United States v. Tavon Mouzone , 687 F.3d 207 ( 2012 )


Menu:
  •                        PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,             
    Plaintiff - Appellee,
    v.
        No. 10-4781
    TAVON MOUZONE, a/k/a Batman,
    a/k/a Bloody Batman,
    Defendant - Appellant.
    
    UNITED STATES OF AMERICA,             
    Plaintiff - Appellee,
    v.                         No. 10-4814
    ANTHONY FLEMING, a/k/a Mo Easy,
    Defendant - Appellant.
    
    Appeals from the United States District Court
    for the District of Maryland, at Baltimore.
    William D. Quarles, Jr., District Judge.
    (1:08-cr-00086-WDQ-24; 1:08-cr-00086-WDQ-17)
    Argued: May 18, 2012
    Decided: July 26, 2012
    Before KEENAN, WYNN, and FLOYD, Circuit Judges.
    Affirmed by published opinion. Judge Floyd wrote the opin-
    ion, in which Judge Keenan and Judge Wynn joined.
    2                 UNITED STATES v. MOUZONE
    COUNSEL
    ARGUED: Steven Kiersh, Washington, D.C.; Robert Henry
    Waldman, Annapolis, Maryland, for Appellants. Michael
    Clayton Hanlon, OFFICE OF THE UNITED STATES
    ATTORNEY, Baltimore, Maryland, for Appellee. ON
    BRIEF: Rod J. Rosenstein, United States Attorney, Christo-
    pher Mason, Assistant United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Baltimore, Maryland,
    for Appellee.
    OPINION
    FLOYD, Circuit Judge:
    In April 2010, the government jointly tried Anthony Flem-
    ing and Tavon Mouzone, members of the gang Tree Top Piru
    (TTP), in an eight-day jury trial.
    The grand jury charged both Fleming and Mouzone with
    conspiracy to participate in a racketeering enterprise (RICO
    conspiracy), in violation of 
    18 U.S.C. § 1962
    (d). It addition-
    ally charged Fleming with committing two drug offenses: (1)
    conspiracy to distribute and possession with the intent to dis-
    tribute fifty grams or more of cocaine base, in violation of 
    21 U.S.C. §§ 846
     and 853, and (2) distribution of and possession
    with intent to distribute fifty grams or more of cocaine base,
    in violation of 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A), and 851.
    The jury convicted both Fleming and Mouzone of the
    RICO conspiracy charge, finding that distribution of crack
    cocaine, distribution of cocaine, and robbery were conspiracy
    objectives. It declined to find that murder or conspiracy to
    commit murder was a conspiracy objective. The jury also con-
    victed Fleming on both drug charges.
    UNITED STATES v. MOUZONE                    3
    On July 9, 2010, the district court sentenced Mouzone to
    240 months’ imprisonment, running concurrent with a previ-
    ous Maryland state court sentence, and it sentenced Fleming
    to three concurrent sentences—240 months’ imprisonment on
    the RICO conspiracy charge and life imprisonment on each
    drug-related charge.
    Mouzone and Fleming aver several district court errors. We
    find no reversible error and therefore affirm.
    I.
    TTP is a subset of the Bloods gang that developed in the
    Maryland prison system. According to evidence adduced at
    trial, members of the gang are expected to "put in work" to
    advance within the gang. "Putting in work" includes earning
    revenue for the gang and entails illegal activities such as rob-
    bery, distribution of drugs, and killing.
    The government introduced evidence that Fleming and
    Mouzone were members of TTP and participated in gang
    activities in the Essex area of Baltimore County, Maryland.
    As part of their membership, they participated in the gang’s
    drug-trafficking and other illicit activities.
    Specifically, the government introduced evidence regarding
    their participation in two murders. Lamont Jackson was killed
    in his home on North Streeper Street in Baltimore on Novem-
    ber 17, 2006. At trial, TTP members Terrence Brady and Troy
    Smith testified for the government as to statements by Flem-
    ing that he shot and killed Jackson in retaliation for Jackson’s
    testimony against another TTP member, Antwoine Gross (aka
    Shooter). Another TTP member, Kowan Brice, provided testi-
    mony that he drove Fleming and Mouzone to an area near
    Streeper Street in a Dodge Durango. Brice claimed that he
    "split off" from Fleming and Mouzone and went to a conve-
    nience store. After hearing noises he thought to be gunshots
    4                 UNITED STATES v. MOUZONE
    or fireworks, he returned to the Durango, where he met Flem-
    ing and Mouzone, and drove them back to Essex.
    According to testimony presented at trial, Marquel Smith,
    a non-TTP member, began selling marijuana in Essex. When
    TTP decided to "make him pay" for selling drugs in their
    neighborhood, Mouzone indicated to TTP members that "it
    was time for them to put in some work." Shortly thereafter,
    in December 2006, Mouzone provided two 9mm firearms to
    two members, who accompanied him to Smith’s house and
    killed Smith. Brady testified that one of the firearms Mouzone
    provided was the same firearm he had seen Fleming holding
    at TTP’s headquarters in November. Baltimore police eventu-
    ally recovered one of the firearms when the gang sold it, but
    it never recovered the other firearm.
    Police arrested Fleming on April 24, 2007, after Baltimore
    Police Detective Zachary Wein observed a plastic baggie with
    a white rock substance protruding from a cell phone case on
    Fleming’s hip. Seizure of the cell phone case revealed that it
    contained two plastic bags of crack cocaine.
    II.
    The defendants put forth several challenges to the evidence
    introduced at trial. First, they assert that the government pre-
    sented a drug analysis report and several 911 calls in contra-
    vention of the Confrontation Clause. Second, they urge that
    testimony provided by a firearm expert violated the district
    court’s pretrial order on the permissible scope of that testi-
    mony and was unduly prejudicial.
    Notably, both types of evidentiary rulings are subject to
    harmless error review. United States v. Banks, 
    482 F.3d 733
    ,
    741 (4th Cir. 2007) ("Evidentiary rulings are ‘subject to harm-
    less error review,’ [and] a Confrontation Clause violation may
    be found harmless on appeal." (citation omitted)(quoting
    United States v. Brooks, 
    111 F.3d 365
    , 371 (4th Cir. 1997))).
    UNITED STATES v. MOUZONE                    5
    Under this standard, "to find a district court’s error harmless,
    we need only be able to say with fair assurance, after ponder-
