Petition for Writ of Certiorari — Roy O. Franklin, Jr., Petitioner v. United States

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

ROY O. FRANKLIN, JR.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

(CA8 No. 23-3118)

PETITION FOR WRIT OF CERTIORARI

J. JUSTIN JOHNSTON

JOHNSTON LAW FIRM LLC

811 Grand Boulevard, Suite 101

Kansas City, Missouri 64106

(816) 739-4538

jjj@johnstonlawkc.com

Counsel appointed under the Criminal Justice Act

i

QUESTION PRESENTED

Whether the Fifth and Sixth Amendments permit a sentencing court to use

conduct of which the jury acquitted the defendant to increase the defendant’s

advisory Sentencing Guidelines range, and ultimately the sentence imposed under

18 U.S.C. Section 3553(a).

ii

LIST OF PARTIES

Petitioner Roy O. Franklin, Jr., was a defendant-appellant below. Respondent

United States of America was the plaintiff-appellee. The consolidated appeal also

included defendants-appellants Ladele D. Smith, Gary O. Toombs, and David J.

Duncan, IV. No corporation is a party.

RELATED PROCEEDINGS

United States District Court for the Western District of Missouri

United States v. Roy Franklin, et al., No. 4:19-cr-00315-DGK-2 (W.D. Mo.),

judgment entered September 19, 2023.

United States Court of Appeals for the Eighth Circuit

United States v. Franklin, et al., Nos. 23-3118, 23-3123, 23-3228, and 23-3280

(8th Cir.), judgment entered June 1, 2026.

iii

TABLE OF CONTENTS

Question Presented…………………………………………………………………….………ii

List of Parties………………………………………………………………………………….iii

Related Proceedings………………………………………………………………….……….iii

Table of Contents……………………………………………….…………………………….iv

Table of Authorities…………………………………………………………………………..vi

Petition for Writ of Certiorari………………………………………………………………..1

Opinions Below…………………………………………………………………………...…….1

Jurisdiction…………………………………………………………………………….………..1

Constitutional and Statutory Provisions Involved………………………………………..1

Statement of the Case…………………………………………………………………………2

A. The Jury’s Verdict……………………………………………………………..……2

B. Sentencing……………………………………………………………………….…..2

C. The Decision Below………………………………………………………..……….3

Reasons for Granting the Petition………………………………………………..…………4

I. The question is exceptionally important and recurring……………………….………5

II. Developments since the briefing below make this an appropriate time and

vehicle for review……………………………………………………………………..………..7

A. The Commission has repudiated acquitted conduct in calculating the

range……………………………………………………………………………………..………7

B. Post-amendment cases reveal a new and unstable boundary………….……8

C. Erlinger confirms the constitutional direction……………………...………….9

iv

III. The decision below cannot be reconciled with the Fifth and Sixth

Amendments…………………………………………………………………………………..10

A. A jury’s acquittal must have operative force…………………………...……..10

B. Booker does not authorize the practice…………………………………...……11

C. The advisory Guidelines’ anchoring effect supplies the necessary

constitutional link………………………………………………………………….…………11

IV. This case cleanly presents the question and warrants correction……………..…12

Appendix A

Opinion, United States v. Franklin, et al., No. 23-3118 (8th Cir., June 1, 2026)

Appendix B

Judgment in a Criminal Case, United States v. Roy O. Franklin, Jr., No. 4:19-CR00315-DGK (W.D. Mo., September 19, 2023)

Appendix C

18 U.S.C. Section 3553(a)

Appendix D

18 U.S.C. Section 3661

v

TABLE OF AUTHORITIES

Table of Authorities

Cases

Alleyne v. United States,

570 U.S. 99 (2013)……………………………………………………………...…………..10

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................................................................... 9-10

Blakely v. Washington,

542 U.S. 296 (2004) .................................................................................................. 10

Erlinger v. United States,

602 U.S. 821 (2024) ................................................................................................ 4, 9

Gall v. United States,

552 U.S. 38–50 (2007) ................................................................................................ 6

Jones v. United States,

574 U.S. 948–49 (2014) .............................................................................................. 6

McClinton v. United States,

143 S.Ct. 2400 (2023) ................................................................................................. 5

Molina-Martinez v. United States,

578 U.S. 189–200 (2016) ...................................................................................... 6, 12

Peugh v. United States,

569 U.S. 530 (2013) .............................................................................................. 6, 12

United States v. Booker,

543 U.S. 220 (2005) ..................................................................................................... 11

United States v. Franklin,

177 F.4th 915 (8th Cir. 2026) .................................................................................... 1

United States v. Lasley,

832 F.3d 910 (8th Cir. 2016) ...................................................................................... 3

vi

United States v. Myore,

142 F.4th 606 (8th Cir. 2025) .................................................................................... 3

United States v. Pharms,

No. 24-14191, 2026 WL 311607 (11th Cir. Feb. 5, 2026) ......................................... 8

United States v. Ralston,

110 F.4th 909–21 (6th Cir. 2024) .............................................................................. 8

United States v. Schneider,

178 F.4th 437 (8th Cir. 2026) .............................................................................. 8, 13

United States v. Texidor,

164 F.4th 248–55 (3d Cir. 2026) ................................................................................ 8

United States v. Ware,

141 F.4th 970 (8th Cir. 2025) .................................................................................... 8

United States v. Watts,

519 U.S. 148 (1997) ............................................................................................... 7,11

Constitutional Provisions

U.S. Const. amend. V ................................................................................. 1, 3, 8-11, 13

U.S. Const. amend. VI ............................................................................... 1, 3, 8-11, 13

Statutes

18 U.S.C. § 3553(a) ............................................................................................. 1,2, 4,8

18 U.S.C. § 924 ..................................................................................................... 2, 3,12

18 U.S.C. § 3231 ............................................................................................................ 1

18 U.S.C. § 3582 ............................................................................................................ 7

28 U.S.C. § 1254 ............................................................................................................ 1

28 U.S.C § 3661 ........................................................................................................ 8,11

Sentencing Guidelines

U.S.S.G. § 1B1.3(c) ........................................................................................................ 7

U.S.S.G. § 1B1.10(d) ..................................................................................................... 7

vii

U.S.S.G. app. C, amend. 826 (2024) .............................................................. 4-8, 11, 13

Other

Supreme Court Rules 13.1, 29.2 and 30.1 ................................................................... 1

viii

PETITION FOR WRIT OF CERTIORARI

Roy O. Franklin, Jr., respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the court of appeals was filed in Nos. 23-3118, 23-3123, 23-3228,

and 23-3280 on June 1, 2026. It is published at United States v. Franklin, 177 F.4th

915 (8th Cir. 2-26). A copy of the opinion is included in Appendix A.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. The court of appeals

entered judgment on June 1, 2026. App. A. The ninetieth day was Sunday, August

30, 2026; this petition was filed Monday, August 31, 2026, by delivery to a third-party

commercial carrier for delivery to the Clerk within 3 calendar days, and is timely

under Rules 13.1, 29.2 and 30.1. This Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment provides in relevant part: “No person shall . . . be deprived

of life, liberty, or property, without due process of law.”

The Sixth Amendment provides in relevant part: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

18 U.S.C. Section 3553(a) requires a sentence sufficient, but not greater than

necessary, after considering, among other things, the United States Sentencing

Guidelines range. App. C. 18 U.S.C. Section 3661 provides that no limitation shall be

1

placed on information concerning the background, character, and conduct of a

convicted person. App. D.

STATEMENT OF THE CASE

A. The jury’s verdict

This case concerns the constitutional effect of a jury’s acquittal at sentencing.

After a multi-defendant trial, the jury convicted Franklin of a drug conspiracy but

expressly rejected the government’s allegation that the conspiracy involved heroin. It

found him responsible for less than 500 grams of cocaine, oxycodone, and marijuana.

The jury also convicted Franklin of firearm and marijuana-distribution offenses. The

district court later sentenced him to 360 months.

The jury’s rejection of the heroin theory mattered enormously under the

Guidelines, or would have, if the district court permitted the verdict to control its

sentence. The cocaine and marijuana conduct found by the jury corresponded to 58.36

kilograms of converted drug weight and a base offense level of 18. The probation office

and district court nevertheless attributed 707.2 kilograms of heroin-driven converted

drug weight to Franklin based on the same heroin theory the jury had rejected. That

finding raised the base offense level ten levels, from 18 to 28. After other adjustments,

Franklin’s total offense level was 32 rather than 22.

B. Sentencing

With a criminal-history category of III and total offense level 32, the court

calculated an advisory range of 151 to 188 months on the grouped counts, plus a

mandatory consecutive 120 months on the 18 U.S.C. § 924(c) count. The court

2

imposed 151 months on the grouped counts—the bottom of the inflated range—and

varied upward on the § 924(c) count from 120 to 209 months, producing a total

sentence of 360 months.

Without the acquitted heroin conduct, offense level 22 and criminal-history

category III would have produced a range of 51 to 63 months on the grouped counts.

Thus, before the separate variance, the acquitted-conduct finding shifted the advisory

range from 51–63 months to 151–188 months. It increased the low end by 100 months

and nearly tripled the sentencing anchor.

