United States v. Terrance Brown, Jr. ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4894
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE NATHANIEL BROWN, JR., a/k/a War, a/k/a War Stone, a/k/a
Luciano, a/k/a King Riko,
Defendant - Appellant.
No. 20-4107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLIFFORD ALEXANDER JENNINGS, a/k/a Big Cliff, a/k/a Wolverine, a/k/a
Ethiopia, a/k/a Certified, a/k/a Mr. Certified,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:17-cr-00150-RAJ-RJK-2; 2:17-cr-
00150-RAJ-RJK-3)
Submitted: March 31, 2021 Decided: October 20, 2021
Before WILKINSON, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Andrew M. Stewart, DENNIS, STEWART & KRISCHER, PLLC, Arlington, Virginia;
Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT
& WOODWARD, P.C., Virginia Beach, Virginia, for Appellants. G. Zachary Terwilliger,
United States Attorney, Raj Parekh, Acting United States Attorney, Daniel T. Young,
Assistant United States Attorney, Alexandria, Virginia, Joseph E. DePadilla, Assistant
United States Attorney, Norfolk, Virginia, Megan Montoya, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Terrance Nathaniel Brown, Jr. and Clifford Alexander Jennings were charged in the
Eastern District of Virginia with a racketeering conspiracy and various drug and firearm
offenses, which are related to convictions previously obtained against Brown and Jennings
in the Western District of Virginia. In this case, a jury convicted Brown of four counts of
distribution of, or possession with intent to distribute, marijuana or clonazepam, in
violation of 21 U.S.C. § 841(a)(1). The court sentenced Brown to 36 months’
imprisonment, to run concurrently with the sentence imposed in the Western District of
Virginia on the related counts. The jury convicted Jennings of seven counts of distribution
of heroin, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 2, 922(g)(1); and transfer of a firearm to a prohibited
person, in violation of 18 U.S.C. § 922(d)(1). The court sentenced Jennings to 96 months’
imprisonment, consisting of 60 months on the drug distribution counts, to run concurrently
with his prior sentence from the Western District of Virginia, and 36 months on the firearm
counts, concurrent to each other but consecutive to both the sentence for the drug counts
and the sentence he already was serving in the Western District of Virginia.
On appeal, Brown challenges the sufficiency of the evidence to support his
convictions and disputes the district court’s decision to impose a Sentencing Guidelines
enhancement for possession of a firearm, pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2018). In his original appellate briefs, Jennings challenges the district
court’s decision to run the sentence imposed for his firearm offenses consecutive to his
prior sentence in the Western District of Virginia.
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Following review of the parties’ submissions, we directed the parties to provide
supplemental briefs addressing: (1) whether United States v. Provance, 944 F.3d 213 (4th
Cir. 2019), requires this Court to consider any error in a sentence under United States v.
Rogers, 961 F.3d 291 (4th Cir. 2020), before reviewing the substantive reasonableness of
the sentence; and (2) whether Jennings’ criminal judgment violates Rogers. Finding no
error in Brown’s convictions and sentence, we affirm his criminal judgment. However, we
vacate Jennings’ sentence and remand for resentencing.
I.
Brown first asserts that the evidence at trial was insufficient to support his
convictions under § 841(a)(1). “We must sustain a guilty verdict if, viewing the evidence
in the light most favorable to the prosecution, the verdict is supported by substantial
evidence.” United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “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. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015) (internal quotation marks
omitted). In undertaking this review, we will not “resolve conflicts in the testimony” or
“weigh the evidence,” Musacchio v. United States, 577 U.S. 237, 243 (2016) (internal
quotation marks omitted); see Burfoot, 899 F.3d at 334, but will “allow the government all
reasonable inferences that could be drawn in its favor,” United States v. Harvey, 532 F.3d
326, 333 (4th Cir. 2008). We also must “remain mindful that a conviction may rely entirely
on circumstantial evidence.” United States v. Hassan, 742 F.3d 104, 139 (4th Cir. 2014)
(internal quotation marks omitted). “A defendant who brings a sufficiency challenge bears
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a heavy burden, as appellate reversal on grounds of insufficient evidence is confined to
cases where the prosecution’s failure is clear.” United States v. Savage, 885 F.3d 212, 219
(4th Cir. 2018) (internal quotation marks omitted).