    ing all that happened without stripping the erroneous action
    from the whole, that the judgment was not substantially
    swayed by the error." Brooks, 
    111 F.3d at 371
     (quoting
    United States v. Heater, 
    63 F.3d 311
    , 325 (4th Cir. 1995))
    (internal quotation marks omitted).
    A.
    We review alleged Confrontation Clause violations de
    novo. United States v. Lighty, 
    616 F.3d 321
    , 376 (4th Cir.
    2010). The Confrontation Clause permits the admission of
    "[t]estimonial statements of witnesses absent from trial . . .
    only where the declarant is unavailable, and only where the
    defendant has had a prior opportunity to cross-examine."
    Crawford v. Washington, 
    541 U.S. 36
    , 59 (2004).
    1.
    Fleming first challenges the district court’s ruling permit-
    ting the government to present a drug analysis report regard-
    ing the bags of crack cocaine seized during his April 2007
    arrest.
    Forensic chemist Aisha Larkins performed an initial analy-
    sis of the type and weight of drugs seized. When the govern-
    ment learned that Larkins would be unable to testify at trial,
    however, it secured another chemist, Marta Iwashko, to per-
    form a second analysis. Because Iwashko recorded the results
    of her analysis on the same ledger that Larkins used, the drug
    analysis report submitted into evidence at trial included both
    Iwashko’s and Larkins’s findings. Notably, however, Iwashko
    testified only as to her own findings and clarified that she (1)
    "conducted a totally separate and independent test from that
    which Ms. Larkins conducted" and (2) did not "use any notes
    or anything that Ms. Larkins had left."
    6                  UNITED STATES v. MOUZONE
    Larkins reported that the first package of cocaine base
    weighed 55.45 grams and that the second package weighed
    19.08 grams, but Iwashko reported that the first package
    weighed 46.26 grams and that the second package weighed
    15.99 grams. When questioned at trial by the government
    about the discordant weight calculations, Iwashko explained
    that the cocaine base likely was "a clumpy substance [and]
    slightly wet" when initially submitted for analysis, but that
    "[t]wo and a half years later, when [she] analyzed it, . . . it
    was a lot [drier]," and thus, "the net weight [was] lighter."
    Fleming contends that the district court violated the Con-
    frontation Clause because the drug analysis report admitted
    into evidence included both Iwashko’s and Larkins’s findings.
    Moreover, he avers that Iwashko acted simply as a "surrogate
    witness" and that he was unable to "meaningfully cross-
    examine[ ]" her.
    The Supreme Court has held that when "a forensic labora-
    tory report containing a testimonial certification [is intro-
    duced] for the purpose of proving a particular fact," the
    Confrontation Clause requires that the accused "be confronted
    with the analyst who made the certification, unless that ana-
    lyst is unavailable at trial, and the accused had an opportunity,
    pretrial, to cross-examine that particular [analyst]." Bullcom-
    ing v. New Mexico, 
    131 S. Ct. 2705
    , 2710 (2011). Introducing
    an analyst "who did not sign the certification or perform or
    observe the test reported in the certification" to testify as a
    surrogate for the primary analyst is insufficient and cannot
    satisfy the Confrontation Clause. 
    Id.
    Here, we assume arguendo that admission of Larkins’s
    findings via the drug analysis report violated the Confronta-
    tion Clause. Nevertheless, we are confident that such admis-
    sion did not substantially sway the jury’s final judgment
    regarding Fleming’s drug charges. Iwashko conducted an
    independent analysis of the seized drugs, and her weight
    determinations, albeit less than Larkins’s, were well above the
    UNITED STATES v. MOUZONE                   7
    fifty gram threshold of which Fleming was convicted. Fur-
    thermore, because she conducted an analysis free from reli-
    ance on Larkins’s research, she adequately answered the
    government’s questions regarding her research and any evi-
    dent discrepancies.
    We find no merit to Fleming’s contention that he was
    unable to cross-examine Iwashko in a meaningful manner.
    The record reveals that defense counsel focused its cross-
    examination on distinguishing Larkins’s findings from Iwash-
    ko’s and on clarifying that the report contained data for which
    Iwashko was not responsible. Iwashko answered all of these
    questions ably, and she made clear the independence of her
    findings and made no attempt to vouch for those of Larkins.
    Accordingly, we conclude that the drug type and quantity
    analysis presented by the government at trial was well-
    supported by a witness who competently testified as to the
    report’s results, and we reject Fleming’s contention that
    admission of portions of the report, if erroneous, had the
    effect of altering the jury’s verdict.
    2.
    The government sought to introduce four 911 calls made in
    relation to the Lamont Jackson shooting. The district court
    admitted three of the calls. Fleming alleges that the admitted
    calls were testimonial and that their admission violated the
    Confrontation Clause.
    The first caller made two calls. In his initial call, he
    described the shooting and then explained to the operator that
    "the shooter must have ‘meant to kill’ the victim because he
    ‘ran inside the house and shot [the victim] . . . like 15
    [times].’" He also provided information about the location of
    the shooting, reported that the shooter was wearing a green
    jacket and was accompanied by a darker, younger man, and
    told the operator that the shooter and the accomplice fled the
    8                  UNITED STATES v. MOUZONE
    scene in a "Durango truck." The district court declined to
    admit this call. In his second call, made shortly after the first,
    the caller reported that the Durango had returned to Streeper
    Street, but he provided only the location of the truck before
    hanging up.
    The second and third callers arrived at the scene after the
    shooting—one reported the victim’s condition, and the other
    requested an ambulance. Neither provided information about
    the shooting or the assailants.
    We recognize at the outset that although a 911 call may
    qualify as a police interrogation, see Davis v. Washington,
    
