UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4134

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GEORGE EDWARD MITCHUM,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, District Judge. 

(4:08-cr-01174-TLW-1)

Submitted: February 25, 2011 Decided: March 21, 2011

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia, 

South Carolina, for Appellant. William N. Nettles, United 

States Attorney, A. W. Bethea, Jr., Assistant United States 

Attorney, Florence, South Carolina, Greg D. Andres, Acting 

Deputy Assistant Attorney General, Lanny A. Breuer, Assistant 

Attorney General, Washington, D.C., Thomas E. Booth, DEPARTMENT 

OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

George Edward Mitchum was convicted of: conspiracy to 

traffic in cocaine, cocaine base, and marijuana; two counts of 

possession of cocaine with intent to distribute; using and 

carrying a firearm during a drug trafficking crime; and 

possession of a firearm by a convicted felon. He was sentenced 

to 420 months in prison. Mitchum now appeals. In his formal 

brief, he contends that certain Fed. R. Evid. 404(b) evidence 

was improperly admitted at trial. He also raises three 

sentencing errors under Anders v. California, 386 U.S. 738 

(1967), but states that none has merit. Mitchum has filed a pro 

se brief raising three additional claims.

I

Mitchum contends that the district court admitted 

certain evidence in violation of Fed. R. Evid. 404(b). We 

review decisions to admit evidence for abuse of discretion. 

United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005). An 

abuse of discretion “occurs only when it can be said that the 

trial court acted arbitrarily or irrationally in admitting 

evidence.” United States v. Williams, 445 F.3d 724, 732 (4th 

Cir. 2006) (internal quotation marks omitted).

“Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show 
3

action in conformity therewith.” Fed. R. Evid. 404(b). Such 

evidence “may, however, be admissible for other purposes, such 

as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Id. 

Further, “[t]o be admissible under Rule 404(b), evidence must be 

(1) relevant to an issue other than character; (2) necessary; 

and (3) reliable.” United States v. Siegel, 536 F.3d 306, 317 

(4th Cir. 2008) (internal quotation marks omitted). “Rule 

404(b) is . . . an inclusive rule, admitting all evidence of 

other crimes or acts except that which tends to prove only 

criminal disposition.” United States v. Young, 248 F.3d 260, 

271-72 (4th Cir. 2001) (internal quotation marks omitted). “As 

a rule of inclusion, the rule’s list is not exhausting.” United 

States v. Queen ̧ 132 F.3d 991, 994-95 (4th Cir. 1997). 

“Evidence sought to be admitted under Rule 404(b) must 

also satisfy [Fed. R. Evid.] 403 . . . ,” Siegel, 536 F.3d at 

319, such that its probative value is not “substantially 

outweighed” by its prejudicial quality. Queen, 132 F.3d at 995. 

Under Rule 403, “damage to a defendant’s case is not a basis for 

excluding probative evidence” because “[e]vidence that is highly 

probative invariably will be prejudicial to the defense.” 

United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998). 

“Rule 403 requires exclusion of evidence only in those instances 

where the trial judge believes that there is a genuine risk that 
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the emotions of the jury will be excited to irrational behavior, 

and that this risk is disproportionate to the probative value of 

the offered evidence.” United States v. Mohr, 318 F.3d 613, 618 

(4th Cir. 2003) (internal quotation marks omitted).

Mitchum contends that the district court admitted the 

following evidence in violation of Rule 404(b): (1) evidence 

that he shot into the home of a deputy sheriff who previously 

served him with an arrest warrant; and (2) evidence that he 

abused his girlfriend. We hold that, under the above 

authorities, the evidence was admissible under Rule 404(b) to 

show Mitchum’s consciousness of guilt: i.e., to show that he 

believed his case was weak and that he needed to threaten or 

intimidate potential witnesses in order to prevail. See United 

States v. Young, 248 F.3d 260, 272 (4th Cir. 2001). Further, 

the evidence was not unduly prejudicial under Rule 403: its 

presentation occupied only a brief part of the four-day trial; 

other evidence against Mitchum overwhelmingly established his 

guilt; and the court instructed the jury as to the limited 

purpose of the evidence. 

II

Mitchum raises three sentencing issues pursuant to 

Anders v. California, but states that none has merit. He first 

contends that his offense level was erroneously enhanced by 
5

three levels pursuant to U.S. Sentencing Guidelines Manual

§ 3C1.1 (2008) for obstruction of justice. The enhancement is 

authorized for, among other things, “threatening, intimidating, 

or otherwise unlawfully influencing a . . . witness . . . , 

directly or indirectly, or attempting to do so.” USSG § 3C1.1, 

comment. (n.4(a)). In light of testimony that Mitchum 

threatened Joe Lewis Burgess and Jermaine Greene when he learned 

they would testify against him, the enhancement was proper. 

