Petition for Writ of Certiorari — Christopher McPherson, Petitioner v. United States

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2023

CHRISTOPHER MCPHERSON

PETITIONER,

UNITED STATES OF AMERICA

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Peter L. Goldman

527 Bellvue Place

Alexandria, Virginia 22314

(703) 684-6476 (0)

Counsel for Petitioner

QUESTIONS PRESENTED

I. Whether the Fourth Circuit erred by failing to reverse the

conviction on Count V of the Superseding Indictment - Possession of

a Firearm in Furtherance of a Drug Trafficking Crime (18 U.S.C.

Sec. 924(c) (1) (A)) - where the evidence was insufficient and the

prosecution’s failure was clear?

Il. Whether the Fourth Circuit erred, under a Plain Error

standard, by failing to reverse the conviction on Count IV of the

Superseding Indictment - Felon in Possession of a Firearm (18

U.S.C. Sec. 922(g) (1)and 924(a)(2)) - where the Government failed

the Rehaif test and the evidence was insufficient and the

prosecution’s failure was clear?

III. Whether the Fourth Circuit erred, Grdex the

“reasonableness” and the ‘deferential abuse-of-discretion

standard,” by failing to reverse the sentences on both Count V and

Iv based on the insufficiency of the evidence underlying the

convictions, and the failure of the record to support by a

preponderance of the evidence drug trafficking by Mr. McPherson?

RULE 14.1(b) STATEMENT

There are no parties in addition to those listed in the

caption.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED 2... cc ccc ccc cee rece rere rere rere reves 1

RULE 14.1(b) STATEMENT. 2... ee ee ee ee ee ee eee ee ee ee eee ii

TABLE OF CONTENTS. caceiccc cela cee eee cbc les ee Swale see ees iii-iv

TABLE OF AUTHORITIES... ccc ccc eee ee ee ee ee ee terete eens v-vi

OFFICIAL OPINION BELOW. 2... .. ee eee ee ee ee eee eee ee ene vil

STATEMENT OF JURISDICTION. ... 2... ee eee ee eee eee ee eee eee vii

CONSTITUTIONAL PROVISIONS... 2. ee ee eee eee eee eee vii

STATEMENT OF THE CASE... eee ee ee ee ee ee eee eee eee 1

STATEMENT OF THE FACTS... 2. ee ee ee ee eee ee ee ee et eee ee eee 1

SUMMARY OF ARGUMENT ...... 2c eee eee eee ee ee ee eee eee 8-9

ARGUMENT . . cee ce ce cc cee eee meee eee eee es sree eres oeee 9

I. THE CONVICTION ON COUNT V SHOULD BE REVERSED WHERE

THE EVIDENCE WAS INSUFFICIENT... 2... cece eee ee eee ee 9

A. The Standard Of Review .... ee ee eee eee ee ee ee 9

B. The Law Of Inconsistent VerdictS........eeeeeee 10

C. 924(c) Charges Where The Predicate Act Is Not

CONVICCEd. 2... 2. c GB HU ele ww S 6 WeNeShs % SE HURON es a 10

D. The Evidence Was Insufficient To Convict

McPherson On The Drug Conspiracy Charge........ 13

II. THE CONVICTION ON COUNT IV SHOULD BE REVERSED

WHERE THE EVIDENCE WAS INSUFFICIENT...............6. 17

A. The Standard Of REVIGW 2. .2 cee ee cece ccvccecesve 17

B. The Government Failed The Rehaif Test.......... 18

TII. THE DISTRICT COURT ABUSED ITS DISCRETION AT

SENTENCING BY FINDING THAT MCPHERSON WAS IN

A DRUG CONSPIRACY... . ee eee eee eee ee eee tee ene 19

iii

A. The Standard Of ReEView 2... eee ee ee ee ee eee ene

B. Sentencing Standards On Acquitted Charges...... 20

C. The Applicable Legal Standard For Sentencing... 20

D. The District Court Erred In Its Findings....... 21

CONCLUSION... 2. ec ee ee ee ee tte tee eee eee eee eee tees 24

APPENDIX Lecce ccc ce ce wee ec cee eee eer eee eee eee meee ee enes 26

iv

TABLE OF AUTHORITIES

CASES

Burks v. United States, 437 U.S. 1 (1978)..........

Dunn v. United States, 284 U.S. 390 (1932).........

Gall v. United States, 552 U.S. 38 (2007)..........

Glasser v. United States, 315 U.S. 60(1942)........

Greer v. United States, 141 S.Ct. 2090 (2021)......

Kimbrough v. United States, 552 U.S. 85(2007)......

Rehaif v. United States, 131 S.Ct. 2191 (2019)

United States v. Olano, 507 U.S. 725 (1993)........

United States v. Powell, 469 U.S. 57 (1984)........

United States v. Watts, 519 U.S. 148 (1997)........

United States v. Al Sabahi, 719 F.3d 305 (4 Cir.

United States v. Blue, 808 F.3d 226 (4% Cir.

United States v. Burgos, 94 F.3d 849 (4 Cir.

United States v. Carter, 300 F.3d 415 (4 Cir.

United States v. Crump, 120 F.3d 462 (4™ Cir.

United States v. Grubbs, 585 F.3d 793 (4% Cir.

United States v. Hall, 858 F.3d 254 (4% Cir. 2017)

United States v. Hassan, 742 F.3d 104, (4 Cir.

United States v. Hopkins, 310 F.3d 145 (4 Cir.

United States v. Jones, 735 F.2d 785 (4 Cir.

United States v. Lawing, 703 F.3d 229(4™ Cir.

United States v. Lipford, 203 F.3d 259(4 Cir. 2000)...

Vv

2015)

PAGE

16

9, 17

United States v.

United States v.

United States v.

United States v.

(5% Cir.

1990)

United States v. Ruiz,

United States v. Stephens, 482 F.3d 669 (4% Cir. 2007).

United States v. Wilson, 135 F.3d 291 (4 cir. 1998)...

STATUTES

18 U.S.C.

18

18

18

21

21

28

U.

U.

U.

U.

S.

5S.

S.

S.

C.

on

C.

on

Louthian, 756 F.3d 295(4 Cir. 2014)..

McCain, 974 F.3d 506 (4* Cir. 2020).

Medley, 34 F.3d 326(4% Cir. 2022).....

Munoz-Fabela, 896 F.2d 908

ee

986 F.2d 905 (Sth Cir. 1993)....

Sec. 922(g) (1) 924 (a) (2) 20 & wwiwerers © w & aiermens ee ee

Sec. 924(c) (1) (A)... cc ee eee eee

Sec. 1956 (N) wwies ¢ 6 Ptewin’s & & & WALD TN & F Se wR aS

Sec. 3553 (a) (2) ss 6 sew ss eerpepws ¢ © HERE! SEE HG

Secs. 841(a) (1), 841 (b) (1) (A) . oso ek sermons «ao ove

Sec. 846 28 U.S.C. Sec. 1254(1).............4.

Sec. 1254 (1)

ee

vi

10

19

20

11

13

wil

OFFICIAL OPINION BELOW

The Judgment of the United States Court of Appeals for the

Fourth Circuit was entered on June 3, 2024. The Fourth Circuit

Opinion is attached hereto as Appendix I.

STATEMENT OF JURISDICTION

The Judgment of the United States Court of Appeals for the

Fourth Circuit was entered on March 28, 2024. This Court’s

jurisdiction is invoked under 28 U.S.C. Sec. 1254(1).

CONSTITUTIONAL PROVISIONS

There are no constitutional provisions cited in the Petition

for a Writ of Certiorari.

vil

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2023

CHRISTOPHER MCPHERSON

PETITIONER,

UNITED STATES OF AMERICA

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STATEMENT OF THE CASE/STATEMENT OF FACTS

On March 19, 2021, Mr. McPherson, along with four codefendants!, were charged in an indictment with Conspiracy to

Distribute Cocaine and Heroin, in violation of 21 U.S.C. Secs.

841(a) (1), 841(b) (1) (A), and 21 U.S.C. Sec. 846.

On January 6, 2022, Mr. McPherson was charged in a Superseding

Indictment with: (Count 1) Conspiracy to Distribute Cocaine,

Heroin, and Marijuana, in violation of 21 U.S.C. Secs. 841(a) (1),

1 The Co-Defendants were Victor Duran, Drew Sparrow, Eric

Martinez and Derrick Britt.

2

841(b) (1) (A), and 21 U.S.C. Sec. 846; (Count IV) Felon in

Possession of a Firearm (Omni Hybrid 5.56), in violation of 18

U.S.C. Sec. 922(g)(1l)and 924(a) (2); (Count V) Possession of a

Firearm in Furtherance of a Drug Trafficking Crime, in violation

of 18 U.S.C. Sec. 924(c) (1) (A); and (Count VI) Money Laundering in

relation to criminal conduct - drug trafficking conspiracy, in

in violation of 18 U.S.C. Sec. 1956(h) .?