Franklin preserved an objection under the Fifth and Sixth Amendments. The

district court overruled it under circuit precedent permitting a judge to consider

acquitted conduct proved by a preponderance.

C. The decision below

The Eighth Circuit affirmed. App. A. It recognized that Franklin argued the “use

of acquitted conduct to increase his sentence violated his Fifth and Sixth Amendment

rights.” App. A, p. 12. It nevertheless held that “a sentencing court may consider the

conduct underlying an acquitted charge so long as that conduct has been proved by a

preponderance of the evidence.” Id. (quoting United States v. Lasley, 832 F.3d 910,

914 (8th Cir. 2016)). The court added that a preponderance standard at sentencing

generally satisfies due process and observed that it had recently rejected the same

constitutional claim in United States v. Myore, 142 F.4th 606, 613 (8th Cir. 2025).

App. A, p. 12.

3

The panel noted that, after Franklin’s sentencing, the Sentencing Commission

adopted Amendment 826, which generally excludes acquitted conduct from relevant

conduct used to calculate the Guidelines range. App. A, p. 12 n.3. But because the

Guidelines ordinarily direct courts to use the Manual in effect at sentencing, the

panel afforded Franklin no relief. Id.

REASONS FOR GRANTING THE PETITION

The Court should resolve whether a judge may override a jury’s acquittal and

use the rejected charge to set the benchmark for imprisonment. Four recent

developments make review especially appropriate.

First, Members of this Court have repeatedly recognized that the practice raises

grave constitutional questions. Second, Erlinger v. United States, 602 U.S. 821 (2024),

reinforces that facts necessary to sustain a defendant’s punishment belong to a jury

applying the reasonable-doubt standard. Third, the Sentencing Commission has now

repudiated the practice for Guidelines calculations, confirming both its systemic

importance and its corrosive effect on public confidence. Fourth, post-amendment

decisions have exposed an unstable two-track regime: the same acquitted conduct is

excluded from the Guidelines calculation but may still be used by many courts to

select a sentence under § 3553(a).

Franklin’s case cleanly presents the anterior constitutional question. His

objection was preserved and decided on the merits. The acquitted heroin conduct

caused a ten-level increase and moved the range from 51–63 months to 151–188

4

months on the grouped counts. And because Amendment 826 was not made

retroactive, only this Court can remedy the continuing constitutional injury.

I. The question is exceptionally important and recurring.

This Court has already identified the issue as one of exceptional importance.

When the Court denied certiorari in McClinton v. United States, 143 S.Ct. 2400

(2023), Justice Sotomayor, joined by Justices Gorsuch and Kavanaugh, explained

that acquitted-conduct sentencing implicates “fairness and perceived fairness of the

criminal justice system.” Id. at 2401 (statement respecting denial). An acquittal, she

explained, has “special weight” because the jury has spoken after trial. Id. at 2402.

Justice Kavanaugh, joined by Justices Gorsuch and Barrett, separately agreed that

using acquitted conduct to alter the Guidelines range raises “important questions.”

Id. at 2403.

The Court deferred review in McClinton because the Sentencing Commission

had announced that it would address the subject. The separate statements cautioned

that the denial should not be misunderstood as approval of the constitutional status

quo. Id. at 2403. The Commission has now acted, yet its amendment does not help

defendants sentenced before November 1, 2024, and it leaves open the use of

acquitted conduct outside the Guidelines calculation. The reason for deferral has

therefore run its course; the constitutional question remains.

Moreover, the issue recurs throughout federal sentencing. Before Amendment

826, every circuit allowed acquitted conduct in calculating the advisory range if a

judge found it by a preponderance, notwithstanding sustained criticism from judges

5

across the country. That uniformity reflects the force of circuit precedent, not

considered agreement about the Constitution. In Jones v. United States, 574 U.S. 948,

948–49 (2014), Justice Scalia, joined by Justices Thomas and Ginsburg, called for

review where judge-found facts produced dramatically higher sentences despite

acquittals. Judges now on this Court likewise questioned the practice before joining

the Court.

The Guidelines’ advisory character does not make the question academic.

District courts must begin with the correctly calculated range and keep it in view.

Gall v. United States, 552 U.S. 38, 49–50 (2007). The range is “the framework for

sentencing” and exerts a “real and pervasive effect” even when nonbinding. MolinaMartinez v. United States, 578 U.S. 189, 198–200 (2016); Peugh v. United States, 569

U.S. 530, 544 (2013). That anchoring force is concrete here. Acquitted conduct moved

Franklin’s range by 100 months at the bottom, and the court selected 151 months—

the bottom of the higher range—for the grouped counts before adding the separate

upward variance.

That outcome is difficult to explain to any juror or defendant: the jury rejected

heroin beyond a reasonable doubt, but a judge reinstated heroin by a preponderance

and used it to add roughly a decade to the starting point. The injury is not merely

optical. It had an outsize impact on Mr. Franklin’s liberty.

6

II. Developments since the briefing below make this an appropriate time

and vehicle for review.

A. The Commission has repudiated acquitted conduct in calculating the

range.

Effective November 1, 2024, Amendment 826 added § 1B1.3(c): “Relevant

conduct does not include conduct for which the defendant was criminally charged and

acquitted in federal court, unless such conduct also establishes, in whole or in part,

the instant offense of conviction.” The Commission also removed citations to United

States v. Watts, 519 U.S. 148 (1997), from the Guidelines commentary.

The Commission explained that the change responded to persistent concerns

about acquitted-conduct sentencing and would promote respect for the law and the

perceived fairness of sentencing. The amendment is a considered institutional

judgment based on nationwide sentencing experience: an acquittal should constrain

calculation of the federal sentencing benchmark.

But Amendment 826 is not listed among the retroactive amendments in §

1B1.10(d). Franklin therefore cannot obtain a reduction under 18 U.S.C. § 3582(c)(2).

The panel merely noted the amendment and applied the historical rule. App. A, p. 12

n.3. The amendment thus sharpens rather than moots this case: similarly situated

defendants now receive different constitutional treatment solely because of

sentencing date, and defendants like Franklin have no avenue for relief other than

direct review.

7

B. Post-amendment cases reveal a new and unstable boundary.

In United States v. Schneider, 178 F.4th 437 (8th Cir. 2026), the Eighth Circuit

vacated a sentence because a court sentencing after Amendment 826 used acquitted

conduct to impose a four-level Guidelines enhancement. Id. at 442-43. The panel

recognized a reasonable probability that the higher range affected the sentence. Id.

That holding demonstrates the range’s practical force and confirms that the very

calculation used against Franklin would be impermissible at a sentencing today.

Schneider also exposed the unresolved boundary. Judge Loken’s concurrence

reasoned that, although acquitted conduct is excluded from the range calculation, it

may still be considered under § 3553(a) when choosing a sentence within or outside

that range. Id. at 443. The Eighth Circuit had earlier taken that position in United

States v. Ware, 141 F.4th 970, 974 n.2 (8th Cir. 2025). The Third Circuit has agreed.

United States v. Texidor, 164 F.4th 248, 254–55 (3d Cir. 2026). So have the Sixth and

Eleventh Circuits in analogous post-Booker contexts. See United States v. Ralston,

110 F.4th 909, 920–21 (6th Cir. 2024); United States v. Pharms, No. 24-14191, 2026

WL 311607, at *4–5 (11th Cir. Feb. 5, 2026). 1

Those cases do not resolve Franklin’s claim. His acquitted conduct was used at

the first step to calculate and anchor the range itself. But they show why

constitutional guidance is now indispensable. The Commission can define relevant

conduct; it cannot decide what the Fifth and Sixth Amendments allow. Section 3661

1 The defendant in Pharms filed a petition for writ of certiorari in this Court on March 18, 2026.

(Case No. 25-1086). Amicus briefs in support of granting the writ on Mr. Pharms’s nearly identical

question presented have been filed by 18 Former Federal Judges, Douglas Berman, the Cato

Institute, and the National Association of Criminal Defense Lawyers.

8

addresses the information a court may receive. It does not answer the distinct

question whether a court may give a jury-rejected allegation operative weight in

fixing imprisonment.

Without this Court’s intervention, courts will continue to draw formal lines

between “calculating” and “varying,” while the same acquitted allegation produces

the same additional years. The constitutional protection cannot sensibly depend on

which paragraph of a sentencing explanation contains the judge-found fact.

C. Erlinger confirms the constitutional direction.

After Franklin filed his Eighth Circuit brief, this Court decided Erlinger. The

Court held that the Fifth and Sixth Amendments require a unanimous jury to decide

beyond a reasonable doubt whether prior offenses occurred on different occasions

when that fact increases punishment under the Armed Career Criminal Act. 602 U.S.

at 834–35.

Erlinger described Apprendi’s rule as a constitutional “guardrail”: a judge may

not find a fact necessary to sustain a greater punishment than the jury verdict alone

authorizes. Id. at 833–35. It reaffirmed that the reasonable-doubt standard and jury

trial travel together when fact finding determines punishment. Those principles

apply with special force when the jury did not merely fail to find a fact but

affirmatively acquitted the defendant of the charge embodying it.