Further, because the evidence established that Mitchum 

fired into the deputy sheriff’s residence, the enhancement under 

USSG § 3A1.2(a) (“Official Victim”) was appropriate. Finally, 

while the district court acknowledged that it had some 

discretion to vary from the powder-to-crack cocaine ratio in the 

sentencing guidelines, see Spears v. United States, 129 S. Ct. 

840, 843-44 (2009), the court declined to adopt the 1:1 ratio 

proposed by Mitchum. The court’s decision to abide by the ratio 

incorporated into the Guidelines was not an abuse of discretion. 

III

In his pro se brief, Mitchum contends that there was 

insufficient evidence to convict him on the conspiracy charge. 

A jury’s verdict “must be sustained if there is substantial 

evidence, taking the view most favorable to the Government, to 

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). 
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“Substantial evidence is that evidence which a ‘reasonable 

finder of fact could accept as adequate and sufficient to 

support a conclusion of a defendant’s guilt beyond a reasonable 

doubt.’” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir. 

2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th 

Cir. 1996) (en banc)). We review both direct and circumstantial 

evidence and permit the “[G]overnment the benefit of all 

reasonable inferences from the facts proven to those sought to 

be established.” United States v. Tresvant, 677 F.2d 1018, 1021 

(4th Cir. 1982). We do not review the credibility of witnesses, 

and we assume the factfinder resolved all contradictions in the 

testimony in favor of the Government. United States v. Sun, 278 

F.3d 302, 313 (4th Cir. 2002). 

To convict Mitchum of conspiracy to distribute cocaine 

and marijuana under 21 U.S.C. § 846 (2006), the Government had 

to establish beyond a reasonable doubt that: (1) two or more 

persons agreed to distribute the drugs; (2) Mitchum knew of the 

conspiracy; and (3) he “knowingly and voluntarily became a part 

of” the conspiracy. See United States v. Yearwood, 518 F.3d 

220, 227 (4th Cir. 2008). We have never held that a criminal 

enterprise must have a rigid structure or be the only criminal 

enterprise its members are a part of before conspiratorial 

criminal liability can attach. Cf. Burgos, 94 F.3d at 858 

(“while many conspiracies are executed with precision, the fact 
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that a conspiracy is loosely-knit, haphazard, or ill-conceived 

does not render it any less a conspiracy—or any less unlawful”). 

Testimony at trial overwhelmingly established 

Mitchum’s violation of 21 U.S.C. § 846 (2006). Mitchum obtained 

significant quantities of drugs from a variety of sources, 

including Jody Pearson, Frederick Burgess, Matthew Brown, 

Charlie Redden, Jr., and Darrel Torel Mouzon. He then sold 

drugs he had purchased to many customers, including Clarissa 

Rogers, Roderick Ford, and Tony Brown. Shantel Cunningham, 

Mitchum’s girlfriend at the time, testified that Mitchum 

typically sold crack to twenty persons a day. The fact that he 

had multiple suppliers who were not connected with one another 

in a tightly knit network is irrelevant because “[e]vidence of a 

buy-sell transaction, when coupled with a substantial quantity 

of drugs, would support a reasonable inference that the parties 

were coconspirators.” United States v. Mills, 995 F.2d 480, 485 

n.1 (4th Cir. 1993). Here, there was ample evidence of numerous 

buy-sell transactions involving significant amounts of drugs. 

Mitchum accordingly was properly found guilty of conspiracy. 

IV

In his pro se brief, Mitchum raises two Fourth 

Amendment issues. He complains that there was no probable cause 

to support a search warrant for his home and that a traffic stop 
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was unconstitutional. No motion to suppress the evidence seized 

pursuant to the search warrant or during the traffic stop was 

filed prior to trial. Accordingly, under Fed. R. Crim. P. 

12(e), Mitchum has waived his right to raise this issue on 

appeal. See United States v. Whorley, 550 F.3d 326, 337 (4th 

Cir. 2008); United States v. Ricco, 52 F.3d 58, 62 (4th Cir.

1995).

V

We find no merit in the issues raised in the formal 

and pro se briefs. Further, in accordance with Anders, we have 

reviewed the entire record for meritorious issues and have found 

none. We therefore affirm. This court requires that counsel 

inform his client, in writing, of his right to petition the 

Supreme Court of the United States for further review. If the 

client requests that a petition be filed, but counsel believes 

that such a petition would be frivolous, then counsel may move 

in this court for leave to withdraw from representation. 

Counsel’s motion must state that a copy was served on the 

client. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED