United States v. Terrance Brown, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4295

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TERRANCE NATHANIEL BROWN, JR., a/k/a War, a/k/a War Stone, a/k/a Luciano,

Defendant – Appellant.

No. 18-4316

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL JONES, a/k/a M. Stone,

Defendant – Appellant.

No. 18-4317

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 Western District of Virginia, at

Roanoke. Michael F. Urbanski, Chief District Judge. (7:16-cr-30026-MFR-4; 7:16-cr-

30026-MFU-1; 7:16-cr-30026-MFU-5)

Argued: January 31, 2020 Decided: May 1, 2020

Before WILKINSON, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Thacker wrote an opinion dissenting

in part.

ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,

Roanoke, Virginia; Juval Orisha Scott, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Roanoke, Virginia; Lawrence Hunter Woodward, Jr., RULOFF, SWAIN,

HADDAD, MORECOCK, TALBERT & WOODWARD, P.C., Virginia Beach, Virginia,

for Appellants. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee. ON BRIEF: Frederick T. Heblich, Jr., Interim Federal

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville,

Virginia, for Appellants. Brian A. Benczkowski, Assistant Attorney General, Matthew S.

Miner, Deputy Assistant Attorney General, Marianne Shelvey, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas T. Cullen, United States

Attorney, Roanoke, Virginia, Grayson A. Hoffman, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:

Co-defendants Michael Jones, Terrance Brown, and Clifford Alexander Jennings

(collectively “Defendants-Appellants”) challenge their convictions for conspiracy to

distribute heroin, cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841

and 846. In addition, Brown contends the district court erred by dismissing without

prejudice two counts of violent crimes in aid of racketeering and two related firearms

counts, arguing that dismissal should have been with prejudice because the court acted in

the context of a Federal Rule of Criminal Procedure 29 challenge to the Government’s

evidence establishing venue. Lastly, Brown and Jennings challenge the procedural

reasonableness of their sentences, claiming the district court miscalculated their Sentencing

Guidelines ranges by attributing an excessive drug weight to their offense conduct. Because

no reversible errors occurred, we affirm.

I.

The Defendants-Appellants are members of the Mad Street Bloods (“MSBs”), a

gang founded in Rikers Island prison that still is centrally run out of New York City. The

MSBs have a pyramid hierarchy structure with tiers of leadership within various sets. The

head of each set is known as a Godfather. Jones was a Godfather of one New York set, the

Mad Stone Henchmen. The New York MSBs oversee sets and members in other states,

including Virginia.

While less tightly run as the New York MSBs, the Virginia MSBs have a similar

pyramid structure with tiers of leadership within similarly named sets. Brown was an acting

3

Godfather of one Virginia set until the New York MSBs demoted him, and Jennings was

also a Godfather of a Virginia set.

In 2012, law enforcement began using Adrienne Williams—a member of a female

set of MSB in Virginia—as a confidential informant. She continued in that role, for which

she was paid, for four years. Throughout that time, law enforcement had Williams

coordinate controlled buys of illegal drugs, and she wore a wire for hundreds of recorded

conversations with both New York and Virginia MSB members, including conversations

with Jones, Brown, and Jennings.

In 2016, twelve MSB members were named in an indictment, which was later

superseded, in the U.S. District Court for the Western District of Virginia, alleging

violations of federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) and

drug laws, as well as related underlying substantive offenses. The Defendants-Appellants

exercised their right to a jury trial and were tried together. At the close of the Government’s

case, Brown moved for a judgment of acquittal on the four underlying substantive counts,

arguing the Government failed to prove venue was proper in the Western District of

Virginia. The district court agreed and dismissed the four firearms charges without

prejudice. As a result, the court charged the jury with deciding only two counts for each of

the Defendants-Appellants: conspiracy to violate RICO and drug conspiracy. The jury

found each one not guilty of the RICO conspiracy and guilty of the drug conspiracy.

Thereafter, the district court conducted individualized sentencing hearings for the

Defendants-Appellants. It sentenced Jones to 41 months’ imprisonment, Brown to 240

months’ imprisonment, and Jennings to 144 months’ imprisonment.

4

Jones, Brown, and Jennings noted timely appeals, which the Court consolidated for

briefing and argument. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

II.

A.

We begin by considering two challenges to the sufficiency of the evidence to

support the convictions. First, the Defendants-Appellants challenge the sufficiency of the

evidence to support their drug conspiracy conviction, arguing the evidence adduced at trial

was insufficient to prove the existence of the single, overarching conspiracy alleged in the

indictment. They do not assert the existence of a variance between the indictment and the

trial evidence; instead, they contend the evidence supported three discrete conspiracies

rather than the one overarching conspiracy charged in the indictment. Second, Jones

contends that the evidence was insufficient to prove that he knowingly and voluntarily

joined the charged drug conspiracy, arguing that he acted solely in New York and never

became part of the charged Virginia drug conspiracy. Neither argument has merit.

In this context, although we review de novo a district court’s denial of a motion for

judgment of acquittal, United States v. Zelaya, 908 F.3d 920, 925 (4th Cir. 2018), we

review the underlying verdict for substantial evidence, United States v. Burfoot, 899 F.3d

326, 334 (4th Cir. 2018). This means that we will affirm if, viewing the evidence in the

light most favorable to the government, there “is evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of a defendant’s guilt

5

beyond a reasonable doubt.” United States v. Bran, 776 F.3d 276, 279 (4th Cir. 2015). In

undertaking our review, we cannot “assess witness credibility, and we assume that the jury

resolved any conflicting evidence in the prosecution’s favor.” United States v. Savage, 885

F.3d 212, 219 (4th Cir. 2018) (internal quotation marks omitted). To reverse, “the

prosecution’s failure [must be] clear.” United States v. Palomino-Coronado, 805 F.3d 127,

130 (4th Cir. 2015) (internal quotation marks omitted).