It is true that Erlinger involved a statutory enhancement and the Guidelines are

advisory. But advisory Guidelines are the mandatory starting point and appellate

benchmark. A judge who raises that benchmark by ten levels based on acquitted

9

conduct does more than consider a defendant’s background. The judge replaces the

jury’s answer to a charged question with a contrary factual finding under a lesser

burden, then uses that finding to establish the framework for punishment.

III. The decision below cannot be reconciled with the Fifth and Sixth

Amendments.

A. A jury’s acquittal must have operative force.

The Fifth Amendment places the burden on the government to prove charged

criminal conduct beyond a reasonable doubt. The Sixth Amendment assigns the

decision to a jury. Apprendi holds that facts increasing legally available punishment

must be submitted to that jury; Blakely identifies the relevant maximum as the

punishment authorized by the facts reflected in the verdict; and Alleyne applies the

same principle to facts increasing a mandatory minimum.

The rule below empties those guarantees of practical force at sentencing. The

government alleged a heroin conspiracy and tried that allegation to a jury. It failed

to secure a guilty verdict. Yet at sentencing it obtained the same factual

determination from a single judge under a preponderance standard, and that

determination added ten offense levels. If the jury is a constitutional check on

government power, its answer cannot become irrelevant at the moment punishment

is fixed.

The jury’s verdict need not be treated as a finding that the defendant is factually

innocent in every sense. An acquittal establishes that the government failed to prove

charged conduct beyond a reasonable doubt. That is precisely the constitutional

10

allocation. Permitting punishment based on a contrary preponderance finding

converts the reasonable-doubt rule from a limit on punishment into a trial-stage

formality.

B. Booker does not authorize the practice.

Booker rendered the Guidelines advisory to cure a Sixth Amendment violation.

543 U.S. 220, 245 (2005). It did not hold that a court may negate an acquittal. Its

observation that judges historically considered conduct underlying acquitted charges

addressed the severability remedy and relied on Watts. Id. at 251.

Watts, in turn, was a summary per curiam decision addressing Double Jeopardy

and the then-mandatory Guidelines. 519 U.S. at 154–55. It expressly acknowledged

that an acquittal proves only failure of proof beyond a reasonable doubt and did not

decide the Fifth and Sixth Amendment question presented here. Booker later

described Watts as presenting a “very narrow question.” 543 U.S. at 240 n.4.

Nor does § 3661 settle the issue. A statute allowing broad information at

sentencing cannot override constitutional limits on who must find a fact, under what

burden, and with what legal effect. Courts may learn about a wide range of conduct

without using a jury-rejected charge to raise the Guidelines benchmark. Amendment

826 itself demonstrates the distinction.

C. The advisory Guidelines’ anchoring effect supplies the necessary

constitutional link.

The government may respond that Franklin’s statutory maximum did not

change. But constitutional doctrine looks to operation as well as labels. Peugh held

11

that advisory Guidelines can violate the Ex Post Facto Clause because they create a

significant risk of increased punishment. Molina-Martinez recognized that an

incorrect range ordinarily affects substantial rights because it anchors the sentence.

The same institutional facts matter here.

The range was not a passing reference. Federal law required the district court to

calculate it and begin there. Appellate law reviewed the resulting sentence in relation

to it. Acquitted heroin increased Franklin’s starting range from 51–63 to 151–188

months, and the district court imposed exactly the bottom of the higher range on the

grouped counts. The additional § 924(c) variance does not erase the constitutional

error embedded in that starting point; sentencing proceeded from the wrong anchor.

At minimum, the Due Process Clause requires more than a preponderance before

jury-rejected conduct can add a decade to the benchmark. But the sound

constitutional rule is categorical for charged-and-acquitted conduct: once the

government elects to charge a fact and the jury acquits, the fact may not be used to

increase the Guidelines range or otherwise aggravate punishment.

IV. This case cleanly presents the question and warrants correction.

Franklin preserved his Fifth and Sixth Amendment objection. The Eighth

Circuit squarely decided it and relied on a rule applied throughout that circuit. There

is no procedural obstacle and no dispute that the heroin conduct drove a ten-level

increase.

The error was consequential. The correct range on the grouped counts was 51–

63 months; the court instead used 151–188 months and imposed 151. The Eighth

12

Circuit’s own later decision in Schneider recognizes that an acquitted-conduct error

affecting the range creates a reasonable probability of a lower sentence. The upward

variance on the consecutive firearm count rested on separate considerations and does

not make the range error harmless.

Franklin also cannot benefit from Amendment 826 through ordinary retroactive

review. This case therefore offers a direct and concrete vehicle to decide the question

that Members of this Court have repeatedly identified, that Erlinger has clarified,

and that the Commission’s intervention has made more urgent.

CONCLUSION

The petition for a writ of certiorari should be granted. The Court should reverse

the judgment below or vacate and remand for resentencing without using conduct

underlying the heroin acquittal to increase Franklin’s punishment.

Dated: August 31, 2026

Respectfully submitted,

JOHNSTON LAW FIRM LLC

By:

/s/ J. Justin Johnston

Johnston Law Firm LLC

811 Grand Blvd. #101

Kansas City, Missouri 64106

Telephone: (816) 739-4538

jjj@johnstonlawkc.com

Counsel for Petitioner

13

Appendix A

Opinion, United States v. Franklin, et al., No. 23-3118 (8th Cir., June 1, 2026)

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 23-3118

___________________________

United States of America

Plaintiff - Appellee

v.

Roy O. Franklin, Jr., also known as Roy

Defendant - Appellant

___________________________

No. 23-3123

___________________________

United States of America

Plaintiff - Appellee

v.

Ladele D. Smith, also known as Dellio, also known as Dog

Defendant – Appellant

___________________________

Appellate Case: 23-3118

Page: 1

Date Filed: 06/01/2026 Entry ID: 5645930

No. 23-3228

___________________________

United States of America

Plaintiff - Appellee

v.

Gary O. Toombs

Defendant - Appellant

___________________________

No. 23-3280

___________________________

United States of America

Plaintiff - Appellee

v.

David J. Duncan, IV, also known as Deej, also known as DJ

Defendant - Appellant

____________

Appeal from United States District Court

for the Western District of Missouri - Kansas City

____________

Submitted: January 15, 2025

Filed: June 1, 2026

____________

Before GRASZ, STRAS, and KOBES, Circuit Judges.

____________

-2Appellate Case: 23-3118

Page: 2

Date Filed: 06/01/2026 Entry ID: 5645930

KOBES, Circuit Judge.

Roy Franklin Jr., Ladele Smith, Gary Toombs, and David Duncan IV were

members of a sprawling drug-trafficking conspiracy in Kansas City, Missouri that

lasted from 2011 to 2019. A jury found them guilty of various drug, firearm, and

money-laundering offenses. We affirm their convictions and sentences.

I. Background

Smith and Duncan were close friends who formed a music group called 246,

named after the Kansas City streets where they grew up. Smith was the star, and he

rapped about guns, violence, selling drugs, and making money. Social media posts

and music videos show Smith, Duncan, and Franklin with guns, luxury goods, and

large amounts of cash. According to the group’s sound engineer, their music was

meant to be “catchy, flashy, street,” and the lyrics suggested “a persona of a certain

lifestyle” that was meant to sell albums. They hung out and stored guns at a house

Toombs rented on Kensington Avenue, where various drug-trafficking activity took

place.

One evening in September 2019, Franklin went to the house and loaded guns

into a black Jeep Cherokee. Franklin and Smith then sped to the intersection of 35th

and Woodland, where Duncan had a store. Franklin drove, while Smith shot at two

men outside the store. They turned around, drove by again, and fired more shots.

The men returned fire. Franklin and Smith returned to the Kensington Avenue house

less than 15 minutes after they had left. Franklin then regaled a cooperating

individual (CI) with the story, explaining that Duncan called and said that two men

outside the store were going to kill him. The CI took photos of the Jeep’s shattered

back windshield and damaged passenger-side mirror.

-3Appellate Case: 23-3118

Page: 3

Date Filed: 06/01/2026 Entry ID: 5645930

Before trial, the district court 1 denied Franklin’s motion to suppress evidence

from social media searches and wiretaps. It also denied motions in limine to exclude

Smith’s rap lyrics and evidence about the defendants’ affiliation with the 246 group.

The district court decided to admit the cooperating individual’s testimony about the

drive-by shooting.

During the three-week trial, the Government argued that the 246 group was

also a drug-trafficking organization. Smith, Duncan, Franklin, Toombs, and several

others sold drugs, including marijuana, oxycodone, cocaine, and heroin. The

Government presented evidence of controlled buys, photos and videos from police

surveillance, social media posts and music videos by the defendants, messages

among 246 gang members, and texts and recorded phone calls among the members

and with others. A search of the Kensington Avenue house revealed drugs and

paraphernalia, including 295 grams of heroin, seven cell phones, five guns, a tactical

vest labeled “246 Brothership,” ammunition, and other evidence of drug-cutting and

distribution. Financial records revealed that Duncan and Smith deposited substantial

amounts of cash into their bank accounts and spent lavishly, despite having no

reported income.

The district court refused Franklin’s request to instruct the jury on entrapment

and Toombs’s request for a buyer-seller instruction. The jury convicted the

defendants on the counts discussed below.

