US v. Kentrell McIntyre, No. 14-4186 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4186 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KENTRELL TYRONE MCINTYRE, a/k/a Mustafa,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-00188FDW-DSC-9; 3:12-cr-00188-FDW-DSC-28; 3:12-cr-00188-FDW-DSC-13) Submitted: January 29, 2016 Before AGEE and Circuit Judge. WYNN, Decided: Circuit Judges, and February 9, 2016 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: A federal jury convicted Kentrell Tyrone McIntyre, Jamiel Kenzie Davidson, Perry Gorontent Williams, and Nathaniel Graham, of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). months The district court sentenced McIntyre to a total of 192 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. (4th Cir. 2006). United States v. Smith, 451 F.3d 209, 216 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 3 (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.” quotation marks omitted). Furthermore, Id. (internal “[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.” (4th Cir.), quotation include cert. marks any United States v. Cornell, 780 F.3d 616, 621 denied, and act 136 S. alterations or threat Ct. 127 omitted). involving (2015) (internal Racketeering murder, acts kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or felony § 1961(1) (2012). controlled substance offenses. 18 U.S.C. Completion of any overt act is not an element of a RICO conspiracy offense; rather the Government need only demonstrate that the conspirators 4 agreed to pursue the same 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 commit prove a that murder the for Appellants the maintaining or engaged racketeering in agreed purpose increasing their of with gaining positions activity. See in each entrance an United Basciano, 599 F.3d 184, 198-99 (2d Cir. 2010). other to to or enterprise States v. 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.” Cir. 2010). The United States v. Green, 599 F.3d 360, 370 (4th defendant bears withdrawal from the conspiracy. the burden Id. at 370. reviewed the record and the relevant conclude that there was substantial of proving his We have thoroughly legal evidence authorities and to the support jury’s verdicts of guilt as to both counts. Williams also challenges the district court’s order denying his motion to appoint substitute counsel. of a motion for substitute counsel for We review the denial 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 5 total lack of communication preventing an adequate defense. Id. at abuse its counsel for 466-67. discretion We in conclude refusing that to the court appoint did not substitute 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 substantial rights.” (4th Cir. 2007). plain, and (3) the error affected [his] United States v. Wilson, 484 F.3d 267, 279 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 6 substantively reasonable. 266 (4th Cir. 2009). United States v. Heath, 559 F.3d 263, 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”. (2007). Gall v. United States, 552 U.S. 38, 51 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. reject McIntyre’s argument. The district court We properly calculated the advisory Guidelines range and sentenced McIntyre within that range. Davidson substantively variant or asserts on unreasonable. departure appeal If sentence, a it that his district must sentence court provide imposes is a sufficient justification to support the degree of variance, although need 7 not find that extraordinary circumstances exist. States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). based on our review provided sufficient sentence. Based of the record that on justification the court’s to the sentence is substantively reasonable. We conclude district support stated United the court chosen justification, the 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 conclusions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid in the decisional process. AFFIRMED 8

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