    547 U.S. 813
    , 823 n.2 (2006), such calls are not inherently
    testimonial. 
    Id. at 826-29
    . They "are nontestimonial when
    made in the course of police interrogation under circum-
    stances objectively indicating that the primary purpose of the
    interrogation is to enable police assistance to meet an ongoing
    emergency." 
    Id. at 822
    . And they become testimonial "when
    the circumstances objectively indicate that there is no such
    ongoing emergency, and that the primary purpose of the inter-
    rogation is to establish or prove past events potentially rele-
    vant to later criminal prosecution." 
    Id.
    Here, in the three calls that the district court admitted, each
    caller simply reported his observation of events as they
    unfolded. The call transcripts do not reveal questioning by the
    911 operator that indicates an attempt "to establish or prove
    past events." Rather, the transcripts simply reflect an effort to
    meet the needs of the "ongoing emergency." Thus, we con-
    clude that the calls were nontestimonial, and we affirm the
    district court’s decision to admit them.
    B.
    The government also presented Baltimore County Police
    Sergeant Mark Ensor, a firearm and toolmark examiner, who
    testified regarding shell casings recovered from the two mur-
    UNITED STATES v. MOUZONE                    9
    der scenes. Via Ensor’s testimony, the government sought to
    prove that the firearm used to kill Jackson was also one of the
    firearms used to kill Marquel Smith.
    In pretrial motions, the government and the defense
    debated the manner in which the district court should permit
    Ensor to testify. Citing recent cases regarding the lack of sci-
    entific rigor underpinning ballistics identification testimony,
    defense counsel urged the court to "prohibit the introduction
    of any testimony that a ‘match’ between cartridge casings dis-
    covered in the course of [the] case be concluded within a rea-
    sonable degree of scientific certainty." Accordingly,
    following a hearing on the admissibility of Ensor’s testimony,
    Magistrate Judge Grimm issued a report and recommendation
    ordering (1) that Ensor be prohibited from opining that it was
    a "practical impossibility" for different firearms to have fired
    the casings, and (2) that he "state his opinions and conclusions
    without any characterization as to the degree of certainty with
    which he holds them." The district court adopted Judge
    Grimm’s recommendations in full.
    At trial, prior to Ensor’s testimony, the prosecutor, Mr.
    Hanlon, and the court engaged in the following colloquy:
    [AUSA]: On Friday, we had some discussion
    about the specific words and terminology that Ser-
    geant Ensor would be using when he stated the most
    critical of his opinions in this case.
    The Court: Yes.
    [AUSA]: We talked, and the Court, I’m sure, rec-
    ollects the discussion about the word "match" —
    The Court: Yes.
    [AUSA]: — and I indicated I’d like to use the
    word "match," but, frankly, I wasn’t necessarily sure
    what word Sergeant Ensor would use.
    10                 UNITED STATES v. MOUZONE
    The Court: Yes.
    [AUSA]: What he tells me – and I basically just
    asked him over the weekend, "What would you say,"
    and he tells me this: His opinion would be that there
    were sufficient similarities and characteristics on the
    cartridges from our two critical scenes for him to be
    willing to opine that the same firearm fired the car-
    tridges.
    That would be the content of his opinion, and I
    would ask him the basis for it. I’ve advised him not
    to talk about exclusions and possible impracticalities
    or possibilities, and we’re not going to be going to
    a reasonable degree of anything or anything like that,
    but that would be the specific way he would articu-
    late his statement.
    The Court: Okay.
    Defense counsel objected to the government’s proposed
    wording, but the district court overruled the objection.
    When Ensor testified, he stated repeatedly that the casings
    were "fired from the same firearm." At one point he said, "If
    I go around this breech face and see that all these markings
    are matching up and phase with each other, the chances of
    that happening in a random fashion on two different surfaces,
    there comes a point where it’s a practical impossibility. . . .
    That’s when I’m convinced that these two [cartridge cases]
    were marked by the same surface." Defense counsel entered
    multiple objections during Ensor’s testimony, but the district
    court overruled all of them.
    Appellants contend that the district court erred in "permit-
    ting the government to elicit and emphasize the certainty of
    their firearms examinations." Specifically, they allege that
    Ensor’s testimony violated the district court’s order and was
    UNITED STATES v. MOUZONE                  11
    "unfairly prejudicial" because it "portrayed the defendants as
    killers and created a real danger that the jury would conclude
    that the defendants were gang members because they were
    killers."
    Although we generally review evidentiary rulings for abuse
    of discretion, United States v. Basham, 
    561 F.3d 302
    , 325 (4th
    Cir. 2009), here, "[w]e need not decide whether the district
    court erred . . . because we hold that any error would be harm-
    less," Banks, 
    482 F.3d at 741
    .
    Ensor’s testimony was incapable of effectuating the preju-
    dice that Appellants allege. To the contrary, it supported only
    the notion that the same weapon fired the casings recovered
    at each murder scene. In other words, it potentially connected
    the firearm to both murders, thereby linking the murders to
    each other, but it did not prove that Mouzone or Fleming was
    responsible for the casings at either murder. Thus, to the
    extent that the jury concluded that Appellants were killers and
    allowed that conclusion to influence their final verdict,
    Ensor’s testimony was not the cause. Moreover, the jury did
    not find murder to be a conspiracy objective, supporting the
    conclusion that it was not substantially swayed by the evi-
    dence to find that the defendants committed any murder,
    much less that because they committed one murder, they also
    committed another.
    Accordingly, we decline to reverse based on the district
    court’s admission of the testimony.
    III.
    Mouzone and Fleming next allege that the district court
    erred in charging the jury on the elements of their 
    18 U.S.C. § 1962
    (d) offense.
    Section 1962(d) makes it "unlawful for any person to con-
    spire to violate any of the provisions of [
    18 U.S.C. § 1962
    (c)]." Section 1962(c), in turn, makes it
    12                 UNITED STATES v. MOUZONE
    unlawful for any person employed by or associated
    with any enterprise engaged in, or the activities of
    which affect, interstate or foreign commerce, to con-
    duct or participate, directly or indirectly, in the con-
    duct of such enterprise’s affairs through a pattern of
    racketeering activity or collection of unlawful debt.
    At trial, Mouzone and Fleming requested the following jury
    instruction regarding their § 1962(d) RICO conspiracy
    charge: "In order to participate, directly or indirectly, in the
    conduct of such enterprise’s affairs, one must have some part
    in directing those affairs. Some part in directing the enter-
    prise’s affairs is required." Mouzone and Fleming appeal the
    district court’s denial of their request. Although we review a
    district court’s refusal to give a jury instruction for abuse of
    discretion, United States v. Lighty, 
    616 F.3d 321
    , 366 (4th Cir.
    2010), we conduct a de novo review of any claim that jury
    instructions incorrectly stated the law. United States v.
    Cherry, 
    330 F.3d 658
    , 665 (4th Cir. 2003).
    Mouzone and Fleming base their contention on Reves v.
    Ernst & Young, 
    507 U.S. 170
     (1993), where the Supreme
    Court held that liability under § 1962(c) requires an individual
    to have participated in the operation or management of an
    enterprise. Id. at 185. Thus, § 1962(c) "applies not to ‘any
    person,’ but to any person associated with an enterprise who
    participates in the operation or management of the enterprise."
    Brouwer v. Raffensperger, Hughes & Co., 
    199 F.3d 961
    , 964
    (7th Cir. 2000). Appellants claim that this standard similarly
    applies to § 1962(d) liability and that to conspire to violate
    § 1962(c), one must have a managerial role in the enterprise’s
    affairs. We disagree.
    The elements of a substantive RICO offense under
    § 1962(c) are "(1) the conduct (2) of an enterprise (3) through
    a pattern of racketeering activity." Salinas v. United States,
    