II. Discussion

A. Roy Franklin Jr.

Franklin was convicted of nine offenses: conspiracy to distribute less than 500

grams of cocaine, some amount of oxycodone, and a mixture containing marijuana,

1

The Honorable David Gregory Kays, United States District Judge for the

Western District of Missouri.

-4Appellate Case: 23-3118

Page: 4

Date Filed: 06/01/2026 Entry ID: 5645930

21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; conspiracy to possess firearms in

furtherance of a drug-trafficking crime, 18 U.S.C. § 924(o); drive-by shooting, 18

U.S.C. § 36; discharging a firearm in furtherance of a crime of violence, 18 U.S.C.

§ 924(c)(1)(A)(iii); maintaining a drug-involved premises, 21 U.S.C. § 856(a)(1)

and (b); two counts of distribution of marijuana, 21 U.S.C. § 841(a)(1) and

(b)(1)(D); and two counts of distribution of marijuana near a school, 21 U.S.C.

§§ 841(a)(1) and 860. He was sentenced to 360 months in prison.

1. Motion to Suppress Evidence of Instagram Posts and Messages

Franklin argues that the district court erred in denying his motion to suppress.

He claims that the search warrant for his Instagram account was not supported by

probable cause. See U.S. Const. amend. IV (“no Warrants shall issue, but upon

probable cause”). “Probable cause exists when the totality of circumstances shows

‘a fair probability that contraband or evidence of a crime will be found in a particular

place.’” United States v. Ivey, 91 F.4th 915, 917 (8th Cir. 2024) (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)). Our review is limited to whether the issuing judge

had a “substantial basis” for finding probable cause. Id. (citing Gates, 462 U.S. at

238–39).

FBI Special Agent Douglas McKelway’s warrant application and affidavit

provided that “substantial basis.” He stated that confidential sources, the Kansas

City Police Department, and the FBI had identified Franklin as a member of the 246

organization. He attached information discovered in an earlier search of Smith’s

Instagram account. In an April 2018 group chat among 246 members, the group

discussed disrespect by someone they thought was an ally and “handling shit.”

Franklin wrote “Hit em up GANG.” Franklin later wrote “Gtta start Droppin shit

them pull ups be a waste of time,” which McKelway interpreted as using a drop

location for drugs instead of having the dealer meet the buyer. And in a conversation

between the same 246 members in May, they seemed to discuss killing a rival gang

member, although Franklin did not say anything.

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Franklin’s affiliation with the group and his participation in group chats

discussing violence against rivals and drug distribution provided a basis for the

issuing judge to find that evidence of a drug-trafficking conspiracy would probably

be found in Franklin’s Instagram records. Franklin argues that his two comments

were not enough, but the judge properly considered the full transcript of the group

chat. Cf. United States v. Lukassen, 103 F.4th 1325, 1329 (8th Cir. 2024) (“Whether

an officer has established probable cause to search depends on the totality of the

circumstances.”). And Franklin’s argument that his comments “could mean

anything” is unpersuasive when Agent McKelway explained the context and what

they meant to drug dealers. See United States v. Mims, 122 F.4th 1021, 1031 (8th

Cir. 2024) (“Conduct that appears innocuous . . . may be significant to an officer

with training and experience in ‘the practices of drug smugglers and the methods

used to avoid detection.’” (citation omitted)).

Franklin also argues that the warrant failed to “particularly describ[e] the

place to be searched,” U.S. Const. amend. IV. The Fourth Amendment’s

particularity requirement prevents “a general, exploratory rummaging in a person’s

belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see Payton v.

New York, 445 U.S. 573, 585 (1980). “In assessing whether a warrant is sufficiently

particular, we consider the purpose for which the warrant was issued, the nature of

the items to which it is directed, and the total circumstances surrounding the case.”

Ivey, 91 F.4th at 918.

The warrant required Instagram to disclose information and activity related to

Franklin’s account. See 18 U.S.C. § 2703 (required disclosure of customer

communications or records). It then authorized officers to seize evidence related to

certain drug-distribution and money-laundering offenses from January 2017 to

September 2018. See Fed. R. Crim. P. 41(e)(2)(B); Lindell v. United States, 82 F.4th

614, 621–22 (8th Cir. 2023) (explaining that Rule 41(e)(2)(B) “provides for a twostep process to search electronic items”). That evidence included communications

and photographs about drug trafficking and manufacturing, gang involvement,

firearms, homicides, violence, recruitment of new members, strategies to avoid

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apprehension, and destruction of evidence, as well as records identifying who

created, used, or communicated with Franklin’s Instagram account.

The warrant was sufficiently particular. It identified the Instagram account to

be searched, the information to be seized, and the time frame for the data. This is

not meaningfully different from the warrant we upheld in United States v. Ivey,

which authorized the search of a cell phone “for evidence related to firearms,

ammunition, and possession and ownership of the seized firearm.” 91 F.4th at 917.

That Franklin’s Instagram account likely contained information unrelated to the

criminal investigation “did not transform the warrant into an impermissible general

warrant.” See id. at 918 (“Evidence of the offense could have been found anywhere

in the phone, and ‘a warrant need not be more specific than knowledge allows.’”

(citation omitted)); Lindell, 82 F.4th at 620 (“While the phone very likely also

contains a plethora of information unrelated to the government’s investigation, . . .

this fact does not transform the warrant into a general warrant.”). And where the

affidavit included information about an ongoing drug conspiracy with specific

incriminating conversations in April and May 2018, the request for data from

January 2017 to September 2018 was not overbroad.2 See United States v. ZelayaVeliz, 94 F.4th 321, 340 (4th Cir. 2024) (while a “total lack of a time period in a

social media warrant raises a problem,” a two-year period of disclosure was

sufficiently particular because the “extensive nature of the conspiracy being

investigated . . . meant that less temporal specificity was required” (cleaned up)).

2. Motion to Suppress Wire and Electronic Communications

The Government received authorization to tap two of Franklin’s phones,

“target telephone 6” (TT6) and “target telephone 9” (TT9). The issuing judge found

that the application met the requirements of 18 U.S.C. § 2518(3): there was probable

cause to believe that Franklin was committing drug-trafficking and firearm offenses;

2

Facebook (then Instagram’s parent corporation) produced data from

September 2017 to September 2018.

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he had used the phones in connection with those offenses; normal investigative

procedures had failed, would fail, or were too dangerous; and interceptions would

likely reveal communications about drugs and guns.

Franklin argues that the district court erred in denying his motion to suppress

because the wiretap application failed to establish probable cause that he was

engaged in criminal activity or that a wiretap would reveal evidence of criminal

activity. “The probable cause requirement in § 2518(3) is the same as the Fourth

Amendment’s probable cause requirement,” and our review is once again “limited

to determining whether the judge had a ‘substantial basis’ for finding probable

cause.” Mims, 122 F.4th at 1030 (citation omitted).

Agent McKelway’s affidavits establish a fair probability that wiretaps on TT6

and TT9 would reveal evidence of drug-trafficking and firearm offenses. They

included information from a confidential source who told law enforcement Franklin

was involved in drug sales, but mainly worked as an enforcer for the 246. TT6 was

linked to Franklin’s Instagram account, and the affidavit included direct-message

conversations with previous and potential buyers. Franklin gave TT6’s number to

buyers and others, while using coded language to discuss drug sales and possibly a

firearm purchase. Previous wiretaps intercepted calls with Franklin using TT6 to

sell high-grade marijuana, Percocet, and codeine cough syrup and using TT9 to plan

a robbery and buy “pills.”

Franklin argues that the evidence from his Instagram account was illegally

seized and should not be used to establish probable cause for the wiretaps, but we

have previously decided that it was legal. He argues that Agent McKelway’s

interpretations of the “vaguely worded conversations” could not establish probable

cause, but we have already explained why a judge could credit those interpretations.

See Mims, 122 F.4th at 1031 (weight given to agent’s interpretation of the “allegedly

innocuous conversations” as discussing the purchase and sale of drugs). And even

if we were to excise the information given by the confidential source, which Franklin

argues is unreliable, the application would still establish a substantial basis for

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finding that the TT6 and TT9 wiretaps would likely reveal evidence of criminal

activity. See O’Neil v. United States, 966 F.3d 764 (8th Cir. 2020) (considering

whether the affidavit was sufficient to establish probable cause after removing

incorrect information).

Franklin also claims that the affidavit failed to establish necessity and that

officers should have been required to use additional traditional investigative efforts

before a wiretap. Section 2518(3)(c)’s “necessity requirement is satisfied when law

enforcement establish that ‘conventional investigatory techniques have not been

successful in exposing the full extent of the conspiracy and the identity of each

coconspirator.’” Mims, 122 F.4th at 1029 (cleaned up). The requirement “prevents

the government from routinely using wiretaps as the initial step in an investigation,”

but officers need not “exhaust all possible techniques before applying for a wiretap.”

United States v. Perez-Trevino, 891 F.3d 359, 370 (8th Cir. 2018) (cleaned up).

The district court did not clearly err in finding that the wiretaps were

necessary. See id. (standard of review). Agent McKelway explained that officers

had conducted surveillance on Franklin and others associated with the 246

organization but had limited success because the men used a variety of vehicles,

were aware of surveillance, and used counter-surveillance to elude officers. Officers

also used GPS technology, cell site locations, and covert surveillance cameras to

monitor movement, but these techniques could produce only limited evidence.