Mr. McPherson had a jury trial in the United States District

Court for the Eastern District of Virginia - Newport News Division,

before the Honorable Roderick C. Young. The trial dates were

October 3-5, 2022. On October 5, 2022, the jury returned not guilty

verdicts on Counts I and VI, and guilty verdicts on Counts IV and

V.

On February 13, 2023, the district court sentenced Mr.

McPherson to 120 months on Count IV, and 60 months on Count V, the

sentences to be served consecutively.

On February 21, 2023, Mr. McPherson filed a timely Notice of

Appeal to the United States Court of Appeals for the Fourth

Circuit.

STATEMENT OF THE CASE

1. The Testimony Of Victor Duran.

Victor Duran testified for the Government. He had pled guilty

2 The Co-Defendants were Drew Sparrow, Eric Martinez and

Johnny Zapata.

3

to distribution of marijuana, cocaine and heroin. He was in the

conspiracy with Johnny Zapata. He provided drugs to Zapata.

He also knew Eric Martinez. He picked up drugs from him.

Duran would drive to Virginia to pick up drugs from Zapata. He

would get money from Zapata.

On cross-examination, Duran testified that he did not know Mr.

McPherson. He had never seen him before. He could not identify Mr.

McPherson in the courtroom.

Duran’s practice was to bring drugs down to Zapata.

2. The Testimony Of Eric Martinez.

Eric Martinez testified for the Government. He had pled guilty

to dealing drugs in the instant case. He had a cooperation

agreement with the Government. He knew Duran. He sold drugs to

Duran, in New York.

On cross-examination, Martinez testified that he did not know

Mr. McPherson. He had never seen him before. He could not identify

Mr. McPherson in the courtroom.

Further, he never met Johnny Zapata.

3. The Testimony Of Johnny Zapata.

Johnny Zapata testified for the Government. He knew Duran.

He had been dealing drugs in his restaurant in Virginia. He was

selling marijuana, which he obtained from Miami.

Later, he and Duran obtained marijuana from California.

After a prison term, he reconnected with Duran and they sold

other drugs.

Zapata knew Mr. McPherson. He identified him in the courtroom.

Eventually, Zapata started giving Mr. McPherson marijuana, which

McPherson paid for. The marijuana Zapata obtained was from Duran.

Later, Zapata started selling cocaine to Mr. McPherson.

Zapata got the cocaine from Duran. McPherson came to his house to

buy cocaine. Zapata gave the bulk of his cocaine to McPherson. He

also gave McPherson heroin to sell.

McPherson didn’t pay Zapata up front for drugs. He paid him

later.

On cross-examination, Zapata acknowledged that he had pled

guilty to conspiracy to distribute drugs. He had agreed to

cooperate with the Government, and he was not detained at the time

of trial. He was seeking a lower sentence.

4. The Testimony Of Ryan Boone.

Ryan Boone testified for the Government. He was a task force

officer with the Department of Homeland Security, and he was with

the Hampton Police Division.

Boone participated in the search of a house on Westview Ave.,

300 block, in Hampton, Virginia. He went there to arrest Mr.

McPherson.

Mr. McPherson answered the door to the residence. He was

wearing boxer shorts and a T-shirt. He later changed clothes,

brought from an upstairs bedroom. Other law enforcement were

present.

Mr. McPherson signed a Consent Form allowing for the search of

the residence. Boone searched the premises. Boone found a gun

between the bed and a night stand in a bedroom. The gun was an

American tactical semiautomatic weapon. Ammunition was recovered as

well.

Boone found money/cash in a bag located on the first floor.

A money counter was found in the living room. Papers with numbers

were found. He also recovered a plastic bag with a white, powdery

substance in it, along with a playing card (# 4). It was on the

first floor.

He found a lunch box in the kitchen, containing a plastic bag

with a white powdery substance.

On cross-examination, Boone could not identify the number of

bedrooms in the residence. He had no knowledge of a lease or

leaseholder for the residence. He identified mail addressed to

Terry Lamont Langford in the residence.

The firearm found in the home was traced to Maurice Hough, of

Newport News, Virginia. There was no effort to obtain fingerprints

or DNA from the firearm and ammunition. There was no effort made to

link the gun scientifically to Mr. McPherson.

Money recovered and cocaine recovered were sent for analysis

to a Government lab. Boone did not know the test results.