Counts 17 and 18 required proof that Brown (1) “knowingly or intentionally
distributed the controlled substance alleged in the indictment, and (2) at the time of such
distribution . . . knew that the substance distributed was a controlled substance under the
law.” United States v. Howard, 773 F.3d 519, 526 (4th Cir. 2014) (internal quotation marks
omitted). Counts 19 and 20 required proof that Brown “(1) possessed [the] controlled
substance [alleged in the indictment]; (2) knew of the possession; and (3) intended to
distribute the controlled substance.” United States v. Ath, 951 F.3d 179, 188 (4th Cir.),
cert. denied, 140 S. Ct. 2790 (2020). Our review of the trial transcript—particularly the
testimony of Detective Gillespie and Investigator Wosk regarding the events of August 27
and 28, 2015—provides ample evidence to support these convictions.
Brown’s arguments to the contrary are unpersuasive. Brown argues that he lacked
the requisite knowledge regarding the controlled substances he distributed, as he offered to
sell Gillespie Xanax, not clonazepam. “[W]hile the statute requires specific intent to
distribute a controlled substance or to possess with intent to distribute a controlled
substance, it does not require that the defendant have, within that intent, specific
knowledge of the controlled substance or any of the [chemical components] that constitute
the controlled substance.” United States v. Ali, 735 F.3d 176, 186 (4th Cir. 2013); see
United States v. Brower, 336 F.3d 274, 277 (4th Cir. 2003). Circumstantial evidence
permitted the jury to infer that Brown possessed the requisite mens rea, even if he
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incorrectly believed that he was distributing or attempting to distribute a different
controlled substance. Although Brown also points to Gillespie’s misidentification of
Brown at trial, the jury was presented with adequate additional evidence establishing
Brown’s identity as the individual who sold the drugs in question. We therefore readily
conclude that substantial evidence supports Brown’s convictions under § 841(a).
II.
Turning to Brown’s challenge to the USSG § 2D1.1(b)(1) enhancement, we review
the district court’s legal determinations de novo and its factual findings for clear error. See
United States v. Dennings, 922 F.3d 232, 235 (4th Cir. 2019). A factual finding is clearly
erroneous when, “although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
United States v. Wooden, 887 F.3d 591, 602 (4th Cir. 2018) (internal quotation marks
omitted). “If the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence differently.”
United States v. Ferebee, 957 F.3d 406, 417 (4th Cir. 2020) (internal quotation marks
omitted).
In drug offenses, the Guidelines provide for a two-level enhancement “[i]f a
dangerous weapon (including a firearm) was possessed.” USSG § 2D1.1(b)(1). The
enhancement “reflects the increased danger of violence when drug traffickers possess
weapons” and “should be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” USSG § 2D1.1 cmt. n.11(A). The
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Government bears “the initial burden of proving possession of a weapon in connection with
drug activities by a preponderance of the evidence.” United States v. Bolton, 858 F.3d 905,
912 (4th Cir. 2017) (internal quotation marks omitted). “The enhancement is proper when
the weapon was possessed in connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.” United States v. Slade, 631
F.3d 185, 189 (4th Cir. 2011) (internal quotation marks omitted). Establishing the requisite
nexus requires the Government to “prove only that the weapon was present, which it may
do by establishing a temporal and spatial relation linking the weapon, the drug trafficking
activity, and the defendant.” United States v. Mondragon, 860 F.3d 227, 231 (4th Cir.
2017) (internal quotation marks omitted).
“[T]he burden of showing something by a preponderance of the evidence . . . simply
requires the trier of fact to believe that the existence of a fact is more probable than its
nonexistence.” United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal
quotation marks omitted). “[T]he Government is entitled to rely on circumstantial evidence
to carry its burden” with respect to the enhancement. Id. at 629.