Confidential sources provided some historical and organizational information, but

generally did not complete controlled buys or record conversations, because they

lacked access or it was too dangerous. Associates typically refused to talk after their

arrests. And although a financial investigation was ongoing, nothing revealed a

large-scale movement of money. Franklin argues that officers should have done

more, but officers are not required to use wiretaps only as a “last resort.” Mims, 122

F.4th at 1029 (citation omitted). He also claims that Agent McKelway’s claims of

necessity were not sufficiently specific, but “[b]oilerplate assertions of necessity are

not fatal to the affidavit” because “[d]rug conspiracies contain common elements

that render some conventional investigatory techniques ineffective in each case.” Id.

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3. Entrapment Instruction on Conspiracy to Distribute Cocaine

At trial, Franklin’s attorney elicited evidence that government agents gave the

CI the idea to purchase cocaine; that Franklin had not previously sold the CI cocaine,

but said it “ain’t shit to get”; that the CI paid Franklin $200 as a finder’s fee to get

cocaine; and that Franklin didn’t usually deal cocaine but served as a middleman to

make some money. Based on that testimony, Franklin requested an entrapment

instruction on cocaine. The Government objected and proffered that it had video

evidence of Franklin telling a story about how he and a co-defendant “bust[ed] serves

of cocaine.” The Government had agreed to not introduce the video, but—if the

court allowed the entrapment instruction—it would present it to show that Franklin

was predisposed to selling cocaine. The district court ruled that Franklin was not

entitled to the instruction, and the Government did not introduce the video.

We review de novo the denial of an entrapment instruction. United States v.

John, 27 F.4th 644, 649 (8th Cir. 2022). “[A] valid entrapment defense has two

related elements: government inducement of the crime, and a lack of predisposition

on the part of the defendant to engage in the criminal conduct.” Mathews v. United

States, 485 U.S. 58, 63 (1988). “If the defendant exhibits any predisposition to

engage in the criminal conduct, the district court need not instruct the jury on

entrapment.” United States v. Berg, 178 F.3d 976, 980 (8th Cir. 1999); United States

v. Neal, 990 F.2d 355, 358 (8th Cir. 1993) (“[I]f predisposition exists, then there is

not sufficient evidence from which a reasonable jury could find entrapment.”).

Even if we were to agree with Franklin that the Government induced him to

sell cocaine, he has not shown a lack of predisposition. “Predisposition . . . focuses

upon whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary

criminal’ who readily availed himself of the opportunity to perpetrate the crime.”

Mathews, 485 U.S. at 63 (citations omitted). Franklin was not an “unwary innocent.”

He was a longtime member of a drug conspiracy that involved the sale of cocaine,

even if he usually sold marijuana and sometimes sold codeine and oxycodone.

Cocaine may not have been Franklin’s “forte,” but the CI testified that Franklin

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“always talked about it. I mean, like, it ain’t nothing to get.” See Neal, 990 F.2d at

358 (defendant predisposed when he knew people who could supply cocaine, called

a potential supplier, and intended to make a profit off a drug deal); Berg, 178 F.3d

at 980 (“His never having ‘cooked’ such a large batch [of methamphetamine] need

not necessarily mean he was not predisposed to do so.”). Because the evidence

showed that Franklin was “predisposed—i.e., willing and ready” to sell cocaine

when the opportunity arose, he was not entitled to an entrapment instruction. See

United States v. Lard, 734 F.2d 1290, 1293 (8th Cir. 1984).

4. Sentencing

The district court grouped together the counts of conviction, U.S.S.G.

§ 3D1.2(b) and (d), except for discharging a firearm in furtherance of a crime of

violence, which required a mandatory consecutive sentence, 18 U.S.C.

§ 924(c)(1)(A)(iii). Franklin’s total offense level was 32, his criminal history

category was III, and the Guidelines range was 151 to 188 months in prison, plus

120 months on the firearm count. The district court imposed concurrent sentences

for the grouped counts, the greatest being 151 months in prison. It varied up to 209

months on the firearm count, for a total sentence of 360 months in prison.

Franklin argues that the upward variance was substantively unreasonable

because the conduct the court relied on for the variance—his criminal history, a fight

while incarcerated, underlying offense conduct—was already accounted for in the

Guidelines calculations. But “[a] district court is not prohibited ‘from determining

that the weight the Guidelines assigned to a particular factor was insufficient.’”

United States v. Donahue, 959 F.3d 864, 867 (8th Cir. 2020) (citation omitted). The

district court explained that Franklin’s criminal history revealed a disregard for the

safety of others. The court found that Franklin’s beating of an inmate “t[old] a story

[of] what we can expect from Mr. Franklin if he’s let go.” And most importantly,

the facts underlying the firearm conviction justified the variance: Franklin

committed a drive-by shooting in the early evening on a street lined with stores,

homes, and a daycare. The district court found it necessary to protect the public

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from further crimes by Franklin, saying “we make the community maybe just a little

bit safer when we take people out who engage in drugs and guns and drive by

shootings . . . like we had in this case.” We have affirmed upward variances in other

cases involving dangerous shootings, even when the conduct was already accounted

for in the Guidelines, and we do so again here. See, e.g., United States v. Vaca, 38

F.4th 718, 723–24 (8th Cir. 2022) (78-month upward variance where defendant shot

at another person); United States v. Godfrey, 863 F.3d 1088, 1099–1100 (8th Cir.

2017) (83-month upward variance where the defendant shot seven bullets into a

neighborhood park).

Franklin also argues that the district court’s use of acquitted conduct to

increase his sentence violated his Fifth and Sixth Amendment rights. But “a

sentencing court may consider the conduct underlying an acquitted charge so long

as that conduct has been proved by a preponderance of the evidence.” United States

v. Lasley, 832 F.3d 910, 914 (8th Cir. 2016) (citation omitted); see United States v.

Webb, 545 F.3d 673, 677 (8th Cir. 2008) (“A preponderance of evidence standard of

proof applies to judicial fact finding at sentencing, a standard that satisfies both the

Fifth Amendment’s guarantee to due process and the Sixth Amendment right to trial

by jury.”). Franklin acknowledges our precedent, but seeks to preserve his argument

for further review.3 See United States v. Myore, 142 F.4th 606, 613 (8th Cir. 2025)

(“These constitutional issues are the subject of ongoing debate, but our panel is

bound by this controlling Eighth Circuit precedent.”).

B. Ladele Smith & David Duncan

Ladele Smith was convicted of conspiracy to distribute 1 kilogram or more of

heroin and some amount of mixture containing marijuana, 21 U.S.C. §§ 841(a)(1),

3

After Franklin was sentenced, the U.S. Sentencing Commission amended

U.S.S.G. § 1B1.3 to generally exclude acquitted conduct from relevant conduct.

U.S.S.G. App. C., amend. 826 (effective Nov. 1, 2024); see U.S.S.G. § 1B1.11(a)

(“The court shall use the Guidelines Manual in effect on the date that the defendant

is sentenced.”).

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(b)(1)(A), and 846; conspiracy to possess firearms in furtherance of drug trafficking,

18 U.S.C. § 924(o); possession of firearms in furtherance of a drug-trafficking crime,

18 U.S.C. § 924(c)(1)(A)(i); drive-by shooting, 18 U.S.C. § 36; discharge of a

firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii);

maintaining a drug-involved premises, 21 U.S.C. § 856(a)(1) and (b); distribution of

marijuana, 21 U.S.C. § 841(a)(1) and (b)(1)(D); distribution of marijuana near a

school, 21 U.S.C. §§ 841(a)(1) and 860; four counts of distribution of heroin, 21

U.S.C. §§ 841(a)(1) and (b)(1)(B)–(C); and four counts of distribution of heroin near

a school, 21 U.S.C. §§ 841(a) and 860. He was sentenced to 420 months in prison.

David Duncan was convicted of conspiracy to distribute less than 100 grams

of heroin and some amount of oxycodone, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and

846; drive-by shooting, 18 U.S.C. § 36; discharge of a firearm in furtherance of a

crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii); possession with intent to distribute

oxycodone and hydrocodone, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); possession of a

firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i); and five

counts of money laundering, 18 U.S.C. § 1956(a)(1)(B)(i). He was sentenced to 360

months in prison.

1. Evidentiary Rulings

Over Smith’s and Duncan’s objections, the CI testified to what Franklin had

told him about the drive-by shooting. The district court ruled that the testimony was

not hearsay because it was a statement “offered against an opposing party” and

“made by the party’s coconspirator during and in furtherance of the conspiracy.”

See Fed. R. Evid. 801(d)(2)(E). We review evidentiary decisions for abuse of

discretion. United States v. Goodman, 88 F.4th 764, 767 (8th Cir. 2023).

A statement is not hearsay if the Government proves by a preponderance of

the evidence that (1) a conspiracy existed, (2) the defendant and declarant were

members of the conspiracy, and (3) the declaration was made during the course and

in furtherance of the conspiracy. United States v. Cathey, 997 F.3d 827, 834 (8th

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Cir. 2021). Smith and Duncan do not dispute the conspiracy’s existence; that the

CI, Franklin, Smith, and Duncan were members; or that the statements were made

during the conspiracy. They argue only that the Government failed to prove that the

statements were made “in furtherance of the conspiracy” because Franklin’s

statements about the drive-by shooting did not advance the conspiracy but merely

informed the CI of past activities unconnected to the drug conspiracy. See United

States v. Mitchell, 31 F.3d 628, 632 (8th Cir. 1994) (“A statement that simply

informs a listener of the declarant’s criminal activities is not made in furtherance of

the conspiracy; instead, the statement must ‘somehow advance the objectives of the

conspiracy.’” (citation omitted)). And without a nexus between the statements and

the conspiracy, they argue that the CI’s testimony was inadmissible hearsay.

We disagree. Consider the context. The CI was becoming a more valuable

and trusted member of the conspiracy when Franklin told him about the shooting. A

few weeks before the shooting, Smith offered him distribution quantities of heroin,

a drug the CI had not sold before. And for a $1,000 fee, Smith taught the CI his

“million dollar game” recipe to cut heroin, reduce the drug purity, increase the

quantity, and make more money on each sale.

When Franklin told the CI about the shooting immediately after returning to

the Kensington Avenue house, he identified a threat the conspirators faced and

taught the CI how they handled it. See United States v. Darden, 70 F.3d 1507, 1529

(8th Cir. 1995) (statements describing past events are “in furtherance of the

conspiracy” if they “keep co-conspirators abreast of current developments and

problems facing the group”); see also United States v. Rivera-Donate, 682 F.3d 120,

132 (1st Cir. 2012) (statements about related murder were “in furtherance of the

conspiracy” because they “served to keep the members of the conspiracy up-to-date

on important developments relating to the organization”). When Franklin relayed

Duncan’s command to kill the two men who were plotting an ambush, he was telling

the CI that Duncan was a valuable member who relied on Franklin for protection.

When Franklin told the CI that he and Smith went to protect Duncan and recounted

the shooting, he gave context about their roles as enforcers within the conspiracy

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and the group’s reputation for violence and retaliation. See United States v. Kitchen,

149 F.4th 1019, 1025 (8th Cir. 2025) (“statements that identify a co-conspirator’s

role” are “in furtherance of the conspiracy”). So the district court neither clearly

erred nor abused its discretion in finding that the statements were “in furtherance of

the conspiracy.” See Goodman, 88 F.4th at 767 (noting the “open question whether

admissibility under Rule 801(d)(2)(E) is reviewed under an abuse of discretion

standard or whether the 801(d)(2)(E) factfinding is first reviewed for clear error and

the ultimate decision to admit or exclude is then reviewed for abuse of discretion”).

Turning to the rap lyrics and gang affiliation, the district court denied Smith’s

and Duncan’s motions to exclude the evidence as irrelevant and unfairly prejudicial.

This evidence included five minutes of interview clips, including one where Duncan

wore a 246-branded baseball hat and talked about how the group came together and

their music. He referred to the 246 as “the gangway” and said that he “be talking

that real shit, spittin’ that real shit. . . . Everything 100% authentic.” It also included

seven minutes of clips from music videos that featured Smith rapping, with Duncan

and others making appearances. For example, in one clip, Smith raps:

Ah, shit. Gang, gang, gang.

246. Talk to them, bro.

…

Sellin’ chicken out the window like I work at Popeyes.

…

All I talk is Gs. All I sell is units.

…

I sell dope, I don’t sell Kush because that shit is slow.

$15k profit every week, know I’m getting dough.

…

Gang. Gang. Gang. Gang. Gang. 246.

And in another, Smith raps:

Got our pistols in the party, ops better not come in.

Gripping on this ten, bro got the FN.

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Yeah I killed ya mans, that 50 made him dance.

Got dissed by some rappers, they used to be my fans, damn.

This evidence was properly admitted. Its relevance is obvious, tending to

show that Smith and Duncan were part of a drug-trafficking conspiracy. See Fed.

R. Evid. 401; United States v. Moore, 639 F.3d 443, 448 (8th Cir. 2011) (“The

recordings [of the defendant rapping] were relevant to prove that he knew cocaine

prices, used drug code words, and sold drugs to supplement his income.”). Smith’s

lyrics showed they knew the lingo, they knew about selling drugs, they knew about

guns. The videos showed the defendants hanging out together with guns and cash.

And the interview with Duncan explained the group’s origins and suggested there

was truth to the lyrics.

Against the high probative value of the evidence, we consider the danger of

unfair prejudice. See Fed. R. Evid. 403. Unfair prejudice is “an undue tendency to

suggest decision on an improper basis,” id. advisory committee note, and we agree

with the district court that there was little danger of that here. The district court

explained that the evidence was limited both in time—“under 12 minutes of what

will likely be a 3-week trial”—and in weight—“it is commonsense that not all music

is autobiographical fact.” D. Ct. Order of Aug. 22, 2022 at 13–14. The Government

did not refer to 246 as a gang, and Smith’s and Duncan’s references to “gang” or

“the gangway” were “not gratuitous or unfairly prejudicial.” Id.; see United States

v. Gaines, 859 F.3d 1128, 1131 (8th Cir. 2017) (“[G]ang-related evidence is often

admissible where the defendant is a gang member himself, the issues in the case

concern the mere fact of a defendant’s gang membership rather than sanctioning a

wide ranging inquiry into the generic criminality and violent dispositions of gangs,

and the evidence is generally an unavoidable incident of presenting other permissible

evidence.” (cleaned up)). The music videos and interview were prejudicial only “in

the sense of being detrimental to” Smith’s and Duncan’s cases, which is not unfair

prejudice.4 See United States v. Huyck, 849 F.3d 432, 440 (8th Cir. 2017).

4

Smith and Duncan claim that the admission of the rap lyrics violated their

First, Fifth, and Sixth Amendment rights, but neither developed any argument for

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Smith and Duncan complain that the Government insinuated that the 246 was

a gang and that the jury found them guilty by association. But this case is not like

the one they rely upon, United States v. Roark, 924 F.2d 1426 (8th Cir. 1991). There,

the Government called an expert witness and an undercover agent to testify about

the nationwide Hell’s Angels motorcycle club, its structure and numerous chapters,

and its illegal drug activities. Id. at 1430–31. The “theme of the trial” was “guilty

by association,” and the Government “relentless[ly] attempt[ed] to convict Appellant

through his association with the motorcycle club.” Id. at 1434, 1432. Here, the

defendants’ association with the 246 did not secure their convictions. The evidence

proved each defendant’s role in the conspiracy and individual criminal conduct. See

United States v. Ellison, 616 F.3d 829, 834 (8th Cir. 2010) (“Our concern under Fed.

R. Evid. 403 is that the relevance of gang related evidence not be overwhelmed by

the risk that the jury will rest a guilty verdict solely on a defendant’s gang

affiliation.”). The evidence also proved that this specific, local group—the Kansas

City-based 246—both made music and trafficked drugs, so there was nothing

improper about the Government calling the 246 a drug-trafficking organization in

opening statement or closing argument. See United States v. Shoff, 151 F.3d 889,

893 (8th Cir. 1998) (no prosecutorial misconduct when “opening was limited to

describing what the government would attempt to prove” and “closing was carefully

limited to arguing what the evidence had proved”).

2. Sufficiency of the Evidence for the Drive-by Shooting Convictions

The drive-by shooting statute prohibits firing a weapon into a group of two or

more people “in furtherance . . . of a major drug offense and with the intent to

intimidate, harass, injure or maim.” 18 U.S.C. § 36(b)(2) (emphasis added); see id.

§ 36(a)(2) (defining “major drug offense” to include drug-trafficking conspiracies).

reversal or for excluding the evidence based on their constitutional rights. See

United States v. Midder, 139 F.4th 649, 652 n.3 (8th Cir. 2025) (declining to consider

an argument where defendant made only a “passing reference” to it and did not cite

any legal authority).

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Smith and Duncan argue that the evidence was insufficient to establish that the

September 2019 shooting was “in furtherance of” the drug-trafficking conspiracy.5

We review sufficiency of the evidence de novo, viewing the evidence in the light

most favorable to the jury’s verdict. United States v. Blamah, 143 F.4th 1010, 1015

(8th Cir. 2025). We affirm “unless no reasonable jury could have found the

defendant guilty beyond a reasonable doubt.” Id. (citation omitted).

The evidence showed that Smith shot into a group of two or more people,

causing grave risk of harm to human life. After Duncan called for protection,

Franklin went to the Kensington Avenue house in his Cadillac. The pole camera

showed Franklin loading guns into a black Jeep in the driveway at 7:07 p.m. The CI

testified that Smith joined Franklin, and city cameras recorded the Jeep driving west

toward the intersection of 35th and Woodland. The Shot Spotter system recorded

shots fired. Franklin’s cell phone pinged near the area. Video from the pole camera

showed the Jeep return to the Kensington Avenue house at 7:21, where the men

exited and walked toward the door. Agent McKelway identified Franklin and Smith,

with Smith holding a gun in his right hand.6 Casings from the scene matched guns

that were later seized from the Jeep and the Kensington Avenue house. The CI told

the jury what Franklin said happened.