To establish the charged drug conspiracy, the Government was required to prove

beyond a reasonable doubt that “(1) an agreement [to distribute and possess with intent to

distribute controlled substances] existed between two or more persons; (2) the defendant

knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of

this conspiracy.” United States v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011) (internal

quotation marks omitted). “[A] single overall conspiracy can be distinguished from

multiple independent conspiracies based on the overlap in actors, methods, and goals.”

United States v. Bartko, 728 F.3d 327, 344–45 (4th Cir. 2013) (internal quotation marks

omitted). “A single conspiracy exists where there is one overall agreement, or one general

business venture,” United States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003) (internal

quotation marks omitted). A single drug conspiracy exists if the defendant “was part of a

loosely-knit association of members linked only by their mutual interest in sustaining the

overall enterprise of catering to the ultimate demands of a particular drug consumption

market.” United States v. Howard, 773 F.3d 519, 526 (4th Cir. 2014) (internal quotation

marks omitted). Importantly, “[t]he question whether the evidence shows a single

6

conspiracy or multiple conspiracies . . . is one of fact and is properly the province of the

jury.” United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988).

Applying these principles to this case, we observe that the jury was adequately

instructed on this issue and we will not disturb its finding that the evidence was sufficient

to establish the single, charged conspiracy rather than multiple conspiracies. The district

court gave the jury a detailed multiple-conspiracies instruction in addition to standard

instructions concerning conspiracy and drug offenses. Here, “as in all cases, juries are

presumed to follow the court’s instructions.” CSX Transp., Inc. v. Hensley, 556 U.S. 838,

841 (2009). There is nothing in the record to indicate the jury was unable to make the

factual finding that the Government’s evidence proved the single charged conspiracy and

rejected the Defendants-Appellants’ arguments about multiple conspiracies. 1

Further, the evidence shows that sufficient evidence of the charged conspiracy exists

when viewing the record as a whole, and it was proven by more than MSB membership

alone. Upon our independent review of the record—and construing the evidence, as we

must, cumulatively and in the light most favorable to the Government—we find substantial

evidence to support the conclusion that Jones, Brown, and Jennings each participated in a

1

The Defendants-Appellants point to the fact the jury did not have a copy of the

indictment during deliberations. But the record shows the court read, nearly verbatim, the

indictment’s language describing the charged drug conspiracy. What’s more, nothing in

the record suggests that the jury would have been unable to apply the multiple conspiracies

instruction or understand counsel’s arguments without a copy of the indictment during

deliberations. As such, the district court also acted within its discretion by declining to

provide the jury with a copy of the indictment. See United States v. Polowichak, 783 F.2d

410, 413 (4th Cir. 1986) (“The submission of an indictment to the jury is a discretionary

matter with the district court.”).

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single, overarching conspiracy of MSB members to distribute and possess with intent

distribute controlled substances. Their arguments seek to review isolated pieces of the

record and suggest that those pieces could be analyzed differently; that approach turns

sufficiency review on its head. When evaluating the sufficiency of the evidence, we must

“not examine evidence in a piecemeal fashion, but consider it in cumulative context” to

discern “the complete picture that the evidence presents.” United States v. Burgos, 94 F.3d

849, 863 (4th Cir. 1996) (en banc); see id. (“Critical to our review . . . is the complete

picture that the evidence presents. . . . We must not rend the garment of which the evidence

is woven lest we analyze each individual fiber in isolation.” (emphasis added)).

Here, the testimony of co-conspirators, cooperating witness Williams, and recorded

conversations involving (at various times) each of the Defendants-Appellants connected

each one to the sort of “tacit or mutual understanding” required to prove a conspiracy as

opposed to merely parallel, yet separate, acts. See United States v. Gomez-Jimenez, 750

F.3d 370, 378 (4th Cir. 2014) (internal quotation marks omitted) (recognizing that, given

the clandestine nature of illicit conspiracies, the requisite agreement “need not be formal

and may instead be a tacit or mutual understanding between the defendant and” other

conspirators). Among other things, the evidence showed MSB members fronted drugs to

each other, provided good rates to MSB members, and facilitated additional sales to each

other based on the understanding that doing so “provid[ed] ways for other gang members

to make money.” J.A. 757. Further, New York MSB members sold—and facilitated the

sale of—drugs to various Virginia MSB members for resale in Virginia, provided guidance

and orders connecting gang rank within the gang to drug sales, and encouraged running a

8

“tight[]” drug-sale operation in Virginia. J.A. 2355. And, most importantly, the record

connects each of the Defendants-Appellants to various aspects of the charged drug

conspiracy, demonstrating more than a “slight connection” to it, which was sufficient to

support their conviction for that offense. Burgos, 94 F.3d at 861 (internal quotation marks

omitted); United States v. Nunez, 432 F.3d 573, 578 (4th Cir. 2005) (“Often, the single

conspiracy is comprised of a loosely-knit association of members linked only by their

mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a

particular drug consumption market.” (internal quotation marks omitted)).

For related reasons, Jones’ challenge to the sufficiency of the evidence that he

knowingly and voluntarily participated in this conspiratorial agreement also fails.

