UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4162

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY JABBARI RHODES, a/k/a Viking, a/k/a JJ,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at 

Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00607-JFA-13)

Argued: March 22, 2018 Decided: June 7, 2018

Before WILKINSON and TRAXLER, Circuit Judges, and Leonie M. BRINKEMA, 

United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South 

Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Blanco, Acting 

Assistant Attorney General, Trevor N. McFadden, Deputy Assistant Attorney General, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Beth Drake, 

United States Attorney, J.D. Rowell, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jerry Jabbari Rhodes was convicted by a jury of conspiracy to distribute powder 

and crack cocaine. After concluding that Rhodes qualified as a career offender, the 

district court imposed a sentence of 244 months. Rhodes appeals, raising challenges to 

his conviction and sentence. We find no reversible error in the trial proceedings, but we 

conclude that the district court erred in sentencing Rhodes as a career offender. We 

therefore affirm his conviction but vacate his sentence and remand for resentencing.

I.

We begin with Rhodes’ challenges to his conviction.

A.

While monitoring the telephone calls of Robert Jamison, the FBI learned that 

Jamison was selling cocaine to Rhodes for distribution in the area around Columbia, 

South Carolina. The FBI arrested Jamison in November 2013 and arrested Rhodes in 

2015. In 2016, Rhodes and Jamison were both in custody at the Lexington County 

Detention Center. Rhodes approached Jamison and tried to convince Jamison not to 

testify against him. In one of his conversations with Jamison, Rhodes said that his 

attorney had encouraged him to persuade Jamison not to testify.*

 Portions of the 

conversations between Jamison and Rhodes were overheard by Keith Randolph, an 

inmate who had had some involvement in Jamison’s drug-distribution activities.

 * Rhodes’ appellate attorney is not the attorney against whom Rhodes made 

this allegation.
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Because the government intended to call Jamison and Randolph as trial witnesses, 

the government informed the district court before trial that counsel for Rhodes had a 

potential conflict of interest, given Rhodes’ statement that counsel had encouraged his 

conversations with Jamison. Rhodes argued that his attorney should not be disqualified 

and that his statements to Jamison should be excluded as unfairly prejudicial. After 

conducting a hearing and an ex parte examination of Rhodes and his attorney, the district 

court concluded that the statements were admissible and that the resulting conflict 

required the court to discharge Rhodes’ attorney and appoint new counsel. During 

Jamison’s trial testimony, the court informed the jury that the attorney then representing 

Rhodes had not been his attorney at the time of Rhodes’ conversations with Jamison.

Rhodes argues on appeal that the district court erred by admitting the jailhouse 

statements. Rhodes acknowledges that the statements were relevant, but he contends that 

the references to Rhodes’ prior attorney made the statements unfairly prejudicial and 

“created severe danger the jury would convict Rhodes not for dealing drugs, but for his 

statements in the jail.” Brief of Appellant at 22. We disagree.

“We review a trial court’s rulings on the admissibility of evidence for abuse of 

discretion, and we will only overturn an evidentiary ruling that is arbitrary and 

irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal quotation 

marks omitted). “To that end, we look at the evidence in a light most favorable to its 

proponent, maximizing its probative value and minimizing its prejudicial effect.” Id.

(internal quotation marks omitted).
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Rule 403 provides that a “court may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 

issues, [or] misleading the jury.” Fed. R. Evid. 403. For purposes of Rule 403, evidence 

is unfairly prejudicial “when there is a genuine risk that the emotions of a jury will be 

excited to irrational behavior, and that this risk is disproportionate to the probative value 

of the offered evidence.” United States v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008) 

(internal quotation marks omitted). In this case, we cannot say the district court’s 

decision to admit the evidence was irrational. Evidence of a defendant’s attempt to 

tamper with the testimony of a witness is clearly relevant and probative of the 

defendant’s consciousness of guilt, and courts have generally concluded that such 

evidence is not unfairly prejudicial. See, e.g., United States v. Poulsen, 655 F.3d 492, 

509-10 (6th Cir. 2011); cf. United States v. Higgs, 353 F.3d 281, 323 (4th Cir. 2003) 

(concluding that evidence that defendant instructed witnesses to lie was not unfairly 

prejudicial in capital sentencing proceeding). While the evidence here also suggested the 

involvement of an attorney in the attempted tampering, we do not believe that additional 

fact pushes the evidence over the line from merely prejudicial (which is the case for all 

evidence that is probative of guilt) to unfairly prejudicial, particularly since the district 

court informed the jury that the attorney representing Rhodes at trial had no involvement 

in the incident.

B.

