US v. Kentrell McIntyre
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00188-FDW-DSC-18 Copies to all parties and the district court/agency. [999751711].. [14-4186, 14-4337, 14-4339, 14-4343]
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4186
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENTRELL TYRONE MCINTYRE, a/k/a Mustafa,
Defendant - Appellant.
No. 14-4337
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAIMEL KENZIE DAVIDSON, a/k/a I-Shine,
Defendant - Appellant.
No. 14-4339
UNITED STATES OF AMERICA
Plaintiff – Appellee,
v.
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
Pg: 2 of 8
PERRY GORONTENT WILLIAMS, a/k/a P-Flame, a/k/a Flame,
Defendant - Appellant.
No. 14-4343
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NATHANIEL GRAHAM, a/k/a Nasty,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:12-cr-00188-FDW-DSC-18; 3:12-cr-00188FDW-DSC-9; 3:12-cr-00188-FDW-DSC-28; 3:12-cr-00188-FDW-DSC-13)
Submitted:
January 29, 2016
Before AGEE and
Circuit Judge.
WYNN,
Decided:
Circuit
Judges,
and
February 9, 2016
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
W.H. Paramore, III, W.H. PARAMORE, III, P.C., Jacksonville,
North
Carolina;
J.
Clark
Fischer,
RANDOLPH
&
FISCHER,
Winston-Salem, North Carolina; Eric J. Foster, Asheville, North
Carolina; M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellants. Jill
Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
Pg: 3 of 8
PER CURIAM:
A federal jury convicted Kentrell Tyrone McIntyre, Jamiel
Kenzie Davidson, Perry Gorontent Williams, and Nathaniel Graham,
of
conspiracy
to
participate
in
racketeering
activity,
in
violation of 18 U.S.C. § 1962(d) (2012); and convicted McIntyre,
Williams, and Graham of conspiracy to commit murder in aid of
racketeering activity, in violation of 18 U.S.C. § 1959(a)(5)
(2012).
months
The district court sentenced McIntyre to a total of 192
of
imprisonment,
sentenced
Davidson
to
150
months
of
imprisonment, sentenced Williams to 360 months of imprisonment,
and sentenced Graham to 240 months of imprisonment, and they now
appeal.
For the reasons that follow, we affirm the district
court’s judgments.
Each Appellant challenges the sufficiency of the evidence
to
support
his
convictions.
We
review
a
district
court’s
decision to deny a Fed. R. Crim. P. 29 motion for a judgment of
acquittal de novo.
(4th Cir. 2006).
United States v. Smith, 451 F.3d 209, 216
A defendant challenging the sufficiency of the
evidence faces a heavy burden.
United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997).
In determining whether the
evidence is sufficient to support a conviction, we determine
“whether
there
is
substantial
evidence
in
the
record,
when
viewed in the light most favorable to the government, to support
the conviction.”
United States v. Palacios, 677 F.3d 234, 248
3
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
Pg: 4 of 8
(4th Cir. 2012) (internal quotation marks omitted).
Substantial
evidence is “evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.”
quotation
marks
omitted).
Furthermore,
Id. (internal
“[d]eterminations
of
credibility are within the sole province of the jury and are not
susceptible to judicial review.”
Id. (internal quotation marks
omitted).
“To satisfy § 1962(d), the government must prove that an
enterprise
affecting
interstate
commerce
existed;
that
each
defendant knowingly and intentionally agreed with another person
to conduct or participate in the affairs of the enterprise; and
that each defendant knowingly and willfully agreed that he or
some other member of the conspiracy would commit at least two
racketeering acts.”
(4th
Cir.),
quotation
include
cert.
marks
any
United States v. Cornell, 780 F.3d 616, 621
denied,
and
act
136
S.
alterations
or
threat
Ct.
127
omitted).
involving
(2015)
(internal
Racketeering
murder,
acts
kidnapping,
gambling, arson, robbery, bribery, extortion, dealing in obscene
matter,
or
felony
§ 1961(1) (2012).
controlled
substance
offenses.
18
U.S.C.
Completion of any overt act is not an element
of a RICO conspiracy offense; rather the Government need only
demonstrate
that
the
conspirators
4
agreed
to
pursue
the
same
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
Pg: 5 of 8
criminal objective, whether that objective is started or carried
out.
Cornell, 780 F.3d at 624.
To demonstrate a violation of § 1959(a)(5), the Government
had
to
commit
prove
a
that
murder
the
for
Appellants
the
maintaining
or
engaged
racketeering
in
agreed
purpose
increasing
their
of
with
gaining
positions
activity.