6

5. The Testimony Of John T. Slayton.

Special Agent John T. Slayton of the Department of Homeland

Security testified for the Government. Slayton had an extensive

background in drug investigations. He was qualified by the Court as

an expert witness in the area of drug trafficking and its

associated language and methodologies. While he was present for the

search of the home at issue, his testimony was as an expert

witness.

Slayton identified the money counting machine, that can be

used in drug trafficking - to count large quantities of cash. He

identified “a kilogram press”, or 2.2 pounds of cocaine (or other

drugs). He described how “the cap” would work. He described how

cocaine was diluted, to make more of it.

Drug producers use symbols (i.e., the peace symbol) to

identify their drugs. The amount of cocaine can be expanded, to

produce more product. He identified a drug ledger.

On cross-examination, Slayton believed there were two bedrooms

in the house.

6. The Testimony Of Anthony “Brock” Newton.

Special Agent Anthony Newton of ATF testified for the

Government. He was qualified as an expert in the area of the

relationship between firearms and narcotics trafficking. He

testified that firearm use in drug trafficking was common. Drug

traffickers use firearms for power, protection and intimidation.

7

7. The Parties’ Stipulations.

The parties stipulated to the following:

1. Mr. McPherson had previously been convicted of a crime

punishable by imprisonment for a term exceeding one year. He had

not had his civil rights restored and was aware of his prohibited

status as a felon on or about April 8, 2021.

2. The gun found at the residence (an American Tactical

Imports, Omni Hybrid 5.56), seized on April 8, 2021, was properly

maintained by DHS; it functioned properly as a firearm; it was

manufactured outside the Commonwealth of Virginia, and it traveled

in interstate commerce prior to April 8, 2021.

3. The cocaine that was seized on April 8, 2021, was properly

maintained by DHS, and was properly tested and determined to be

cocaine, a controlled substance.

8. The Defense Rule 29(a) Motion.

The defense moved for Judgment of Acquittal under Fed. R.

Crim. P. 29(a). The Court denied the MJOA.

9. The Jury Verdict.

On October 5, 2022, the jury returned not guilty verdicts on

Counts I and VI, and guilty verdicts on Counts IV and V.

10. Post-Trial Motion For Judgment Of Acquittal.

On October 17, 2022, Mr. McPherson filed a timely post-trial

Motion for Judgment of Acquittal, on Count V of the Superseding

Indictment. The Government filed a Response to the MJOA.

8

On November 14, 2022, the Court ordered the parties to file

supplemental briefs addressing United States v. Carter, 300 F.3d

415 (4** Cir. 2002), and United States v. Stephens, 482 F.3d 669 (4

Cir. 2007).

Mr. McPherson filed a Supplemental Brief in support of his

MJOA. The Government filed a Supplemental Response

to the MJOA. Mr. McPherson filed a Supplemental Reply to the

Government’s Response.

On January 5, 2023, the District Court denied Mr. McPherson’s

MJOA. (District Court Doc. # 271.)

11. Sentencing.

On February 13, 2023, the District Court sentenced Mr.

McPherson to 120 months on Count IV, and 60 months on Count V, the

sentences to be served consecutively.

On February 21, 2023, Mr. McPherson filed a timely Notice of

Appeal to the United States Court of Appeals for the Fourth

Circuit. On June 3, 2024, the Fourth Circuit issued an opinion and

judgment, affirming the decision of the District Court. (See Fourth

Circuit decision, Appendix I.)

SUMMARY OF ARGUMENT

I. The evidence against Mr. McPherson was so weak on the drug

conspiracy charge, that a reasonable jury could not have convicted

him, and in fact, the reasonable jury in his trial did not convict

him on both Counts I and VI.

9

Il. Under the Plain Error standard, the Felon in Possession

conviction was insufficient based upon a violation of Rehaif v.

United States, 131 S.Ct. 2191 (2019), and the failure of the

Government to establish any facts whereby Mr. McPherson knew of or

constructively possessed the firearm.

III. The Fourth Circuit erred where the District Court abused

its discretion at sentencing by finding that Mr. McPherson was in

the drug conspiracy.

ARGUMENT

I. THE CONVICTION ON COUNT V SHOULD BE REVERSED WHERE

THE EVIDENCE WAS INSUFFICIENT.

As established by the acquittals on Counts I and VI, the

Government’s case against Mr. McPherson was weak, and insufficient

for conviction on Count V - Possession of a Firearm in Furtherance

of a Drug Trafficking Crime, in violation of 18 U.S.C. Sec.

924(c) (1) (A).