Important to conspiracy law is our recognition that “one may be a member of a conspiracy

. . . without taking part in the full range of its activities or over the whole period of its

existence.” United States v. Allen, 716 F.3d 98, 103 (4th Cir. 2013) (internal quotation

marks omitted). “[O]nce a conspiracy has been proved, the evidence need only establish a

slight connection between any given defendant and the conspiracy to support conviction.”

Id. Once again, the record adduced at trial, as a whole and viewed in the light most

favorable to the Government, allows for the conclusion that Jones knowingly and

voluntarily participated in the charged conspiracy. See Burgos, 94 F.3d at 863. Jones was

the godfather of one New York MSB set; he provided guidance to individuals in the

Virginia MSB regarding how to sell drugs and avoid detection; and he facilitated drug deals

for them. While Jones is correct that, as a matter, of law, a mere buyer-seller relationship

9

is insufficient and that cooperating witness Williams cannot be one of the co-conspirators,

the evidence against him went well beyond those circumstances.

For these reasons, substantial evidence supports the Defendants-Appellants’

convictions for the drug conspiracy.

B.

Next, Brown contends that the district court erred in dismissing the four underlying

substantive offenses without prejudice after it granted his Rule 29 motion for judgment of

acquittal. Brown asserts that the counts should have been dismissed with prejudice, so as

to bar re-prosecution, because the Government’s failure to prove venue occurred at trial,

after jeopardy had attached. See Evans v. Michigan, 568 U.S. 313, 319 (2013) (discussing

the Double Jeopardy Clause barring retrial following an “acquittal,” but not barring retrial

following a “procedural dismissal[]”).

Prior to argument, we directed the parties to file supplemental briefs related to this

claim, at which point the Government argued that changed circumstances since initial

briefing had rendered the issue moot. Specifically, the Government indicated that after

these counts had been dismissed without prejudice in the Western District, the U.S.

Attorney for the Eastern District of Virginia obtained an indictment against Brown that

included the dismissed counts. It further indicated that a jury trial had already occurred and

that Brown had been acquitted on all four counts, meaning that he could not be re-

prosecuted for those charges regardless of the Court’s holding in this appeal. The

Government asserted that under these circumstances, “a ruling by this Court . . . would give

10

Brown no practical relief,” and the Court should conclude that the issue is moot. Gov.

Supp. Br. 3.

Brown acknowledges these basic facts in his supplemental brief, but asserts the issue

is not moot because the four counts for which he was indicted and tried in the Eastern

District are not identical to the Western District counts even though they involve the same

conduct. He maintains that obtaining a dismissal with prejudice in this case would reassure

him that the Government would not attempt to re-prosecute him. He also contends, for the

first time, that the district court may have sentenced him differently if it knew dismissal

should have been with prejudice rather than without prejudice. But he admits that a district

court is free to consider acquitted conduct and dismissed counts (with or without prejudice)

in imposing a sentence.

We agree with the Government that Brown’s retrial and acquittal in the Eastern

District renders this issue moot. A claim is moot “when the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455

U.S. 478, 481 (1982) (internal quotation marks omitted). Brown raises an issue that is “no

longer live” and he lacks a “legally cognizable interest in the outcome” because he has

already been re-prosecuted in the Eastern District, so it would come too late to prevent re-

prosecution. Id. What’s more, Brown’s acquittal in that case provides independent

assurance that he cannot be re-prosecuted on these charges. Lastly, he has waived review

of his argument about resentencing because the Court will not ordinarily consider an issue

raised for the first time in the case in a supplemental brief. See Cavallo v. Star Enter., 100

F.3d 1150, 1152 n.2 (4th Cir. 1996) (stating “an issue first argued in a reply brief is not

11

properly before a court of appeals”); see also United States v. Leeson, 453 F.3d 631, 638

n.4 (4th Cir. 2006) (applying this rule to supplemental filings).

C.

Lastly, both Brown and Jennings argue the district court committed reversible

procedural error when calculating their advisory Sentencing Guidelines range.

Specifically, Brown asserts the district court committed reversible error by holding him

responsible for the equivalent of 180 kilograms of marijuana sold by a co-conspirator

because not all of that amount should have been attributed to him as relevant conduct.

Jennings, in turn, contends the district court erred in holding him accountable for 400–700

grams of heroin sold by a co-conspirator because the record only established his

involvement in the sale of cocaine. 2

1.

The Court reviews the reasonableness of a sentence under a “deferential abuse-of-

discretion standard,” and improperly calculating the Guidelines range may be a “significant

procedural error” that requires the Court to vacate the sentence and remand for

2

In addition, Jennings contends that the district court failed to give adequate notice

of its intent to vary upward based on inadequacy of his criminal history. He did not raise

this argument below, so we review it for plain error. See United States v. McClung, 483

F.3d 273, 276 (4th Cir. 2007). Regardless, the district court committed no error at all

because it was not required to provide notice before imposing a variant sentence under 18

U.S.C. § 3553(a). Irizarry v. United States, 553 U.S. 708, 714–15 (2008). While a district

court must provide reasonable notice of its intent to “depart” from the Guidelines, Fed. R.

Crim. P. 32(h), the Supreme Court has recognized a firm distinction between departure

sentences under the Guidelines and variant sentences under the § 3553(a) factors. Irizzary,

553 U.S. at 714–15. As such, Jennings’ argument lacks merit.

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resentencing. United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014). But we have also

recognized that in certain circumstances any error committed by the district court in

calculating a defendant’s drug weight is harmless. Under an “assumed error harmlessness”

analysis, we “may assume that a sentencing error occurred and proceed to examine whether

the error affected the sentence imposed.” United States v. McDonald, 850 F.3d 640, 643

(4th Cir. 2017). For us to deem a Guidelines error harmless, we must determine: “(1) the

district court would have reached the same result even if it had decided the [G]uidelines

issue the other way, and (2) the sentence would have been reasonable even if the

[G]uidelines issue had been decided in the defendant’s favor.” Gomez-Jimenez, 750 F.3d

at 382 (internal quotation marks omitted). Here, even if we assume error as to Jennings,

any such error was harmless.