And a reasonable jury could find that the shooting was in furtherance of the

drug-trafficking conspiracy. Franklin and Smith answered the call to protect

Duncan, who was an important member of the conspiracy. They met at the house

5

Smith and Duncan ask to incorporate their hearsay arguments, but under

Federal Rule of Evidence 801(d)(2)(E), we consider whether Franklin’s statements

to the CI were in furtherance of a conspiracy. For conviction, the record must

support a finding that the shooting itself was in furtherance of the drug-trafficking

conspiracy.

6

Smith argues that “insufficient evidence exists to even place [him] at the

scene of the alleged shooting,” but the CI’s testimony, the pole camera footage, and

Agent McKelway’s identification is enough.

-18Appellate Case: 23-3118

Page: 18

Date Filed: 06/01/2026 Entry ID: 5645930

where they stored guns and trafficked drugs. They grabbed guns from the house,

shot at the men who were threatening Duncan, and returned to the house. We have

said that the term “in furtherance of” means “furthering, advancing, or helping

forward.” United States v. Fuget, 137 F.4th 690, 691 (8th Cir. 2025) (citation

omitted). So while there is no direct evidence about who the men were or the motive

of the threats against Duncan, a fair inference—given the timing, the conspirators

involved, and the circumstances—is that the shooting was related to drugtrafficking. And even if it wasn’t, a reasonable jury could find that the shooting

furthered the conspiracy by protecting Duncan and promoting the group’s reputation

for swiftly and violently responding to threats.7 See United States v. Flax, 988 F.3d

1068, 1075 (8th Cir. 2021) (sufficient evidence to prove that defendant “was

furthering the conspiracy by protecting the [gang’s] reputation and influence and

thus the organization’s ability to further its criminal enterprise”); United States v.

Carter, 481 F.3d 601, 611 (8th Cir. 2007) (holding certain acts of violence were “in

furtherance of drug trafficking” when evidence indicated “protection” of the drugtrafficking conspiracy and “retaliation” against rivals), reinstated in relevant part by

538 F.3d 830, 831 (8th Cir. 2008).

3. Sentencing

Smith and Duncan objected to the drug-quantity findings in their presentence

reports. The Guidelines instruct the district court to “approximate the quantity of

the controlled substance” when the amount of drugs seized “does not reflect the scale

of the offense.” U.S.S.G. § 2D1.1 cmt. n.5. The court may convert seized or

laundered money into drug quantities after considering “the price generally

obtained” for the drug and “financial or other records.” See id.; United States v.

Grays, 638 F.3d 569, 571–72 (8th Cir. 2011). It may also “consider all transactions

known or reasonably foreseeable to the defendant that were made in furtherance of

7

Having affirmed the drive-by shooting convictions, we likewise affirm the

convictions for discharging a firearm during and in relation to the drive-by shooting,

18 U.S.C. § 924(c)(1)(A)(iii).

-19Appellate Case: 23-3118

Page: 19

Date Filed: 06/01/2026 Entry ID: 5645930

the conspiracy.” United States v. Johnson, 75 F.4th 833, 846 (8th Cir. 2023) (citation

omitted). We review drug-quantity findings for clear error. Id.

Officers seized $32,127 in cash from Smith’s home, which was converted into

321.27 grams of heroin based on evidence that heroin sold for $100 per gram.

Officers seized $7,181 from Duncan’s home, and financial records revealed that he

laundered $272,231 through his bank account, which together was converted into

2,794.12 grams of heroin. Their presentence reports relied on these heroin amounts,

which drove up their base offense levels and their Guidelines sentencing ranges.

Smith specifically objected to the cash to drug-weight conversion, and the probation

officer responded that the cash was converted because it was found at his home

“along with firearms, drugs, cell phones, and other evidence of drug distribution

activity.” Duncan objected to “all the drug calculations” and “the drug weights used

to calculate” his base offense level and argued that he should be held responsible

only for the 108 grams of heroin he sold to a cooperating witness and the 10.35

kilograms of oxycodone found in his home. The district court overruled the

objections and adopted the PSR’s findings.8

Smith argues that the Government failed to prove that the seized cash was

drug-trafficking proceeds, citing his success as a rapper. An IRS agent testified that

Smith received approximately $28,000 from music aggregators but otherwise had

no legitimate income. Of the cash officers seized from Smith’s home, $20,000 was

hidden in his closet, $1,600 was stacked next to his Gucci fanny pack on the couch,

and $10,000 was tucked into the fanny pack, which Smith had been wearing at the

Kensington Avenue house mere hours before his arrest. Officers also found codeine,

expensive jewelry, cell phones, several magazines, and boxes of ammunition. The

Government presented evidence of Smith’s spending, including tens of thousands of

dollars at an upscale department store and on rental cars. With evidence that Smith

8

Smith and Duncan argue that the district court failed to make specific factual

findings on the cash to drug-weight conversions, but the court relied on the evidence

it heard at trial and probation’s response to their objections, which is specific enough.

-20Appellate Case: 23-3118

Page: 20

Date Filed: 06/01/2026 Entry ID: 5645930

sold heroin, had little legitimate income, spent lavishly, kept an unusual amount of

cash, and had been involved in a yearslong drug-trafficking conspiracy, the district

court did not clearly err in converting the cash to heroin.

Duncan similarly argues that the Government failed to prove that the seized

cash and laundered funds were heroin-trafficking proceeds. The evidence that

Duncan had worked at a car dealership when he was a teenager and that his aunt

occasionally gave him a few hundred dollars could neither account for the cash or

laundered funds nor pay for his luxury apartment, designer clothes, expensive

jewelry, or Dodge Challenger. So the money was drug money, and any error in

converting it into heroin instead of oxycodone was harmless. The district court said,

“If you had won all of your objections, I would have still come out in the same

place . . . based upon 18 U.S.C. § 3553(a) and my review of those factors.”9 See

United States v. Fisher, 965 F.3d 625, 632 (8th Cir. 2020) (“An incorrect Guidelines

calculation is harmless error where the district court specifies the resolution of a

particular issue did not affect the ultimate determination of a sentence, such as when

the district court indicates it would have alternatively imposed the same sentence

even if a lower guideline range applied.” (citation omitted)).

Smith argues that the district court erred by increasing his offense level by 2

for possessing a firearm, U.S.S.G. § 2D1.1(b)(1), because the conduct was already

punished in his consecutive 60-month sentence for possessing firearms in

9

Citing Booker, Duncan argues that it was error to attribute the conspiracy’s

drug quantities to him—including the 295 grams found at the Kensington Avenue

house—because the jury found that he conspired to distribute less than 100 grams of

heroin. See United States v. Booker, 543 U.S. 220 (2005). But Booker did not

disturb the precedent “that a sentencing judge could rely for sentencing purposes

upon a fact that a jury had found unproved (beyond a reasonable doubt).” Id. at 251;

see Johnson, 75 F.4th at 847 (a district court can rely on acquitted conduct at

sentencing, “so long as that conduct has been proved by a preponderance of the

evidence” (citation omitted)).

-21Appellate Case: 23-3118

Page: 21

Date Filed: 06/01/2026 Entry ID: 5645930

furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).10 See U.S.S.G.

§ 2K2.4 cmt. n.4 (specific offense characteristic for possession of a firearm does not

apply to the underlying drug-trafficking offense when “a sentence under this

guideline is imposed in conjunction with a sentence for an underlying offense”); see

United States v. Mays, 967 F.3d 748, 753 (8th Cir. 2020) (“The Commission in

Application Note 4 logically concluded that double counting occurs when a

guidelines enhancement ‘for possession . . . of an explosive or firearm’ is imposed

for an underlying offense when the total sentence will include consecutive

punishment for a § 924(c) firearm offense.” (citation omitted)). We agree, but the

error was harmless. The district court said it would have imposed the same sentence

even if it had sustained Smith’s objection. See Fisher, 965 F.3d at 632.

C. Gary Toombs

Gary Toombs was convicted of conspiracy to distribute 100 grams or more of

heroin and some amount of mixture containing marijuana, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 846; conspiracy to possess firearms in furtherance of a drugtrafficking crime, 18 U.S.C. § 924(o); and maintaining a drug-involved premises, 21

U.S.C. § 856(a)(1) and (b). He was sentenced to 151 months in prison.

1. Sufficiency of Evidence on All Counts

Toombs argues that the Government failed to prove that he joined the

conspiracy to distribute heroin and marijuana and to possess firearms in furtherance

of drug-trafficking. But the evidence showed that Toombs rented the Kensington

Avenue house, the utilities were in his name, and he went there occasionally. He

10

The district court imposed concurrent 240-month sentences on his

conspiracy, drive-by shooting, and heroin distribution convictions; concurrent 60and 120-month sentences on his marijuana distribution convictions; and consecutive

60- and 120-month sentences on his convictions for possession of firearms in

furtherance of a drug-trafficking crime and discharge of a firearm in furtherance of

a crime of violence.