A. The Standard Of Review.

“{A]n appellate court’s reversal of a conviction on the

grounds of insufficient evidence should be ‘confined to cases where

the prosecution’s failure is clear.’” United States v. Jones,

735 F.2d 785, 791 (4 Cir. 1984) (quoting Burks v. United States,

437 U.S. 1, 17 (1978)).

A jury’s verdict for the Government must be upheld on appeal

“if there is substantial evidence taking the view most favorable to

10

f

the government to support it.” Glasser v. United States, 315 U.S.

60, 80 (1942).

In determining whether the evidence is substantial, this Court

views the evidence in a light most favorable to the Government,

and inguires whether there is evidence “that a reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4** Cir. 1996) (en banc).

B. The Law Of Inconsistent Verdicts.

Generally, following a criminal trial, an inconsistent verdict

on one count cannot be used to attack a guilty verdict on another

count. See United States v. Powell, 469 U.S. 57, 64-65 (1984)

(citing Dunn v. United States, 284 U.S. 390 (1932)) (inconsistent

acquittal on one count cannot be used to attack guilty verdict on

another count; the Dunn Rule); see also United States v. Louthian,

756 F.3d 295, 305 (4 Cir. 2014) (same); United States v. Hassan,

742 F.3d 104, 144 n. 36 (4% Cir. 2014) (same).

C. 924(c) Charges Where The Predicate Act Is Not Convicted.

A variance to the Dunn Rule in the Fourth Circuit occurs when

the predicate act or charge (i.e., drug distribution conspiracy) to

a charge under 18 U.S.C. Sec. 924(c) (1) results in an acquittal or

a hung jury. Under these circumstances, like the instant case, this

Court has articulated some different approaches.

In United States v. Carter, 300 F.3d 415 (4 Cir. 2002), this

11

Court stated that Sec.924(c) “criminalizes the use or carrying of

a firearm in relation to an underlying, predicate drug trafficking

offense.” Id. at 424. Similar to the instant appeal, Carter was

charged in Count I with a drug trafficking offense, and Count V

“charged her with the 924(c) firearm offense arising from the

underlying drug trafficking offense in Count One.” Id. The jury

was unable to reach a verdict on Count I (the jury hung), but

convicted Carter on Count V. Id.

On appeal of her MJOA, Carter cited this Court’s decision in

United States v. Wilson, 135 F.3d 291 (4th Cir. 1998) This Court

stated, in dicta, “we will not go into detail about the evidence

on the 924(c) charge because that charge falls if its

predicate offense (conspiracy) falls.” Id., 135 F.3d at 301 n. 7.

However, in Carter, this Court turned its attention to two

Fifth Circuit cases. First, United States v. Munoz-Fabela, 896 F.2d

908, 911 (5% Cir. 1990) (“It is only the fact of the offense, and

not a conviction, that is needed to establish the required

predicate.”) Under Munoz-Fabela, the Court then stated that the

predicate for a Sec. 924(c) offense is satisfied “as long as a

reasonable jury could have found the defendant guilty of the drug

trafficking offense, even if the actual jury in the case did not

render a guilty verdict.” Carter, 300 F.3d at 424-425. (Emphasis in

original.)

The Court then noted another Fifth Circuit case, United States

12

v. Ruiz, 986 F.2d 905, 911 (5th Cir. 1993). The Carter Court stated

the Fifth Circuit “has even taken the more extreme position that

Sec. 924(c) convictions are valid even when the jury acquits on the

predicate drug trafficking conviction.” Carter, 300 F.3d at 425.

(Emphasis in original.)

The Court in Carter held, notwithstanding the dicta in Wilson,

“we adopt the position of the other federal circuits who have

considered the question and hold that Sec. 924(c) convictions do

not require a conviction on the predicate drug trafficking offense.

We find the Munoz-Fabela approach more satisfying than the Ruiz

approach because it requires at least some showing by the

government that a reasonable jury could have convicted on the

Lf

predicate drug offense. Carter, 300 F.3d at 425. (Emphasis in

original.)?

In United States v. Hopkins, 310 F.3d 145 (4 Cir. 2002),

Hopkins challenged denial of a post-trial MJOA of a Sec. 924(c)

conviction where the jury convicted him of the predicate offense

under 18 U.S.C. lll(a), the lesser included offense of the charge

in the indictment, 18 U.S.C. Sec. 111(b). Hopkins, 310 F.3d at 152.

The Court held Hopkins’ conviction under Sec. 924(c) “does not

depend on his being convicted - either previously or

contemporaneously - of the predicate offense, as long as all of the

3 The Fourth Circuit found that Carter’s conviction on the

924(c) charge was valid because a reasonable jury could

theoretically have convicted on the predicate drug offense.

13

elements of that offense are proved and found beyond a reasonable

doubt.” Hopkins, 310 F.3d at 152(quoting United States v. Crump,

120 F.3d 462, 466 (4 Cir. 1997)).

The Court continued. "Thus, even if Hopkins had not formally

been convicted of either Sec. 111(a) or Sec. 111(b), the jury could

still have found him guilty beyond a reasonable doubt of violating

Sec. 924(c) with violation of Sec. I111(b) as the predicate

offense.” Hopkins, 310 F.3d at 152-153. (Emphasis added.)

In United States v. Stephens, 482 F.3d 669 (4th Cir. 2007),

Stephens appealed the denial of his MJOA on conspiracy to

distribute cocaine and a 924(c) charge. Prior to trial, he pled

guilty to felon in possession of a firearm. Stephens, 482 F.3d at

670.

The Fourth Circuit reversed and vacated the two convictions.

The conviction on count I was largely based on Stephens’

uncorroborated pretrial statements to ATF agents. Stephens, 482

F.3d at 672. Of interest to the instant appeal, the Court held that

“fa]bsent corroborating evidence to establish that Stephens was

engaged in the drug trade, his conviction for using a firearm in

connection with a drug trafficking crime is also infirm.” Stephens,

482 F.3d at 673.

D. The Evidence Was Insufficient To Convict McPherson On

The Drug Conspiracy Chargde.

Even under the Carter test —- “some showing by the government

14

that a reasonable jury could have convicted on the predicate drug

offense” - the evidence against Mr. McPherson was so weak that test

cannot be met under MJOA standards.‘

First, the eminently reasonable jury in Mr. McPherson’s trial

did not convict him on Count I, as well as Count VI. This was after

the jury heard from six (6) Government witnesses. Of those six

witnesses, cooperators Duran and Martinez never met McPherson, and

did not know him.

Second, the evidence, or lack thereof, was very weak to tie

McPherson to the drug conspiracy.

* Agent Boone could not identify the number of bedrooms in the

residence.

* Boone could not identify the owner or leaseholder of the

residence. No other Government witnesses could as well. Indeed,

there was no evidence to indicate if McPherson lived at the

residence, was a one night guest at the home, what bedroom he may

have been staying in, was it the bedroom with the firearm’, or was

“ To prove conspiracy to distribute drugs, the

Government must establish: an agreement to possess with intent to

distribute existed between two or more people; the defendant knew

of the conspiracy; and the defendant knowingly and voluntarily

became part of the conspiracy. See Burgos, 94 F.3d at 857.

Further, to establish a violation under Sec. 924(c) (1), the

Government must prove that the defendant used or carried a

firearm during and in relation to a drug trafficking crime or

possessed a firearm in furtherance of a drug trafficking crime.

See United States v. Lipford, 203 F.3d 259, 265-266 (4 Cir.

2000).

° There were at least two bedrooms in the home.

15

McPherson aware of the firearm, the cash and the drug residue.

* Indeed, Boone identified mail addressed to Terry Lamont

Langford at the residence, and the firearm was traced to Maurice

Hough.

* There was no scientific evidence (i.e., DNA, fingerprint

testing) linking McPherson to the firearm, the cash or drug

residue.

* There was no surveillance evidence linking McPherson to the

residence, or to drug distribution.

* McPherson was there one evening, on April 8, 2021, long

after the conspiracy charged in the Indictment had terminated.

Indeed, the Superseding Indictment, filed on January 6, 2022, after

McPherson had been arrested, alleged that the conspiracy existed

“On or about or between 2019 and 2020....”% This was long before

the firearm was found in the residence on April 8, 2021.

* No drugs or weapon were found on McPherson’s person on April

8, 2021.

* There is no evidence in the record of McPherson actually

distributing drugs.

Further, other than a marijuana possession charge from 1995

(28 years ago at age 23), Mr. McPherson, 50 years old at the time

of the trial, had absolutely no prior drug, drug distribution

or weapons convictions on his record. Indeed, this alleged “drug

distributor” had mainly traffic infractions on his prior record. It

16

is highly unusual for individuals in the drug trade, at age 50, to

have no prior drug distribution or weapons convictions.