    522 U.S. 52
    , 62 (1997). A "‘pattern of racketeering activity’
    requires at least two acts of racketeering activity," 18 U.S.C.
    UNITED STATES v. MOUZONE                   13
    § 1961(5), commonly known as "predicate acts," see Salinas,
    
    522 U.S. at 62
    , and a "racketeering activity" includes "any act
    or threat involving murder, . . . robbery, . . . or dealing in a
    controlled substance . . . , which is chargeable under State law
    and punishable by imprisonment for more than one year," 
    18 U.S.C. § 1961
    (1)(A).
    Notably, however, a defendant can conspire to violate
    RICO and violate § 1962(d) without "himself commit[ing] or
    agree[ing] to commit the two or more" acts of racketeering
    activity. Salinas, 
    522 U.S. at 65
    . Rather, simply agreeing to
    advance a RICO undertaking is sufficient. That is,
    [a] conspirator must intend to further an endeavor
    which, if completed, would satisfy all of the ele-
    ments of a substantive criminal offense, but it suf-
    fices that he adopt the goal of furthering or
    facilitating the criminal endeavor. He may do so in
    any number of ways short of agreeing to undertake
    all of the acts necessary for the crime’s completion.
    
    Id.
     Of course, such an approach finds ample support in foun-
    dational conspiracy principles—namely, (1) that conspiracies
    exist even though each conspirator may not "agree to commit
    or facilitate each and every part of the substantive offense,"
    and (2) that an individual may be "liable for conspiracy even
    though he was incapable of committing the substantive
    offense." 
    Id. at 63-64
    .
    Reasoning from these principles, we today join all of our
    sister circuits that have considered this issue and hold that
    § 1962(d) liability does not require that a defendant have a
    role in directing an enterprise. See United States v. Wilson,
    
    605 F.3d 985
    , 1019 (D.C. Cir. 2010); United States v. Fernan-
    dez, 
    388 F.3d 1199
    , 1230 (9th Cir. 2004); Smith v. Berg, 
    247 F.3d 532
    , 537–38 (3d Cir. 2001); United States v. Zichettello,
    
    208 F.3d 72
    , 99 (2d Cir. 2000); Brouwer, 
    199 F.3d at 967
    ;
    United States v. Posada-Rios, 
    158 F.3d 832
    , 857-58 (5th Cir.
    14                 UNITED STATES v. MOUZONE
    1998). Just as a conspirator need not himself commit or agree
    to commit the predicate acts required under § 1962(c), he also
    is not required to play the managerial role required for
    § 1962(c) liability.
    We caution that the RICO conspiracy statute does not
    "criminalize mere association with an enterprise." Brouwer,
    
