UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4813

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANILO GARCIA, a/k/a Donny, a/k/a Darreo,

Defendant - Appellant.

No. 15-4818

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROY LEE CLAY, a/k/a Junior,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of Maryland, at Baltimore. Catherine C. Blake, Chief District 

Judge. (1:11-cr-00569-CCB-1; 1:11-cr-00569-CCB-3)

Submitted: November 29, 2016 Decided: December 15, 2016

Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and DAVIS, 

Senior Circuit Judge.
2

Affirmed by unpublished per curiam opinion.

Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia, 

Maryland; Christopher C. Nieto, BROWN & NIETO, LLC, Baltimore, 

Maryland, for Appellants. Rod J. Rosenstein, United States 

Attorney, Ayn B. Ducao, Christopher J. Romano, Assistant United 

States Attorneys, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

A jury convicted Danilo Garcia and Roy Lee Clay 

(collectively, “Appellants”) for their involvement in a heroin 

trafficking conspiracy. On appeal, Appellants claim that two 

evidentiary errors require a new trial. Clay also challenges 

the sufficiency of the evidence and his 360-month sentence. 

Finding no error, we affirm.

I.

We review a district court’s evidentiary rulings for abuse 

of discretion. United States v. Faulls, 821 F.3d 502, 508 (4th 

Cir. 2016). Reversal is warranted only if, in consideration of 

the law and facts of the case, the district court’s 

determination “was arbitrary or irrational.” Id. (internal 

quotation marks omitted).

Appellants first contend that the district court erred in 

allowing Special Agent Todd Edwards to testify as an expert 

witness on coded language used during intercepted phone calls,

arguing that the Government’s expert disclosure was deficient 

and thus Appellants were prejudiced in their ability to conduct 

an adequate cross-examination. Rule 16(a)(1)(G), Fed. R. Crim. 

P., requires the Government, when requested, to “give to the 

defendant a written summary of any [expert] testimony that the 

government intends to use . . . during its case-in-chief at 
4

trial.” The disclosure “must describe the witness’s opinions, 

the bases and reasons for those opinions, and the witness’s 

qualifications.” Id. “Rule 16(a)(1)(G) is intended to minimize 

surprise that often results from unexpected expert testimony,

and to provide the opponent with a fair opportunity to test the 

merit of the expert’s testimony through focused crossexamination.” United States v. Garcia-Lagunas, 835F.3d 479, 494

(4th Cir. 2016) (alteration and internal quotation marks 

omitted).

We conclude that the district court did not abuse its 

discretion in allowing Edwards to testify. The Government 

submitted its initial disclosure well before the scheduled 

commencement of trial, and supplemented this disclosure by 

identifying specific phone calls about which Edwards would 

testify. Moreover, although the parties appeared before the 

district court for an evidentiary hearing on an unrelated matter

before trial, Appellants failed to challenge the sufficiency of

the disclosure until the night before Edwards was scheduled to 

testify. The district court’s exercise of discretion under the 

circumstances was wholly permissible.

Next, Appellants contend that the district court erred in 

admitting against Clay portions of a cooperating witness’

testimony from a previous trial. Clay contends that the 
5

Government’s efforts to locate the witness prior to trial were 

insufficient and that his Confrontation Clause rights were 

violated because he was unable to cross-examine the witness

about events that occurred after the previous trial. 

Separately, Garcia contends that his rights were violated 

because the witness’ testimony improperly implicated him, 

notwithstanding the district court’s instruction that the 

evidence could be considered against Clay only.

We review de novo an alleged Confrontation Clause 

violation. United States v. Reed, 780 F.3d 260, 269 (4th Cir.), 

cert. denied, 136 S. Ct. 112, 113, 167 (2015). The 

Confrontation Clause “bars the admission of ‘testimonial 

statements of a witness who did not appear at trial unless he 

was unavailable to testify, and the defendant had had a prior 

opportunity for cross-examination.’” United States v. Dargan, 

738 F.3d 643, 650 (4th Cir. 2013) (quoting Crawford v. 

Washington, 541 U.S. 36, 53-54 (2004)). Testimony at a prior 

trial qualifies as testimonial evidence. United States v. 

Alvarado, 816 F.3d 242, 251 (4th Cir.), cert. denied, __ S. Ct.

__, 2016 WL 3655209 (U.S. Nov. 28, 2016). “[T]he Confrontation 

Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever 
6

way, and to whatever extent, the defense might wish.” Delaware 

v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

Rule 804(b)(1), Fed. R. Evid., allows the admission into 

evidence of a hearsay statement from an unavailable witness who 

previously testified at a trial, that is offered against a 

defendant who had an opportunity to challenge the declarant on 

cross-examination. A declarant is unavailable if “the 

statement’s proponent has not been able, by process or other 

reasonable means, to procure the declarant’s attendance.” Fed. 

R. Evid. 804(a)(5)(A). For purposes of the Confrontation 

Clause, “[t]he ultimate question is whether the witness is 

unavailable despite good-faith efforts undertaken prior to trial 

to locate and present that witness.” Ohio v. Roberts, 448 U.S. 

56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S. 

at 36.

We conclude that the district court did not err in allowing 

the witness’ prior testimony into evidence. The witness left 

the country after his release from a period of incarceration, 

essentially absconding from a period of community supervision. 