The first requirement, that the district court would reach the same result even if the

Guidelines had been calculated in the way advocated by Jennings, is plainly met. When the

district court sentenced Jennings it repeatedly stated that its drug weight determinations

did not affect its sentencing decision, that its sentence was based on the § 3553(a) factors

irrespective of its decisions concerning the drug weight and Guidelines calculation, and

that it would have imposed the same upward variant sentence regardless of the Guidelines. 3

3

For example, when sentencing Jennings, the district court explained,

At the end of the day in this case, my sentence is going to be based on the

3553(a) factors . . . . This drug weight calculation is only a little piece of it.

Okay? It’s a place to start. But there’s a lot of other things to be considered.

And whether I find . . . below 400 grams or whether I find over 700 grams or

(Continued)

13

This record unequivocally establishes that, for the district court, the Guidelines calculation

played a necessary, but ultimately negligible, role in sentencing Jennings. That is more

than sufficient to satisfy the first prong of assumed-error harmlessness review.

As for the second requirement, we conclude that Jennings’ sentence would have

been substantively reasonable even if his Guidelines range had been based on the lower

drug weights that he advocated. When sentencing Jennings to an upward variant sentence

of 144 months’ imprisonment, the district court provided a detailed explanation of the

applicable § 3553(a) factors influencing its decision. For example, the district court

discussed the seriousness of the offense, Jennings’ history and characteristics, and the need

for deterrence, promoting respect for the law, and protecting the public. The court

emphasized Jennings’ unabated life of crime, which had been undeterred by numerous

prior offenses that had not been considered as part of his Guidelines range. And it

determined that Jennings’ history made an upward variant sentence appropriate to protect

the public from his continued criminal behavior. Considering the totality of the

circumstances, we conclude that Jennings’ sentence also was substantively reasonable,

even if the amount of the upward variance would have been somewhat greater under the

Guidelines range calculation Jennings advocated. For this reason, we affirm Jennings’

sentence under an assumed-error harmlessness review.

whether I find in the middle, I’m going to come out on the sentence in the

same place—okay?—under the 3553(a) factors, as I will explain.

J.A. 3155–56.

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2.

We also affirm Brown’s sentence under that same standard. But first, we address

the procedural error Brown alleges occurred in his sentencing. The probation officer who

prepared Brown’s PSR attributed the equivalent of 180 kilograms of marijuana to him as

“relevant conduct” under § 1B1.3(a)(1)(B) of the Sentencing Guidelines based on Brown

being acting Godfather of a Virginia set and therefore having a leadership role over indicted

co-conspirator Corey Owens and the drug amounts Owens had stipulated to selling in his

plea agreement. 4 Specifically, Owens had stipulated that during the course of the drug

conspiracy he had sold 80 to 100 kilograms of marijuana and cocaine in an amount

equivalent to 100 to 400 kilograms of marijuana. See J.A. 2994. As such, Brown’s PSR

used the lower values in those ranges to set Brown’s attributed drug weight.

At sentencing, Brown objected, arguing, in relevant part, that no evidence connected

him to any of Owens’ drug sales and that his own sales had been significantly smaller

quantities of marijuana. To support this argument, Brown called Owens to testify at the

hearing, at which point Owens claimed he was never Brown’s subordinate, he’d never seen

Brown sell any drugs, and that he’d lied in his plea agreement about selling any cocaine

and about the amount of marijuana he’d sold in order to avoid going to trial and risking

greater time in prison. But on cross-examination, Owens admitted signing a plea agreement

in which he admitted to selling the drug quantities stipulated in his plea agreement. J.A.

4

For instance, evidence introduced at trial included Brown calling Owens his “right-

hand man.” J.A. 1693, and on one occasion Brown and Owens wagered over who could

sell the most “dope” in one day. J.A. 2595.

15

2994. The district court did not credit any portion of Owens’s testimony at sentencing,

finding him to be completely “incredible and in contrast with the statements that he made

when he pled guilty in this case.” J.A. 3049.

The Government called Agent Farr to summarize statements from both confidential

informant Williams and co-conspirator Anthony Day indicating that Brown and Owens

had sold marijuana together and that Brown had once demanded that Owens reimburse him

for some marijuana seized from Owens’ home by law enforcement because it had belonged

to Brown. Farr could not recall the amount of drugs that had been seized on that day, but

did recall that both marijuana and cocaine had been seized from Owens’ residence at that

time. Farr explained that he believed Brown and Owens “were dealing narcotics together”

based “on the amount of time they spent together; their interactions at the meetings that

they had together; [and] the free manner in which they discussed their activity.” J.A. 3027.

The district court fully credited this testimony, noting that it had heard Williams and Day’s

testimony at trial, as well as Farr’s recap of that testimony at sentencing, and had the

opportunity to compare that testimony to Owens’ testimony at trial in assessing why it was

appropriate to hold Brown responsible for Owens’ sales.