    199 F.3d at 965
    . Rather, as with traditional conspiracy, crimi-
    nal liability will attach only to the knowing "agreement to
    participate in an endeavor which, if completed would consti-
    tute a violation of the substantive statute." Goren v. New
    Vision Int’l, Inc., 
    156 F.3d 721
    , 732 (7th Cir. 1998). Thus, to
    satisfy § 1962(d), the government must prove that an enter-
    prise affecting interstate commerce existed; "that each defen-
    dant 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." Wilson, 
    605 F.3d at
    1018–19; see
    also Posada-Rios, 
    158 F.3d at 857
     ("To prove a RICO con-
    spiracy[,] the government must establish (1) that two or more
    people agreed to commit a substantive RICO offense and (2)
    that the defendant knew of and agreed to the overall objective
    of the RICO offense."). Consequently, because we hold that
    a defendant need not have a managerial role in an enterprise
    to be convicted of violating § 1962(d), we conclude that the
    district court did not err in declining the defendants’ requested
    jury instruction.
    IV.
    Fleming also avers that the district court erred in denying
    his pretrial motion to sever, alleging (1) that the government
    improperly joined under Federal Rule of Criminal Procedure
    8(a) his charge for cocaine distribution and possession with
    intent to distribute with his RICO charge, and (2) that even if
    the government properly joined these counts, the district court
    UNITED STATES v. MOUZONE                   15
    should have severed them under Federal Rule of Criminal
    Procedure 14.
    "Whether offenses in an indictment are improperly joined
    under Rule 8(a) is a question of law reviewed de novo."
    United States v. Cardwell, 
    433 F.3d 378
    , 384–85 (4th Cir.
    2005). Moreover, "[w]e will not reverse a district court’s
    denial of a motion to sever unless there is a showing of ‘clear
    prejudice.’" United States v. Hornsby, 
    666 F.3d 296
    , 309 (4th
    Cir. 2012) (quoting United States v. Branch, 
    537 F.3d 328
    ,
    341 (4th Cir. 2008)).
    A.
    Federal Rule of Criminal Procedure 8 permits the govern-
    ment for the sake of efficiency to "charge a defendant in sepa-
    rate counts with [two] or more offenses if the offenses
    charged . . . are of the same or similar character, or are based
    on the same act or transaction, or are connected with or con-
    stitute parts of a common scheme or plan." Fed. R. Crim. P.
    8(a). Previously, "[w]e have interpreted the latter two prongs
    of this rule flexibly, requiring that the joined offenses have a
    ‘logical relationship’ to one another." Cardwell, 
    433 F.3d at 385
     (quoting United States v. Hirschfeld, 
    964 F.2d 318
    , 323
    (4th Cir. 1992)). Nevertheless, we also have recognized that
    "Rule 8(a) is ‘not infinitely elastic,’ . . . because unrelated
    charges create the possibility that a defendant will be con-
    victed based on considerations other than the facts of the
    charged offense." 
    Id.
     (quoting United States v. Mackins, 
    315 F.3d 399
    , 412 (4th Cir. 2003)).
    Here, Fleming contends that his cocaine distribution and
    possession charge "clearly bore no relationship to the RICO
    count" and that "by all accounts, [on April 24, 2007, he] was
    acting on his own, was not the subject of a federal investiga-
    tion, was not wearing anything remotely resembling gang
    clothing, was not armed[,] and was not working with any
    other person." The government contends, however, that it
    16                 UNITED STATES v. MOUZONE
    properly joined all three of Fleming’s counts because the
    RICO conspiracy count "charged that the purposes of the TTP
    enterprise included preserving the power of the enterprise
    through narcotics trafficking, and alleged that it was part of
    the TTP enterprise that members of the gang engaged in drug-
    trafficking." Moreover, "Count One explicitly alleged that the
    April 24, 2007[,] narcotics possession was an overt act by
    Fleming in furtherance of the racketeering conspiracy." We
    agree with the government.
    The indictment alleges a sufficient relationship between the
    RICO conspiracy count and the drug distribution count, and
    at trial, the government presented ample evidence showing
    that selling drugs was an activity in which TTP members
    engaged to support the gang and rise in its ranks. Further-
    more, the government’s assertion that distribution of cocaine
    was a predicate offense of the RICO conspiracy made its join-
    der to the RICO count appropriate. See United States v. Car-