Rhodes also contends that the evidence was insufficient to support the jury’s guilty 

verdict. The jury’s verdict in a criminal case must be upheld on appeal “if, viewing the 
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evidence in the light most favorable to the government, [the verdict] is supported by 

substantial evidence, which is evidence that a reasonable finder of fact could accept as 

adequate and sufficient to support a conclusion of a defendant’s guilt beyond a 

reasonable doubt.” United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018) (internal 

quotation marks omitted). “A defendant who brings a sufficiency challenge bears a 

heavy burden, as appellate reversal on grounds of insufficient evidence is confined to 

cases where the prosecution’s failure is clear.” Id. (internal quotation marks omitted).

To convict on a drug-distribution conspiracy charge, “the government must 

demonstrate beyond a reasonable doubt (1) an agreement between two or more persons to 

engage in conduct that violates a federal drug law, (2) the defendant’s knowledge of the 

conspiracy, and (3) the defendant’s knowing and voluntary participation in the 

conspiracy.” United States v. Gomez–Jimenez, 750 F.3d 370, 378 (4th Cir. 2014). The 

government’s evidence in this case was sufficient to carry its burden.

The evidence presented at trial established that Jamison supplied Rhodes with 

large quantities of crack and powder cocaine over an extended period of time. According 

to Jamison, Rhodes at first bought crack cocaine from him, but Jamison later began 

“fronting” powder cocaine to Rhodes. Jamison testified that “in order to sell my product 

faster, I asked [Rhodes] would it be all right if I would front him the cocaine and he could

cook his own crack and sell the excess of the cocaine for me and he agreed.” J.A. 212. 

The government also played several recorded telephone conversations for the jury, 

including two conversations where Rhodes agreed to act as a middleman for Jamison in a 

deal between Jamison and one of Rhodes’ marijuana suppliers. While Rhodes contends 
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that he and Jamison had only a buyer-seller relationship that would not support a 

conspiracy conviction, we believe the evidence described above is more than sufficient to 

permit the jury to find Rhodes guilty of conspiracy. See United States v. GarciaLagunas, 835 F.3d 479, 490 (4th Cir. 2016) (“While a mere buyer-seller relationship is 

insufficient to support a conspiracy conviction, evidence that such a buyer-seller 

relationship is continuing and includes repeated transactions can support the finding that 

there was a conspiracy, especially when coupled with substantial quantities of drugs.” 

(alteration and internal quotation marks omitted)).

II.

We turn now to Rhodes’ challenge to his sentence. Rhodes contends that the 

district court erred by sentencing him as a career offender under the Sentencing 

Guidelines because his prior South Carolina conviction for distribution of a controlled 

substance in proximity of a school does not qualify as a “controlled substance offense” as 

defined by the Guidelines. Although Rhodes generally objected to the career-offender 

designation, the arguments he made below do not encompass the argument asserted on 

appeal and did not give the district court the opportunity to consider the particular issue 

we address. We therefore review the issue for plain error only.

A defendant is a career offender subject to an increased sentence under the 

Sentencing Guidelines if he has “at least two prior felony convictions of either a crime of 

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). The Guidelines 

define a “controlled substance offense” as:
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[A]n offense under federal or state law, punishable by imprisonment for a 

term exceeding one year, that prohibits the manufacture, import, export, 

distribution, or dispensing of a controlled substance (or a counterfeit 

substance) or the possession of a controlled substance (or a counterfeit 

substance) with intent to manufacture, import, export, distribute, or 

dispense.

U.S.S.G. § 4B1.2(b). Thus, under the Guidelines, possession with intent to distribute 

counts as a controlled substance offense, but simple possession does not. See United 

States v. Neal, 27 F.3d 90, 92 (4th Cir. 1994) (per curiam) (“[S]imple possession of drugs 

is excluded from the category ‘controlled substance offense.’”).

To determine whether Rhodes’ conviction qualifies as a controlled substance 

offense, we apply the categorical approach, which focuses on the elements of the prior 

offense, not the conduct underlying the conviction. “For a prior conviction to qualify as a 

Guideline predicate offense, the elements of the prior offense must correspond in 

substance to the elements of the enumerated offense.” United States v. Dozier, 848 F.3d 

180, 183 (4th Cir. 2017) (alterations and internal quotation marks omitted). In cases 

involving “divisible” statutes -- statutes that “list elements in the alternative, and thereby 

define multiple crimes,” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) -- we 

apply “the modified categorical approach,” which permits us to consult a limited universe 

of documents to determine which of the alternate forms of the offense was the basis of 

the defendant’s conviction, id.

At the time of Rhodes’ offense, the South Carolina statute at issue here provided 

that:

It is a separate criminal offense for a person to distribute, sell, purchase, 

manufacture, or to unlawfully possess with intent to distribute, a controlled 
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substance while in, on, or within a one-half mile radius of the grounds of a 

public or private elementary, middle, or secondary school; a public 

playground or park; a public vocational or trade school or technical 

educational center; or a public or private college or university.