The district court explained at some length why federal sentencing law allowed

Brown to be held responsible for any drugs sold that were related to the underlying drug

conspiracy and reasonably foreseeable to the defendant. Next, the court pivoted to why it

would not matter what drug weight finding it made:

Regardless of where I come down on the guidelines in this case, I know what

the sentence needs to be in this case under the 3553(a) factors. I know what

it needs to be. And regardless of whether I found Mr. Brown responsible for

16

all the drug weight attributed to him in the PSR or whether what he thinks he

should be responsible for, and that is 3 . . . kilograms of marijuana, I would

give the very same sentence in this case, the very same sentence. Not based

on the guidelines. The guidelines are advisory. I consider them or not.

J.A. 3048–49. Thereafter, the court summarized the evidence as to Brown’s drug sales,

crediting testimony that the two conspirators sold marijuana together and that Brown

claimed ownership of marijuana seized from Owens’ residence. Lastly, the district court

adopted the PSR’s recommendation and held Brown responsible for the equivalent of 180

kilograms of marijuana.

If the district court had based its sentence only on Brown’s Guidelines range, this

record might give us pause as to whether Owens’s cocaine sales are “relevant conduct”

because the district court did not make “particularized findings with respect to both the

scope of the defendant’s agreement and the foreseeability of the conduct at issue” before

finding the full 180 kilograms of marijuana equivalency to be attributable to Brown. United

States v. Flores-Alvarado, 779 F.3d 250, 254–57 (4th Cir. 2015). We have previously held

that without those findings, we are unable to meaningfully review whether a conspirator’s

conduct was appropriately attributed to the defendant as part of his Guidelines calculation.

Id. Here, the evidence presented during the sentencing hearing and cited by the district

court related to Brown’s knowledge of and participation in marijuana sales, which

comprised 80 of the 180 kilograms of marijuana equivalency attributed to him. And

although the district court did not make a specific finding as to Owens’ cocaine sales, it

may not have been clearly erroneous to include them as relevant conduct given the

17

closeness of Owens’ and Brown’s interactions, as described by Agent Farr. Regardless, we

conclude that any error was ultimately harmless.

The complete sentencing transcript reveals unambiguously that the district court

sentenced Brown based on its consideration of the § 3553(a) factors and that the Guidelines

calculation played no role in the sentence the court ultimately imposed apart from being a

necessary starting point. The assumed-error harmlessness review exists for precisely this

situation. As we have previously explained, “it would make no sense to set aside [a]

reasonable sentence and send the case back to the district court since it has already told us

that it would impose exactly the same sentence, a sentence we would be compelled to

affirm.” United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011) (internal

quotation marks omitted); see also United States v. Revels, 455 F.3d 448, 452 (4th Cir.

2006) (observing that resentencing where it is clear from the record that a Guidelines

calculation error was harmless would be “little more than an empty formality, for the

sentence the district court would impose on remand is a foregone conclusion”).

The first part of the inquiry is readily satisfied in this case given the district court’s

repeated statements that it would impose the same sentence under § 3553(a) regardless of

which drug weight it selected. In addition to the statement quoted above, the district court

later reiterated, “[r]egardless of the guidelines finding I made in this case, I would give the

same sentence, because this is the most dangerous conduct involved with drug dealing that

I have seen in my years as a United States District Judge.” J.A. 3070. The district court

expressly and repeatedly stated that it “would have reached the same result even if it had

decided the [G]uidelines issue the other way.” Gomez-Jimenez, 750 F.3d at 382.

18

Based on the governing legal standards, we also conclude that Brown’s sentence is

substantively reasonable, meaning that the second part of the inquiry is also satisfied.

Brown’s 240-month sentence was the statutory maximum, 21 U.S.C. § 841(c)(1) (2012),

and varied upward by five months from his calculated Guidelines range. But the sentence

represents a significant upward variance of 194 months from the range Brown advocated.

While that extent of a variance requires the district court to provide a more thorough

explanation of its reasoning, it is not per se unreasonable and, as noted, the district court

gave a detailed explanation of why it was imposing the sentence. See United States v.

Hargrove, 701 F.3d 156, 163 (4th Cir. 2012). To the contrary, the Supreme Court and we

have recognized that when reviewing an upward variant sentence, we must “consider the

extent of the deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United States, 552

U.S. 38, 51 (2007). This means that “a major departure should be supported by a more

significant justification than a minor one,” id. at 50, but “a district court need not justify a

sentence outside the Guidelines range with a finding of extraordinary circumstances.”

United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (internal quotation marks

omitted).

When it sentenced Brown, the district court discussed the relevant § 3553(a) factors,

focusing on the seriousness of the offense, the need to promote respect for the law, provide

just punishment, protect the public, and promote specific and general deterrence. With

respect to the Guidelines, the court indicated that although they were the starting point,

they were “advisory,” “not binding,” and—most notably—“[t]he only thing that’s binding

19

on me is the sentence should be zero to 20 years. Zero to 240 months.” J.A. 3066. Plainly,

the district court was looking at what sentence was authorized under statute, not the

Guidelines, when it explained how it selected the appropriate sentence.