    son, 
    455 F.3d 336
    , 373 (D.C. Cir. 2006); United States v.
    Irizarry, 
    341 F.3d 273
    , 289–90 (3d Cir. 2003).
    B.
    Having determined that the government properly joined
    Fleming’s charges, we address whether Fleming has shown
    "clear prejudice" by such joinder.
    Simply put, nothing about the joinder of Fleming’s counts
    bespeaks "clear prejudice." The government presented ample
    evidence to support each count, and the district court
    instructed the jury to weigh the evidence as to each count
    individually. Moreover, Fleming’s brief to this court com-
    plains of prejudice, but fails to cite any specific indicia of
    prejudicial effect. Accordingly, we affirm the district court’s
    denial of Fleming’s motion to sever.
    V.
    Fleming asserts the following three errors with respect to
    his sentence: (1) the district court erred in determining that the
    UNITED STATES v. MOUZONE                   17
    Lamont Jackson murder constituted relevant conduct for the
    purpose of calculating his combined base offense level under
    the Sentencing Guidelines; (2) the district court improperly
    found that he was subject to an enhanced mandatory mini-
    mum for a prior "felony drug offense"; and (3) the Fair Sen-
    tencing Act should have been applied retroactively to his
    sentence. We reject each contention.
    A.
    At sentencing, the district court increased Fleming’s
    offense level from 19 to 43 because it determined that "more
    likely than not[,] . . . Mr. Fleming killed [Lamont] Jackson
    and that [the] murder [was] relevant and related conduct in
    setting the guidelines range." Fleming avers that the district
    court lacked sufficient evidence to conclude that he killed
    Jackson and that it erred in determining that the Jackson mur-
    der constituted relevant conduct for the purpose of calculating
    his combined offense level.
    We review district court sentences only for reasonableness.
    United States v. Llamas, 
    599 F.3d 381
    , 387 (4th Cir. 2010).
    We examine whether "the district court committed [any] sig-
    nificant procedural error, such as . . . improperly calculating
    . . . the Guidelines range . . . [or] selecting a sentence based
    on clearly erroneous facts." Gall v. United States, 
    552 U.S. 38
    , 51 (2007). "In this regard, we review the court’s factual
    findings for clear error . . . [and] its legal conclusions de
    novo." United States v. Strieper, 
    666 F.3d 288
    , 292 (4th Cir.
    2012). Moreover, "[u]nder the clear error standard of review,
    we ‘will only reverse if left with the definite and firm convic-
    tion that a mistake has been committed.’" United States v.
    Chandia, 
    675 F.3d 329
    , 337 (4th Cir. 2012) (quoting United
    States v. Slade, 
    631 F.3d 185
    , 188 (4th Cir. 2011)).
    The base offense level for a defendant convicted of racke-
    teering conspiracy is the greater of 19 or "the offense level
    applicable to the underlying racketeering activity." U.S.S.G.
    18                 UNITED STATES v. MOUZONE
    § 2E1.1. In evaluating the offense level applicable to the
    underlying activities pursuant to § 3D1.2(d), the district court
    may group "[a]ll counts involving substantially the same
    harm," including counts where "the offense behavior is ongo-
    ing or continuous in nature and the offense guideline is writ-
    ten to cover such behavior." Id. § 3D1.2(d). Thus, as an initial
    matter, we note that the district court properly grouped Flem-
    ing’s charges for sentencing purposes.
    When offenses are grouped under § 3D1.2(d), the district
    court considers as relevant conduct "all acts and omissions . . .
    that were part of the same course of conduct or common
    scheme or plan as the offense of conviction." Id.
    § 1B1.3(a)(2).
    Of course, Fleming contends that the district court lacked
    sufficient evidence to find that he murdered Jackson. But at
    trial, the government presented ample testimony, via Brady,
    Smith, and Brice, that Fleming committed the crime. And
    while we recognize that the jury declined to find that Fleming
    murdered Jackson, we also affirm the district court’s entitle-
    ment to make its own findings, supported by a preponderance
    of the evidence, regarding Fleming’s offenses for sentencing
    purposes. See United States v. Montgomery, 
    262 F.3d 233
    ,
    249 (4th Cir. 2001). Here, given that the government pre-
    sented evidence that Fleming murdered Jackson to avenge
    another TTP member, the district court properly considered
    the murder relevant (i.e., part of the same course of conduct
    or common scheme or plan).
    Thus, we conclude that the district court did not clearly err
    in determining that Fleming’s combined offense level was 43,
    the level corresponding to murder.
    B.
    When the district court sentenced Fleming, 
    21 U.S.C. § 841
    (b)(1)(A) provided that the penalty for distribution of or
    UNITED STATES v. MOUZONE                    19
    conspiracy to distribute fifty grams or more of cocaine was
    imprisonment for a minimum of ten years and a maximum of
    life. The statute also provided, however, for a sentence
    enhancement increasing the mandatory minimum to twenty
    years if the defendant had a "prior conviction for a felony
    drug offense."
    A "felony drug offense" is "an offense that is punishable by
    imprisonment for more than one year under any law of the
    United States or of a State . . . that prohibits or restricts con-
    duct relating to narcotic drugs, marihuana, anabolic steroids,
    or depressant or stimulant substances." 
    21 U.S.C. § 802
    (44).
    Here, Fleming’s presentencing report indicates that he was
    sentenced to two years’ imprisonment with eighteen months’
    probation for a Maryland drug violation. Accordingly, the dis-
    trict court enhanced Fleming’s sentence range to a minimum
    of twenty years’ imprisonment and a maximum of life.
    Citing our recent decision in United States v. Alston, 
    611 F.3d 219
     (4th Cir. 2010), Fleming contends that the district
    court erred in applying the enhancement because the Mary-
    land conviction on which it relied derived from an Alford
    plea. North Carolina v. Alford, 
    400 U.S. 25
    , 37 (1970) (per-
    mitting a defendant to enter a plea of guilty without acknowl-
    edging culpability for the charged conduct). We review this
    pure question of law de novo. United States v. Burgess, 
    478 F.3d 658
    , 661 (4th Cir. 2007), and find that Alston fails to
    apply here.
    In Alston, we considered whether a prosecutor’s proffer of
    facts from the transcript of an Alford plea proceeding could
    serve as sufficient proof that the assault to which the defen-
    dant pled guilty was an assault that qualified as a violent fel-
    ony under the Armed Career Criminal Act. Alston, 
    611 F.3d at 220-21
    . Ultimately, we held that the prosecutor’s proffer of
    facts was insufficient to qualify the offense because (1) the
    defendant did not admit to the facts, and (2) the proffered
    facts were not "inherent in a Maryland conviction for second-
    20                UNITED STATES v. MOUZONE
    degree assault." 
    Id. at 221
    . Notably, however, Alston does not
    categorically prohibit the use of a conviction obtained from an
    Alford plea as a predicate offense for a statutory enhancement.
    See United States v. King, 
    673 F.3d 274
    , 281-82 (4th Cir.
    2012). Rather, it bars a "prosecutor’s proffer of the factual
    basis for an Alford plea [from being] later . . . used . . . to
    identify the resulting conviction as an ACCA predicate." Id.
    at 227.
    Here, the district court relied simply on the fact of convic-
    tion, not on the prosecutor’s version of facts from the plea
    colloquy, to determine that Fleming’s Maryland conviction
    qualified as a predicate offense. And because Fleming’s plea
    involved a drug offense that was punishable by imprisonment
    for more than one year, it qualified as a predicate under 
    21 U.S.C. § 841
    (b)(1)(A). The conviction itself satisfied the
    requirement for a predicate offense, so there was no need to
    consider the underlying facts. For this reason, Alston has no
    bearing on this case. Thus, we find no error in the district
    court’s enhancement.
    C.
    Finally, Fleming contends that the Fair Sentencing Act of
    2010 should be applied retroactively to his sentence. We dis-
    agree. The Act took effect on August 3, 2010, and although
    in some instances it applies retroactively, see Dorsey v.
    United States, No. 11-5683, slip op. at 19 (U.S. June 21,
    2012), the timing of Fleming’s crimes and sentencing fail to
    meet the criteria for such application. Fleming was sentenced
    on July 9, 2010, and the Act applies retroactively only to "of-
    fenders whose crimes preceded August 3, 2010, but who are
    sentenced after that date." 
    Id. at 11
    ; see also United States v.
    Bullard, 
    645 F.3d 237
    , 248–49 (4th Cir. 2011). Thus, we
    affirm Fleming’s sentence as determined by the district court.
    VI.
    For the foregoing reasons, we affirm.
    AFFIRMED
    