See
in
each
entrance
an
United
Basciano, 599 F.3d 184, 198-99 (2d Cir. 2010).
other
to
to
or
enterprise
States
v.
In addition, to
demonstrate withdrawal from a conspiracy, a “defendant must show
affirmative acts inconsistent with the object of the conspiracy
and communicated in a manner reasonably calculated to reach his
coconspirators.”
Cir.
2010).
The
United States v. Green, 599 F.3d 360, 370 (4th
defendant
bears
withdrawal from the conspiracy.
the
burden
Id. at 370.
reviewed
the
record
and
the
relevant
conclude
that
there
was
substantial
of
proving
his
We have thoroughly
legal
evidence
authorities
and
to
the
support
jury’s verdicts of guilt as to both counts.
Williams also challenges the district court’s order denying
his motion to appoint substitute counsel.
of
a
motion
for
substitute
counsel
for
We review the denial
abuse
of
discretion.
United States v. Horton, 693 F.3d 463, 466 (4th Cir. 2012).
In
so doing, we consider (1) the timeliness of the motion, (2) the
adequacy of the court’s inquiry, and (3) whether the conflict
between attorney and client was so great that it resulted in
5
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
Pg: 6 of 8
total lack of communication preventing an adequate defense.
Id.
at
abuse
its
counsel
for
466-67.
discretion
We
in
conclude
refusing
that
to
the
court
appoint
did
not
substitute
Williams one week prior to trial.
Graham argues on appeal that the court plainly erred in
failing to instruct the jury on withdrawal from a conspiracy.
A
district court errs in failing to provide an instruction to the
jury where the instruction is legally correct, not substantially
covered by the charge to the jury, and dealt with a point in the
trial so important that the failure to provide the instruction
seriously impaired the defendant’s ability to conduct a defense.
United States v. Smith, 701 F.3d 1002, 1011 (4th Cir. 2012).
Here,
as
Graham
failed
to
request
an
instruction
on
withdrawal and failed to object to the court’s jury charge, we
review this issue for plain error.
United States v. Nicolaou,
180 F.3d 565, 570 (4th Cir. 1999).
“Under plain error review,
[Graham] must show that (1) the district court committed error,
(2)
the
error
was
substantial rights.”
(4th Cir. 2007).
plain,
and
(3)
the
error
affected
[his]
United States v. Wilson, 484 F.3d 267, 279
Our review of the record leads us to conclude
that the court committed no error in charging the jury.
Finally, McIntyre and Davidson challenge the reasonableness
of
their
sentences.
We
review
a
sentence
for
abuse
of
discretion, determining whether the sentence is procedurally and
6
Appeal: 14-4186
Doc: 116
Filed: 02/09/2016
substantively reasonable.
266 (4th Cir. 2009).
Pg: 7 of 8
United States v. Heath, 559 F.3d 263,
In so doing, we examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a)
[(2012)]
factors,
selecting
a
sentence
based
on
clearly erroneous facts, or failing to adequately explain the
chosen
sentence”.
(2007).
Gall
v.
United
States,
552
U.S.
38,
51
We then review the substantive reasonableness of the
sentence, presuming that a sentence within a properly calculated
advisory
Guidelines
range
is
reasonable.
United
States
v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United
States, 551 U.S. 338, 346-56 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence).
McIntyre
challenges
the
procedural
reasonableness
of
his
sentence, contending that the district court erred in applying a
base offense level based on conspiracy to commit murder.
reject
McIntyre’s
argument.
The
district
court
We
properly
calculated the advisory Guidelines range and sentenced McIntyre
within that range.
Davidson
substantively
variant
or
asserts
on
unreasonable.
departure
appeal
If
sentence,
a
it
that
his
district
must
sentence
court
provide
imposes
is
a
sufficient
justification to support the degree of variance, although need
7
Appeal: 14-4186
not
Doc: 116
find
Filed: 02/09/2016
that
extraordinary
Pg: 8 of 8
circumstances
exist.
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
based
on
our
review
provided
sufficient
sentence.
Based
of
the
record
that
on
justification
the
court’s
to
the
sentence is substantively reasonable.
We conclude
district
support
stated
United
the
court
chosen
justification,
the
See id. at 160 (appellate
court can only reverse a sentence if it is unreasonable, even if
the court would have imposed a different sentence).
Accordingly, we affirm the judgments of the district court.
We
dispense
conclusions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid in the decisional process.
AFFIRMED
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?