The Government’s case - Zapata gave McPherson drugs, and the

weapon and drug paraphernalia found at a residence, was

insufficient for any reasonable jury to convict Mr. McPherson of

conspiracy to distribute drugs. That is precisely why this

reasonable jury acquitted Mr. McPherson not only on Count I, but

also on Count VI - money laundering. The unanimous jury was clear

and emphatic - Christopher McPherson was not involved in the drug

trade.

Moreover, the Government did not establish or evidence that

McPherson was in constructive possession of the firearm. Unlawful

possession of a firearm may be actual or constructive, and

exclusive or joint. See United States v. Lawing, 703 F.3d 229, 240

(4%. Cir. 2012). There is nothing in the record to suggest that Mr.

McPherson had actual possession of the weapon on April 8, 2021.

Constructive possession requires both that the defendant

“knew of the contraband’s presence and had the power to exercise

dominion and control over it.” United States v. Hall, 858 F.3d 254,

259 (4° Cir. 2017). Constructive possession must also be

intentional. See United States v. Al Sabahi, 719 F.3d 305, 311 (4%

Cir. 2013).

The Government’s evidence - McPherson was at the residence on

April 8, 2021, and a weapon was found in the master bedroom. Once

17

again, there was at least one other bedroom in the residence.® The

theory of the Government’s case is that everyone in a residence or

location is legally responsible and constructively possesses any

weapon or contraband found in a residence or location, wherever the

weapon is located.

This Court does not accept that theory. “[M]ere proximity to

the contraband,” “mere presence on the property where’ the

contraband is found,” or “mere association with the person who does

control the contraband” is insufficient to establish dominion and

control over the contraband. United States v. Blue, 808 F.3d 226,

232 (4% Cir. 2015).

II. THE CONVICTION ON COUNT IV SHOULD BE REVERSED WHERE

THE EVIDENCE WAS INSUFFICIENT.

A. The Standard Of Review.

“[A]n appellate court’s reversal of a conviction on the

grounds of insufficient evidence should be ‘confined to cases where

the prosecution’s failure is clear.’” United States v. Jones,

735 F.2d 785, 791 (4% Cir. 1984) (quoting Burks v. United States,

437 U.S. 1, 17 (1978)).

A jury’s verdict for the Government must be upheld on appeal

“if there is substantial evidence taking the view most favorable to

the government to support it.” Glasser v. United States, 315 U.S.

® Boone identified mail addressed to Terry Lamont Langford

in the residence, and the firearm was traced to Maurice Hough.

18

60, 80 (1942).

Correction of plain error is appropriate only if the error

“affects substantial rights” which usually means that it must have

influenced the outcome of the trial to the defendant’s detriment.

See United States v. Olano, 507 U.S. 725, 734 (1993).

B. The Government Failed The Rehaif Test.

Under Rehaif v. United States, 139 S.ct. 2191 (2019), “the

Government must prove not only that the defendant knew he possessed

a firearm, but also that he knew he was a felon when he possessed

the firearm.” Greer v. United States, 141 S.Ct. 2090, 2095 (2021).

While the first stipulation addressed Mr. McPherson’s

knowledge of his prior felony, the record was insufficient to

establish or evidence that Mr. McPherson knew of, or constructively

possessed, the firearm. The only evidence the Government adduced at

trial was that Mr. McPherson was at the residence on one day, April

8, 2021, and that a firearm was recovered from one bedroom in the

multi-bedroom residence on that day. Indeed, Boone conceded that

the firearm was traced to Maurice Hough.

To put it another way, the record did not evidence any of the

following: Mr. McPherson was not seen actually possessing the

firearm, on April 8, 2021 or at any other time; the Government did

not introduce any DNA or fingerprint evidence tying Mr. McPherson

to the weapon; none of the Government witnesses, including the

cooperators (including Zapata), testified that they had any

19

knowledge or information that Mr. McPherson possessed or used the

firearm recovered, or any other firearm; the Government did not

introduce any surveillance evidence identifying Mr. McPherson with

the firearm, or any firearm.

There is no evidence in the record that McPherson knew of the

firearm. This Court does not accept the Government’s theory.

“[M]ere proximity to the contraband,” “mere presence on the

property where the contraband is found,” or “mere association with

the person who does control the contraband” is insufficient to

establish dominion and control over the contraband. Blue, 808 F.3d

at 232.

III. THE DISTRICT COURT ABUSED ITS DISCRETION AT SENTENCING

BY FINDING THAT MCPHERSON WAS IN THE DRUG CONSPIRACY.