Document Info

Docket Number: 10-4781, 10-4814

Citation Numbers: 687 F.3d 207, 2012 WL 3039215

Judges: Keenan, Wynn, Floyd

Filed Date: 7/26/2012

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (32)

united-states-v-donnie-montgomerydefendant-appellant-united-states-of , 262 F.3d 233 ( 2001 )

United States v. Thomas Zichettello, Frank Richardone, ... , 208 F.3d 72 ( 2000 )

United States v. Gregory Wayne Banks , 482 F.3d 733 ( 2007 )

United States v. Keith Lavon Burgess, A/K/A Buck Black , 478 F.3d 658 ( 2007 )

North Carolina v. Alford , 91 S. Ct. 160 ( 1970 )

Bullcoming v. New Mexico , 131 S. Ct. 2705 ( 2011 )

United States v. Hornsby , 666 F.3d 296 ( 2012 )

United States v. John Wayne Cardwell, United States of ... , 433 F.3d 378 ( 2005 )

United States v. Strieper , 666 F.3d 288 ( 2012 )

judith-goren-individually-and-on-behalf-of-all-others-similarly-situated , 156 F.3d 721 ( 1998 )

United States v. Slade , 631 F.3d 185 ( 2011 )

United States v. Chandia , 675 F.3d 329 ( 2012 )

virginia-e-brouwer-wesley-baxter-alberta-e-haessig-hardy-hicks-jr , 199 F.3d 961 ( 2000 )

Gall v. United States , 128 S. Ct. 586 ( 2007 )

United States v. Llamas , 599 F.3d 381 ( 2010 )

United States v. Basham , 561 F.3d 302 ( 2009 )

United States v. Elvis Irizarry , 341 F.3d 273 ( 2003 )

United States v. King , 673 F.3d 274 ( 2012 )

United States v. Richard M. Hirschfeld , 964 F.2d 318 ( 1992 )

United States v. Carson, Samuel , 455 F.3d 336 ( 2006 )

View All Authorities »