Next, the court observed that Brown’s conduct fell outside the heartland of drug

conspiracy cases because his egregious acts of violence and “callous disregard for human

life,” which was part of a conspiracy, were unlike any it had “seen before in the 14 years

that I’ve been on the bench.” J.A. 3066. The court elaborated that it had “never seen the

level of violence, the level of danger, the level of callous disregard for human life that I

have seen in the drug conspiracy in this case. . . . It is the worst thing in our society, the

callous disregard for human life.” J.A. 3066. And it then reiterated that “the evidence I

heard in this case with regard to the violent acts you engaged in associated with your drug

dealing is the worst I’ve heard in any case that I’ve presided over as a United States District

Judge.” J.A. 3067. After describing some of the specific evidence of violent conduct, the

court summarized that this conspiracy was “about violence and drug dealings,” J.A. 3067,

and while Brown may have been a minor drug dealer, he played an integral role in the

violent side of the drug conspiracy. 5 The district court also noted Brown’s “life of crime,”

5

The dissent takes particular issue with the district court’s reliance on Brown’s

violent conduct as part of its § 3553(a) explanation because Brown was subsequently

acquitted on charges related to some of it when he was tried in the Eastern District of

Virginia. Infra, at 27. Yet a judge’s personal disagreement is irrelevant given the well-

settled rule that district courts can “consider uncharged or even acquitted conduct during

sentencing” so long as it is supported by at least a preponderance of the evidence. United

States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009). It is clear from the record that standard

was met here.

20

the need to promote respect for the law given that “Brown has demonstrated absolutely no

respect for the law,” J.A. 3068–69, and the need to provide just punishment and both

general and specific deterrence. Notably, the court compared these concerns against

Brown’s mitigating evidence, but ultimately found the record to support the statutory

maximum sentence. Indeed, the court concluded its explanation by stating that Brown’s

conduct “crie[d] out” for the statutory maximum and that it would have imposed a higher

sentence if one had been authorized by statute. J.A. 3070.

Viewing the totality of this explanation and affording requisite deference to the

court’s § 3553(a) assessment, we conclude the district court acted within its considerable

discretion to impose a 240-month sentence. Gomez-Jimenez, 750 F.3d at 383–84

(observing that a district court’s sentence generally will be substantively reasonable if it

provides a “thorough and persuasive” analysis of the § 3553(a) factors, considering the

defendant’s arguments and addressing the case’s “individual circumstances”). Brown’s

sentence is substantively reasonable and thus satisfies the second inquiry under the

assumed-error harmlessness analysis. Accordingly, we affirm his sentence.

III.

For the reasons set out above, we affirm the district court’s judgments against Jones,

Brown, and Jennings.

AFFIRMED

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THACKER, Circuit Judge, dissenting, in part:

I dissent solely with respect to the sentencing of Appellant Terrance Nathaniel

Brown, Jr. I have grave concerns that following this case, with a wave of the hand and the

disclaimer that the sentence imposed for a drug distribution conspiracy would be the same

regardless of the quantity of drugs distributed, district courts can essentially disregard the

relevant Sentencing Guidelines range and count on us to credit their 18 U.S.C.

§ 3553(a) analysis as sufficient, even absent a requisite finding as to the nature and scope

of the conduct at issue.

Therefore, for the reasons set forth below, I would remand for resentencing so that

adequate factual findings can be made on the record with regard to Brown’s purported

responsibility for his co-conspirator’s drug weight.

I.

At sentencing, Brown objected to the drug weight calculation in his presentence

investigation report (“PSR”). Specifically, he contended that his Sentencing Guidelines

range was overstated because the base offense level calculation attributed to him 180

kilograms of marijuana equivalent distributed by a subordinate drug dealer, Corey Owens.

Based on evidence provided by Owens and a narcotics agent at the sentencing

hearing, the district court concluded that the drugs attributable to Owens were reasonably

foreseeable to Brown and, thus, were attributable to Brown. And the district court adopted

Brown’s PSR in its entirety. As a result, the district court varied upward from Brown’s

Sentencing Guidelines range of 188 to 235 months to impose the statutory maximum of

240 months’ imprisonment. The district court also indicated it would have imposed the

22

same sentence based on the 18 U.S.C. § 3553(a) factors irrespective of the drug weight

calculation.

II.

We review a district court’s sentencing decision by determining first whether there

has been procedural error and second whether a sentence is substantively reasonable.

United State v. Provance, 944 F.3d 213, 215 (4th Cir. 2019). We review factual findings

for clear error, including a district court’s drug weight determination. United States v.

Flores-Alvarado, 779 F.3d 250, 254 (4th Cir. 2015). “[I]f the district court makes adequate

findings as to a controverted sentencing matter, this court must affirm those findings unless

they are clearly erroneous.” Id. (emphasis supplied) (alterations and internal quotation

marks omitted).

Pursuant to the Sentencing Guidelines, a sentencing court determines a defendant’s

offense level by evaluating his “relevant conduct,” that is, his own acts as well as, “in the

case of a jointly undertaken criminal activity . . . , all acts and omissions of others that

were:” (1) “within the scope of the jointly undertaken criminal activity”; (2) “in furtherance

of that criminal activity”; and (3) “reasonably foreseeable in connection with that criminal

activity.” U.S.S.G. § 1B1.3(a)(1)(B) (2016). All three aspects of this joint activity must

be proven by a preponderance of the evidence. United States v. Bell, 667 F.3d 431, 440

(4th Cir. 2011). Acts of others outside the scope of the conspiracy in which the defendant

agreed to participate -- even if those acts are known or reasonably foreseeable -- are not

“relevant conduct” for sentencing purposes. See U.S.S.G. § 1B1.3 & cmt. 3B.

23

For a sentence to be procedurally reasonable, a district court must “make

particularized findings with respect to both the scope of the defendant’s agreement and the

foreseeability of the conduct” in question. Flores-Alvarado, 779 F.3d at 256 (alterations

omitted) (internal quotation marks omitted). That is, a district court must supply specific

findings as to the “critical factual question of the scope of the criminal activity [the

defendant] agreed to jointly undertake.” Id. A court’s failure to make these findings

warrants remand for resentencing. Id. at 254–55.

III.

A.

Brown takes issue with the calculation of his relevant conduct. He claims that the

district court did not make adequate factual findings regarding the scope of his agreement

with his co-conspirator, Owens, and that the Government did not provide adequate

evidence to support holding Brown accountable for Owens’s marijuana and cocaine

transactions, which totaled 180 kilograms of marijuana equivalent under the Sentencing

Guidelines. In particular, Brown argues that no evidence connected him to Owens’s

cocaine dealing.

The Government avers that Brown’s “supervision of Owens” provided the basis for

the PSR’s attribution of Owens’s drugs to Brown, Appellants’ Br. 32, though it

acknowledges Owens’s own testimony at the sentencing hearing was that he was not

Brown’s subordinate. The Government also points to testimony of FBI Agent John Farr

indicating that two government cooperators said Brown and Owens sold marijuana together

and that Owens himself claimed Brown demanded payment for marijuana seized from

24

Owens’s operation. Though Owens distributed cocaine as well as marijuana, the

Government did not put on evidence associating Brown with Owens’s cocaine.

The district court credited the cooperators’ testimony about Owens’s marijuana

distribution and expressly rejected Owen’s disavowal of a supervisory relationship

between the co-conspirators. Emphasizing the district court’s statement that its sentencing

decision would have been unchanged regardless of any difference in the drug weight, the

Government argues that any error in the drug weight attribution was harmless. The

majority accepted this harmless error argument. I do not.

B.

A district court’s Sentencing Guidelines error is harmless if “(1) the district court

would have reached the same result even if it had decided the [G]uidelines issue the other

way, and (2) the sentence would be reasonable even if the [G]uidelines issues had been

decided in the defendant’s favor.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th

Cir. 2014) (internal quotation marks omitted). Undertaking an “assumed error

harmlessness inquiry,” id., we assume the district court erred by attributing Owens’s drug

quantities to Brown. Here, the district court expressly indicated its evaluation of the 18

U.S.C. § 3553(a) factors compelled its sentencing decision no matter the quantity of drugs

the court were to find. Crediting that assertion, we next ask whether the sentence would

be reasonable even if Owens’s drugs were not attributed to Brown.

But without Owens’s drug quantity, Brown was only personally connected to

approximately three kilograms of marijuana equivalent, which supports a base offense

level of eight, a total offense level of 17, and a Sentencing Guidelines range of 37 to 46

25

months’ imprisonment. See U.S.S.G. § 2D1.1(c); ch. 5, pt. A (2016). As the majority

notes, the difference between that sentence and the sentence Brown received is a 194-

month upward variance. Put differently, the 240-month sentence Brown actually received

was more than five times the Sentencing Guidelines range as calculated without Owens’s

drug quantities.

The Government did not even attempt to defend the five-fold upward variance as

substantively reasonable. Instead, the Government argued only that the five-month

variance from the Sentencing Guidelines range that included Owens’s drug weight was

reasonable. Gov’t Br. 36 (“Even if the district court’s drug weight finding was erroneous,

the error was harmless because the district court expressly stated that it would have

imposed a 240-month sentence regardless of its drug weight finding, and that sentence is

substantively reasonable. The district court’s five-month upward variance from 235

months to 240 months was modest.”). The Government’s argument that there was only a

“modest” five-month upward variance significantly understates the effect Owens’s drug

attribution had on Brown’s Sentencing Guidelines range. Id.

The majority’s harmless error evaluation at least correctly recognized that we must

consider the reasonableness of the variance from the Sentencing Guidelines range

calculated without Owens’s drug quantity included -- i.e. as though “the [G]uidelines issue

had been decided in the defendant’s favor.” Gomez-Jimenez, 750 F.3d at 382 (internal

quotation marks omitted). As the majority then explains, we must still decide whether the

district court’s analysis of the 18 U.S.C. § 3553(a) factors can support the sentence. The

district court stressed the very serious nature of the offense and Brown’s history and

26

characteristics as reflecting extensive criminal involvement, which includes prior

convictions for assault and use of a firearm. Though I agree with the district court that

Brown’s history and violent conduct, and the seriousness of the present conspiracy are

significant, I disagree with the majority’s conclusion that the explanation given by the

district court was clearly sufficient to support the drastic upward variance of 194 months

imprisonment. I am especially troubled that a significant portion of the violent conduct

cited by the district court involved acts for which Brown was separately charged and

ultimately acquitted. 1

When the court “decides that an outside-Guidelines sentence is warranted, [it] must

consider the extent of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Gall v. United States, 552 U.S. 38, 50

(2007). Here, the district court did not consider the extent of a 194-month variance in

issuing its sentence. When a court “settle[s] on the appropriate sentence, [it] must

adequately explain the chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.” Id. (citation omitted). I cannot conclude that

the court did so here.

1

I acknowledge that both the Sentencing Guidelines and our precedent allow for the

use of acquitted conduct at sentencing. See U.S.S.G. § 1B1.3 (2016) cmt., backg'd; United

States v. Lawing, 703 F.3d 229, 241 (4th Cir. 2012) (citing United States v. Watts, 519 U.S.

148, 152 (1997)). However, given everything else I find lacking in the sentencing

calculation in this case, the consideration of acquitted conduct adds too much insult to

injury for me.

27

C.