The District Court imposed a harsh and unjustified sentence

on Mr. McPherson, largely based on its finding that McPherson was

in the drug conspiracy, despite the jury’s acquittals on Counts I

and VI. Adding to this abuse of discretion, the court’s imposing

the statutory maximum sentence on Count IV was unreasonable and not

supported by the record or the law.

A. The Standard Of Review.

This Court reviews all sentences for “reasonableness” by

applying the “deferential abuse-of-discretion standard.” United

States v. McCain, 974 F.3d 506, 515 (4% Cir. 2020). Once this Court

ensures that the district court committed no significant procedural

20

errors, see Gall v. United States, 552 U.S. 38, 51 (2007), the

Court then proceeds to substantive reasonableness by considering

“the totality of the circumstances.” Id.

B. Sentencing Standards On Acquitted Charges.

“Sentencing judges may find facts relevant to determining a

Guidelines range by a preponderance of the evidence, so long as the

that Guidelines sentence is treated as advisory and falls within

the statutory maximum authorized by the jury’s verdict.” United

States v. Medley, 34 F.3d 326, 335 (4 Cir. 2022) (quoting United

States v. Grubbs, 585 F.3d 793, 799 (4 Cir. 2009)).

“[C]lear Supreme Court and Fourth Circuit precedent hold that

a sentencing court may consider uncharged and acquitted conduct in

determining a sentence, as long as that conduct is proven by a

preponderance of the evidence.” Medley, 34 F. 3d at 336 (quoting

Grubbs, 585 F.3d at 798-799)). See also United States v. Watts,

519 U.S. 148, 157 (1997) (jury verdict of acquittal does not

prevent sentencing court from considering conduct underlying the

acquitted charge, so long as that conduct is proved by

preponderance of the evidence).

C. The Applicable Legal Standard For Sentencing.

It is essential to consider the proper legal standard for

sentencing. Sentencing courts enjoy greater latitude to impose

alternative sentences that are also reasonable so long as they are

tied to the Sec. 3553(a) factors. See Gall v. United States, 552

21

U.S. 38, 59 (2007) (“the Guidelines are not mandatory, thus the

‘range of choice dictated by the facts of the case’ is

Significantly broadened. Moreover, the Guidelines are only one of

the factors to consider when imposing a sentence, and Sec.

3553(a) (3) directs the [sentencing] judge to consider sentences

other than imprisonment.”) (Emphasis added.)

Further, pursuant to 18 U.S.C. Sec. 3553(a) (2), the sentencing

court must impose a sentence that is minimally sufficient to

achieve the goals of sentencing based on all of the Sec. 3553(a)

factors present in the case. This “parsimony provision” serves as

the “overarching instruction” of the statute. See Kimbrough v.

United States, 552 U.S. 85, 111 (2007). See also Sec. 3553(a)

(“[t]he court shall impose a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in paragraph

(2) of this subsection”). (Emphasis added.)

D. The District Court Erred In Its Findings.

At sentencing, the District Court determined by a

preponderance of the evidence that Mr. McPherson was in the drug

conspiracy. The Court adopted that position as set forth in the

Presentence Report.

The District Court, citing Watts and Medley, applied the

cross-reference under U.S.S.G. Sec. 2K2.1(c) (1) (A)in the

22

Presentence Report, increasing the Offense Level to 32.’ At an

Offense Level of 32, and a Criminal History of II, the Guideline

Range was 135-168 months on Count IV. The statutory maximum was 120

months.

As far as findings regarding Mr. McPherson’s alleged

involvement in the drug conspiracy, the Court merely stated “the

Court finds that the evidence the government set forth at trial was

sufficient to establish that conduct by a preponderance of the

evidence.” The Court accepted the Presentence Report, as tendered.

The Court later made a further review of the record, as the Court

viewed it.

The Court sentenced Mr. McPherson to the statutory maximum of

120 months on Count IV, and the mandatory 60 months on Count V.

In applying the factors under 18 U.S.C. Sec. 3553(a), the

District Court made several errors. The Court reviewed Mr.

McPherson’s criminal history, which was largely limited to traffic

offenses. The Court did not give this relatively limited prior

criminal history, of a 50 year old man, due weight under his

history and characteristics in imposing the statutory maximum of

120 months.

7 In so ruling, the court recognized that the United States

Sentencing Commission had opened public discussion on a rule

limiting such usage, and that the House of Representatives had

passed legislation that limits such usage. The court also

acknowledged pending constitutional challenges before the Supreme

Court.

[OCR skipped on page(s) 31-42]

[Read from a scan; the first 30 pages.]