Upon learning that the witness would be needed for a retrial,

the Government immediately took steps to locate the witness, 

requesting help from both British and French authorities but to 

no avail. Officials also verified that the witness had not 
7

reentered the United States using the passport that he used to 

depart. Clay’s previous counsel had had an opportunity to 

conduct cross-examination, and had asked several questions to 

attempt to undermine the witness’ credibility before the prior 

jury. Moreover, in accordance with the parties’ agreement, the 

district court informed the jury about the witness absconding 

from probation, thus serving to amplify counsel’s previous 

cross-examination. Additionally, the witness’ testimony did not 

implicate Garcia by name, and the district court appropriately 

instructed the jury that it could not consider the witness’

testimony against Garcia. See United States v. Min, 704 F.3d 

314, 321 & n.5 (4th Cir. 2013) (noting, in affirming district 

court’s admission of redacted confession, that “confessions do 

not become facially incriminatory when the government introduces 

evidence at trial that links the confession to other 

defendants”); United States v. Chong Lam, 677 F.3d 190, 204 (4th 

Cir. 2012) (“[J]uries are presumed to follow their 

instructions.” (internal quotation marks omitted)).

II.

Clay next challenges the sufficiency of the evidence 

against him. In assessing the sufficiency of the evidence, we 

determine whether there is substantial evidence to support the 

conviction when viewed in the light most favorable to the 
8

Government. United States v. Engle, 676 F.3d 405, 419 (4th Cir. 

2012). “Substantial evidence is evidence that a reasonable 

finder of fact could accept as adequate and sufficient to 

support a conclusion of guilt beyond a reasonable doubt.” Id. 

Thus, “reversal for insufficiency must be confined to cases 

where the prosecution’s failure is clear.” Id. (internal 

quotation marks omitted).

“To prove conspiracy, 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). “Once the Government proves a conspiracy, the 

evidence need only establish a slight connection between a 

defendant and the conspiracy to support conviction.” United 

States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). A defendant 

may be convicted of conspiracy without knowing all of its 

details and even if he plays only a minor role, so long as he 

enters the conspiracy understanding that it is unlawful and 

willfully joins in the plan at least once. Id. at 367-68. 

“Circumstantial evidence alone is sufficient to support a 
9

conviction for conspiracy.” Gomez-Jimenez, 750 F.3d at 378 

(internal quotation marks omitted).

We conclude that sufficient evidence supports Clay’s 

conviction. The Government introduced phone calls between Clay 

and Garcia, which Edwards interpreted to refer to drug 

transactions. A cooperating witness placed Clay in New York 

with Garcia to discuss bad heroin that Clay had purchased. 

Garcia also informed the cooperating witness that he supplied 

two people in Baltimore, one of whom, based on the other trial 

evidence, was Clay. Additionally, while Clay was not tied to 

all of the drug transactions proven at trial, he was seen 

operating in a similar manner to his coconspirators. Finally, a 

jailhouse informant’s testimony provided additional support for 

the jury to find Clay responsible for over one kilogram of 

heroin. Thus, we conclude that there was sufficient evidence to 

support the jury’s verdict.

III.

Finally, Clay contends that his sentence is unreasonable 

because the district court failed to adequately explain his 

sentence and should have rejected the application of the career 

offender guideline in this instance. We review a defendant’s 

sentence “under a deferential abuse-of-discretion standard.” 

Gall v. United States, 552 U.S. 38, 41 (2007). Under this 
10

standard, a sentence is reviewed for both procedural and 

substantive reasonableness. Id. at 51. In determining 

procedural reasonableness, we consider whether the district 

court properly calculated the defendant’s advisory Guidelines 

range, gave the parties an opportunity to argue for an 

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) 

factors, and sufficiently explained the selected sentence. Id.

at 49-51.

If a sentence is free of “significant procedural error,” 

then we review it for substantive reasonableness, “tak[ing] into 

account the totality of the circumstances.” Id. at 51. “Any 

sentence that is within or below a properly calculated 

Guidelines range is presumptively reasonable.” United States v. 

Louthian, 756 F.3d 295, 306 (4th Cir. 2014). “Such a 

presumption can only be rebutted by showing that the sentence is 

unreasonable when measured against the 18 U.S.C. § 3553(a) 

factors.” Id.

In evaluating a sentencing court’s explanation of a 

selected sentence, we consistently have held that, although the 

district court must consider the statutory factors and explain 

the sentence, “it need not robotically tick through the 

§ 3553(a) factors.” United States v. Helton, 782 F.3d 148, 153 

(4th Cir. 2015) (internal quotation marks omitted). At the same 
11

time, the district court “must make an individualized assessment 

based on the facts presented.” Gall, 552 U.S. at 50. While the 

“individualized assessment need not be elaborate or lengthy, 

. . . it must provide a rationale tailored to the particular 

case at hand and adequate to permit meaningful appellate 

review.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 

2009) (internal quotation marks omitted).

We conclude that Clay’s within-Guidelines sentence is 

reasonable. While the court did not explicitly reference the 

18 U.S.C. § 3553(a) factors in explaining its sentence, it 

offered a detailed explanation referring to those factors. The 

court first noted the seriousness of the offense and then 

considered Clay’s particular circumstances. See 18 U.S.C. 

§ 3553(a)(1), (2)(A). The court also recognized its discretion 

to disregard the career offender guideline, but permissibly 

found that a sentence within Clay’s advisory guidelines range 

was appropriate. See id. § 3553(a)(3), (4). Moreover, while 

the district court recognized that Clay’s sentence would be more 

severe than those of his coconspirators, the court explained why 

the disparity was appropriate. See id. § 3553(a)(6). Finally, 

as to substantive reasonableness, we conclude that Clay has 

failed to overcome the presumption of reasonableness accorded to 

his within-Guidelines sentence.
12

IV.

For all these reasons, we affirm the district court’s

judgments. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

AFFIRMED