On appeal, we lack key factual determinations as to the scope of Brown’s

involvement in the drug distribution and certainly do not have an adequate explanation as

to how a 240-month sentence for drug distribution involving three kilograms of marijuana

equivalent avoids “unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a). Though adopting the PSR “can be a satisfactory means of resolving factual

disputes,” Flores-Alvarado, 779 F.3d at 256 (citation omitted), the PSR here did not

identify an agreement between Owens and Brown involving cocaine distribution, nor did

it explain how such distribution would have been foreseeable to Brown. The district court

needed to make these determinations on the record and its failure to do so interferes with

our ability to fairly review Brown’s sentence.

“[T]he assumed error harmlessness inquiry is an appellate tool that we utilize in

appropriate circumstances to avoid the ‘empty formality’ of an unnecessary remand where

it is clear that an asserted guideline miscalculation did not affect the ultimate sentence.”

United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012) (emphasis supplied). In my

view, this is not such a case. As we have previously explained, our assumed harmless error

standard is not meant to “allow district courts to ignore their responsibility to consider the

[G]uidelines in a meaningful manner when sentencing a defendant.” Id. (citing Rita v.

United States, 551 U.S. 338, 351 (2007)). I fear that the majority’s decision -- utilizing

harmless error analysis to uphold a 194-month variance primarily based on a defendant’s

acquitted conduct as opposed to the actual offense of conviction -- does just that.

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IV.

A.

Because I am firmly of the view that we cannot hold the assumed error to be

harmless, I would consider whether the district court did in fact err. Here, the district court

failed to make a finding as to the scope of Brown’s agreement sufficient to meet our

standard. Therefore, in my view, we should remand for that finding to be made on the

record. See Flores-Alvarado, 779 F.3d at 255 (quoting United States v. Soto-Piedra, 525

F.3d 527, 531 (7th Cir. 2008) (“Conspiracy liability . . . is generally much broader than

jointly undertaken criminal activity under [the Sentencing Guidelines]”)). “[T]o determine

the defendant’s accountability for the conduct of others under [the Sentencing Guidelines],

the court must first determine the scope of the criminal activity the particular defendant

agreed to jointly undertake (i.e. the scope of the specific conduct and objectives embraced

by the defendant’s agreement.” U.S.S.G. § 1B1.3 cmt. 3B (2016).

Without such a finding, we cannot even proceed to determine which of Owens’s

drugs (especially the cocaine amounts) are within the scope of Brown’s agreement with

Owens. How can we? The district court itself did not explain the scope of that agreement.

The district court erred in failing to recognize that Owens’s drug weight included cocaine.

The Government attempts to avoid drawing attention to this by arguing that the district

court “credited the trial testimony . . . that Brown and Owens sold drugs together.” Gov’t

Br. 33–34. But the relevant trial testimony and the court’s conclusion referenced marijuana

29

alone. See J.A. 3031–32 (reflecting that even the Government at sentencing said the

evidence indicated Brown should be responsible for “specifically the marijuana”). 2

B.

To credit Brown with Owens’s cocaine distribution, the district court needed to

define the scope of Brown’s agreement of joint activity with Owens in a way that included

cocaine. It did not. The district court’s description of Owens’s and Brown’s joint activity

mentioned only marijuana. As the court explained, it “credit[ed] the testimony of Anthony

Day, and [it] credit[ed] the testimony of Adrienne Williams, as testified to by Special Agent

Farr in this case, and that was that Mr. Brown and Mr. Owens were selling marijuana

together.” J.A. 3049 (emphasis supplied). The court’s conclusion was that “the marijuana

that’s attributable to Owens is reasonably foreseeable to Mr. Brown.” Id. at 3050

(emphasis supplied). Critically, nowhere does the court refer to cocaine as part of their

joint activity or as foreseeable to Brown.

Had the district court recognized cocaine was at issue, it should have defined the

co-conspirators’ joint activity to encompass that drug if there was evidence to support that

view by a preponderance. But the court had before it no evidence connecting Brown to

Owens’s cocaine dealing.

At sentencing, both the Government and the district court referred to Brown as being

responsible for Owens’s marijuana, not his cocaine. Indeed, when determining the

sentence, the district court referred only to Brown’s connection to Owens’s marijuana

2

Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

30

dealing. In Flores-Alvarado, we made clear that the district court must define “the scope

of the criminal activity the particular defendant agreed to jointly undertake.” 779 F.3d at

256 (quoting U.S.S.G. § 1B1.3, cmt. 2). But, with respect to defining the scope of the

criminal activity in this case, the closest the district court came was saying it credited

testimony that “Mr. Brown and Mr. Owens were selling marijuana together.” J.A. 3049

(emphasis supplied). Yet the court never explained whether cocaine distribution was part

of their joint activity. Therefore, although we know the court understood Brown to have

agreed to participate in the overarching conspiracy, we lack a more specific finding that

encompasses cocaine. The Sentencing Guidelines and our precedent require more. See

Flores-Alvarado, 779 F.3d at 256 (“[T]he scope of the criminal activity jointly undertaken

by the defendant . . . is not necessarily the same as the scope of the entire conspiracy, and

hence relevant conduct is not necessarily the same for every participant

. . . .” (emphasis in original) (quoting U.S.S.G. § 1B1.3 cmt. 2)).

V.

By holding Brown responsible for the full drug weight in the PSR, the district court

attributed Owens’s cocaine distribution to him without the requisite “particularized

findings with respect to both the scope of the defendant’s agreement and the foreseeability

of the conduct” involving that drug. Flores-Alvarado, 779 F.3d at 255 (emphasis omitted).

I cannot conclude that this error -- which caused an under-supported 194-month upward

variance -- was harmless. As a result, I would remand for adequate findings on the record

with regard to Brown’s agreement to and involvement in Owens’s drug distribution.

I therefore respectfully dissent.

31