a different sentence).
Accordingly, we affirm the judgments of the district court.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
AFFIRMED
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