We conclude that the district court did not clearly err in finding that Brown
possessed a weapon during his interaction with Gillespie. Rather, considered in light of
the totality of the evidence before the court, Gillespie’s testimony supports an inference
that Brown threatened to shoot Gillespie during their drug transaction and possessed the
immediate ability to do so. Viewed through the lens of Gillespie’s extensive experience,
and coupled with evidence of Brown’s willingness to use firearms to intimidate and enforce
compliance during drug sales within the time period of the transaction, Gillespie’s
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observations provide sufficient support for the court’s factual finding. See Mondragon,
860 F.3d at 232. We are unpersuaded by Brown’s attempt to analogize to United States v.
McAllister, 272 F.3d 228 (4th Cir. 2001), as we find that case readily distinguishable on its
facts. Thus, we find no error in Brown’s Guideline calculation.
III.
Finally, Jennings argues that the district court imposed a procedurally and
substantively unreasonable sentence by running the sentence imposed for Counts 24 and
25 consecutive to the sentence he previously received in the Western District of Virginia
on related counts. Jennings contends that the district court insufficiently explained its
decision to impose a partially consecutive sentence and that the resulting sentence was
greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors. As previously noted, we
directed the parties to address, among other issues, whether Jennings’ sentence violates our
intervening decision in Rogers. 1
We review a sentence for reasonableness, applying “a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We first review the
sentence for “significant procedural error,” such as incorrectly calculating the Guidelines
range, insufficiently considering the 18 U.S.C. § 3553(a) factors, or inadequately
explaining the sentence imposed. See id. at 51. If we find no such procedural error, we
1
Because Brown has not challenged either the validity of his supervised release
conditions or the substantive reasonableness of his sentence—and, thus, his arguments
implicate neither Rogers nor Provance—we decline to review Brown’s sentence for Rogers
error. See United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) (deeming issue not
raised in opening brief waived).
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review the substantive reasonableness of the sentence, “tak[ing] into account the totality of
the circumstances to determine whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United
States v. Nance, 957 F.3d 204, 212 (4th Cir.) (internal quotation marks omitted), cert.
denied, 141 S. Ct. 687 (2020). We reiterated in Provance that procedural reasonableness
review is a threshold consideration, and we may proceed to substantive reasonableness
review “if, and only if, we find the sentence procedurally reasonable.” Provance, 944 F.3d
at 218 (alteration and internal quotation marks omitted).
In Rogers, we held that “all non-mandatory conditions of supervised release must
be announced at a defendant’s sentencing hearing,” either directly or through express
incorporation by reference. 961 F.3d at 296, 299. As the parties observe in their
supplemental briefs, the district court did not comply with Rogers, 2 as the district court
neither announced nor incorporated by reference the “standard” but discretionary
supervised release conditions listed in Jennings’ written judgment. And, as the parties now
agree, this procedural error requires us to vacate Jennings’ sentence in its entirety and
remand for a full resentencing. See United States v. Singletary, 984 F.3d 341, 346 n.4 (4th
Cir. 2021) (explaining that Rogers error requires full resentencing “given that custodial and
supervised release terms are components of one unified sentence” (alteration and internal
quotation marks omitted)).
2
We note that the district court did not have the benefit of Rogers when it sentenced
Jennings.
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In light of the Government’s concessions, we need not resolve whether Provance
generally requires us to consider a sentence for Rogers error sua sponte before reaching an
appellant’s substantive reasonableness challenge. Even assuming, without deciding, that
we have the discretion to consider the substantive reasonableness of Jennings’ custodial
sentence notwithstanding the Rogers error, we decline to exercise our discretion to do so
here. As in Singletary, there is no need for us to examine Jennings’ remaining claims of
procedural or substantive sentencing error because the Rogers error “[b]y itself . . . requires
that we vacate [Jennings’] sentence and remand for the district court to conduct the
sentencing anew.” Id. at 344.
IV.
Accordingly, we affirm Brown’s criminal judgment, vacate Jennings’ sentence, and
remand Jennings’ case to the district court for resentencing. 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 IN PART,
VACATED IN PART,
AND REMANDED
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