-22Appellate Case: 23-3118

Page: 22

Date Filed: 06/01/2026 Entry ID: 5645930

had a conversation with Smith about “black” or “black ops,” during which Toombs

said he had “a couple of plays that should land.” Agent McKelway testified that

“black ops” is a code word for heroin; and a Kansas City Police detective testified

that “black” also means heroin. During another recorded conversation, Franklin said

he had a half-pound of marijuana for $1,750, and Toombs replied that he would “be

over when [he] g[o]t off.” There was also surveillance video of Toombs leaving the

Kensington Avenue house with a bulge under his shirt that McKelway testified was

consistent with the size of a one-pound bag of marijuana. Based on this, a reasonable

jury could find that Toombs knowingly and intentionally joined the conspiracy to

distribute heroin and marijuana, that he knew of the drug trafficking that occurred

and the cache of firearms that were kept at the Kensington Avenue house, and that

he maintained the drug-involved premises. And the district court did not abuse its

discretion when it denied Toombs a buyer-seller jury instruction, when the evidence

showed that Toombs purchased the drugs for resale. See United States v. Shavers,

955 F.3d 685, 696 (8th Cir. 2020) (defendant not entitled to buyer-seller instruction

“when the evidence shows that drugs are purchased for resale.”); United States v.

Boykin, 794 F.3d 939, 948 (8th Cir. 2015) (“Buyer-seller relationship cases involve

only evidence of a single transient sales agreement and small amounts of drugs

consistent with personal use.” (cleaned up)).

2. Sentencing

Toombs’s Guidelines sentencing range was 108 to 135 months in prison. The

district court varied up to 151 months, citing Toombs’s role in the conspiracy and

his extensive criminal history, which included felony drug distribution and domestic

violence convictions. Toombs argues that his sentence is substantively unreasonable

because the conduct the court relied upon for the variance was already accounted for

in the Guidelines calculations. Again, “[a] district court is not prohibited ‘from

determining that the weight the Guidelines assigned to a particular factor was

insufficient,’” Donahue, 959 F.3d at 867 (citation omitted), and the district court did

not abuse its discretion in imposing a sentence 16 months above the Guidelines

range.

-23Appellate Case: 23-3118

Page: 23

Date Filed: 06/01/2026 Entry ID: 5645930

III. Conclusion

Affirmed.

_____________________________

-24Appellate Case: 23-3118

Page: 24

Date Filed: 06/01/2026 Entry ID: 5645930

Appendix B

Judgment in a Criminal Case, United States v. Roy O. Franklin, Jr., No. 4:19-CR00315-DGK (W.D. Mo., September 19, 2023)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

UNITED STATES OF AMERICA

§

§

§

§

§

§

§

v.

ROY O. FRANKLIN, JR.

JUDGMENT IN A CRIMINAL CASE

Case Number: 4:19-CR-00315-DGK(2)

USM Number: 34404-045

John Justin Johnston

Defendant’s Attorney

THE DEFENDANT:

☒ was found guilty on Counts 1, 2, 6, 7, 8, 19, 20, 21, and 22 after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

Conspiracy to Distribute Less Than 500 Grams of Cocaine, Some Amount of Oxycodone,

and Some Amount of a Mixture or Substance Containing a Detectable Amount of Marijuana

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

Conspiracy to Possess Firearms in Furtherance of a Drug Trafficking Crime

18 U.S.C. § 924(o)

Drive-by Shooting

18 U.S.C. § 36

Discharging a Firearm in Furtherance of a Crime of Violence

18 U.S.C. § 924(c)(1)(A)(iii)

Maintaining a Drug Involved Premises

21 U.S.C. §§ 856(a)(1) and (b)

Distribution of Marijuana

21 U.S.C. §§ 841(a)(1) and (b)(1)(D)

Distribution of Marijuana Near a School

21 U.S.C. §§ 841(a)(1) and 860

Distribution of Marijuana

21 U.S.C. §§ 841(a)(1) and (b)(1)(D)

Distribution of Marijuana Near a School

21 U.S.C. §§ 841(a)(1) and 860

Offense Ended

Count

10/01/2019

1s

10/02/2019

2s

09/09/2019

6s

09/09/2019

7s

10/01/2019

8s

06/21/2019

19s

06/21/2019

20s

07/18/2019

21s

07/18/2019

22s

The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

☐ The defendant has been found not guilty on count(s)

☐ Count(s) ☐ is ☐ are dismissed on the motion of the United States

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

September 18, 2023

Date of Imposition of Judgment

/s/ Greg Kays

Signature of Judge

GREG KAYS

UNITED STATES DISTRICT JUDGE

Name and Title of Judge

September 19, 2023

Date

Case 4:19-cr-00315-DGK Document 1001 Filed 09/19/23 Page 1 of 6

AO 245B (Rev. TXN 9/19) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 2 of 6

ROY O FRANKLIN, JR

4:19-CR-00315-DGK(2)

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:

151 months as to each of Counts 1, 2, 6, and 8; 120 months as to Counts 20 and 22; and 60 months as to Counts 19 and 21; all

concurrent, plus 209 months on Count 7, to run consecutive to all other counts, for a total custody term of 360 months.

☐ The court makes the following recommendations to the Bureau of Prisons:

☒ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district:

☐ at

☐

a.m.

☐

p.m.

on

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 p.m. on

☐ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 4:19-cr-00315-DGK Document 1001 Filed 09/19/23 Page 2 of 6

AO 245B (Rev. TXN 9/19) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 3 of 6

ROY O FRANKLIN, JR

4:19-CR-00315-DGK(2)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of: 3 years on Count 8 and 5 years on Counts

1, 2, 6, 7, 19, 20, 21, and 22, the terms to run concurrently.

MANDATORY CONDITIONS

1.

You must not commit another federal, state or local crime.

2.

You must not unlawfully possess a controlled substance.

3.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☐ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future

4.

5.

☐

substance abuse. (check if applicable)

You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence

of restitution. (check if applicable)

You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

☒

6. ☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et

seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which

you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

7.

☐ You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any additional

conditions on the attached page.

Case 4:19-cr-00315-DGK Document 1001 Filed 09/19/23 Page 3 of 6

AO 245B (Rev. TXN 9/19) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 4 of 6

ROY O FRANKLIN, JR

4:19-CR-00315-DGK(2)

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from

the court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer

to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that

was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or

tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a

written copy of this judgment containing these conditions. I understand additional information regarding these

conditions is available at the www.uscourts.gov.

Defendant’s Signature

Date

Case 4:19-cr-00315-DGK Document 1001 Filed 09/19/23 Page 4 of 6

AO 245B (Rev. TXN 9/19) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 5 of 6

ROY O FRANKLIN, JR

4:19-CR-00315-DGK(2)

SPECIAL CONDITIONS OF SUPERVISION

a) You shall submit your person and any property, house, residence, office, vehicle, papers, computer, other electronic communication

or data storage devices or media and effects to a search, conducted by a U.S. Probation Officer at a reasonable time and in a

reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to

submit to a search may be grounds for revocation; you shall warn any other residents that the premises may be subject to searches

pursuant to this condition.

b) You shall successfully participate in any outpatient or inpatient substance abuse counseling program, which may include urinalysis,

sweat patch, or alcohol breath testing, as approved by the Probation Office and pay any associated costs as directed by the Probation

Office.

c) You shall provide the Probation Office with access to any requested financial information as it relates to income and debt.

d) You shall take measurable actions to resolve any felony warrants and/or pending charges within 60 days of release to supervision,

and every 6 months thereafter, until the matters have been resolved, and you shall provide documentation of the actions taken to the

Probation Office.

e) You shall comply with the Western District of Missouri Offender Employment Guideline which may include participation in

training, counseling, and/or daily job searching, as directed by the Probation Officer. If not in compliance with the condition of

supervision requiring full-time employment at a lawful occupation, you may be required to perform up to 20 hours of community

service per week until employed, as approved by the Probation Officer.

f) If you do not earn a GED while incarcerated, you shall provide documentation of participation in GED classes while on supervision,

and shall provide documentation that you have taken the GED exam.

ACKNOWLEDGMENT OF CONDITIONS

I have read or have read the conditions of supervision set forth in this judgment and I fully understand them. I have been provided a

copy of them.

I understand that upon finding of a violation of probation or supervised release, the Court may (1) revoke supervision, (2) extend the

term of supervision, and/or (3) modify the conditions of supervision.

_______________________________________

Defendant

____________________

Date

________________________________________

United States Probation Officer

____________________

Date

Case 4:19-cr-00315-DGK Document 1001 Filed 09/19/23 Page 5 of 6

AO 245B (Rev. TXN 9/19) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 6 of 6

ROY O FRANKLIN, JR

4:19-CR-00315-DGK(2)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments.

Restitution

Fine

AVAA Assessment*

Assessment

TOTALS

$900.00

$.00

JVTA Assessment**

$.00

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

Special instructions regarding the payment of criminal monetary penalties:

It is ordered that the Defendant shall pay to the United States a special assessment of $900.00 for Counts 1s, 2s, 6s, 7s,

8s, 19s, 20s, 21s and 22s , which shall be due immediately. Said special assessment shall be paid to the Clerk, U.S.

District Court.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

FORFEITURE

The Preliminary Order of Forfeiture is finalized and imposed in the amount of $103,650.

Case 4:19-cr-00315-DGK Document 1001 Filed 09/19/23 Page 6 of 6

Appendix C

18 U.S.C. Section 3553(a)

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Appendix D

18 U.S.C. Section 3661

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