S.C. Code Ann. § 44-53-445(A) (2003). Because the statute applies to the mere purchase

of drugs, it criminalizes simple possession and thus is not categorically a controlled 

substance offense, a point conceded by the government. See Brief of Respondent at 24 

(“Section 44-53-445 does not categorically meet the definition of a ‘controlled substance 

offense’. . . because it includes a purchase offense . . . .”).

The government, however, contends that the statute is divisible and that the record 

establishes that Rhodes was convicted of the distribution form of the proximity offense, 

which qualifies as a controlled substance offense. We will assume for purposes of this 

appeal that the proximity statute is divisible. But even with that assumption, we cannot

agree with the government that Rhodes was properly sentenced as a career offender.

When applying the modified categorical approach, we may look only to a limited 

class of documents to determine if Rhodes was convicted of a version of the offense that 

qualifies as a controlled-substance offense. See Shepard v. United States, 544 U.S. 13, 26 

(2005). The Shepard-approved documents are all drawn from the judicial record of 

conviction and include the charging document and jury instructions, or, in cases 

involving a guilty plea, the terms of any plea agreement or the transcript of a colloquy 

establishing the factual basis for the plea. See Mathis, 136 S. Ct. at 2249; Shepard, 544 

U.S. at 26. At sentencing, the government did not present the indictment or other 

documents relating to the proximity conviction, but relied on the information set out in 
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the presentence report. See United States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005) 

(district court may rely on PSR’s description of prior convictions if PSR was “deriv[ed]

from Shepard-approved sources” and the defendant does not object).

The PSR quotes the indictment as charging that Rhodes did knowingly and 

unlawfully 

sell, distribute, cultivate, manufacture, deliver, or bring into this state, or 

did provide financial assistance or otherwise aid, abet, attempt, or conspire 

to sell, manufacture, cultivate, deliver, or bring into this state, possess, with 

intent to distribute or was knowingly and intentionally in actual or 

constructive possession of or did knowingly and intentionally attempt to 

become in actual or constructive possession of crack cocaine, a controlled 

substance, while in, on, or within a one half-mile radius

of a school. J.A. 462 (emphasis added). Because the indictment alleges multiple acts, 

including mere possession, it does not show which proximity offense Rhodes was 

convicted of committing. Although the PSR refers to an affidavit that indicates Rhodes 

was convicted of distributing drugs in proximity of a school, there is no indication that 

the affidavit was expressly incorporated into the indictment. The affidavit therefore is 

not among the universe of Shepard-approved documents that may be consulted when 

applying the modified categorical approach. See Shepard, 544 U.S. at 26; United States 

v. Donnell, 661 F.3d 890, 894 (4th Cir. 2011) (“To appropriately consider information in 

an external document, such as the statement of probable cause at issue here, the document 

containing the information must be expressly incorporated into the charging document.”).

Because neither the indictment nor any Shepard-approved document establishes

that Rhodes was actually convicted of an offense that qualifies as an controlled substance 

offense under the Guidelines, the government failed to carry its burden of showing that 
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the prior conviction qualified as a controlled substance offense. See United States v. 

Andrews, 808 F.3d 964, 968 (4th Cir. 2015) (“The government bears the burden of 

proving the facts supporting [a Guidelines sentencing] enhancement by a preponderance 

of the evidence.”); United States v. McDowell, 745 F.3d 115, 120 (4th Cir. 2014) (“The 

Government bears the burden of proving by a preponderance of the evidence that a 

defendant committed a predicate violent felony—the same standard that applies to any 

other sentencing factor.”). The district court therefore erred in sentencing Rhodes as a 

career offender.

We believe that error requires correction even under plain-error review. See

United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (explaining that obtaining

relief under plain-error review requires defendant to establish that “the district court 

erred, that the error was plain, and that it affected his substantial rights” (internal 

quotation marks and alterations omitted)). Our cases make clear the circumstances under 

which non-judicial documents such as affidavits or statements of probable cause can be 

considered under the modified categorical approach, and the error caused Rhodes to be 

sentenced under a higher Guidelines sentencing range. Under these circumstances, we 

believe it proper to exercise our discretion and correct the plain error. See MolinaMartinez v. United States, 136 S. Ct. 1338, 1346 (2016) (“In most cases a defendant who 

has shown that the district court mistakenly deemed applicable an incorrect, higher 

Guidelines range has demonstrated a reasonable probability of a different outcome. And, 

again in most cases, that will suffice for relief if the other requirements of [plain-error 

review] are met.”).
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III.

Accordingly, for the foregoing reasons, we hereby affirm Rhodes’ conviction, but 

we vacate his sentence and remand for resentencing without the career-offender 

enhancement. On remand, Rhodes is free to re-assert any sentencing objections that were 

rendered moot by the career-offender ruling and therefore not previously ruled on by the 

district court.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED