PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-4565

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

DRICKO DASHON HUSKEY, a/k/a Drizzy,

 Defendant – Appellant.

No. 20-4572

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

RENAIRE ROSHIQUE LEWIS, JR., a/k/a Banz, a/k/a Esco,

 Defendant – Appellant.

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No. 20-4573

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

ALANDUS MONTRELL SMITH, a/k/a Kadafia,

 Defendant – Appellant.

No. 20-4574

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

JONATHAN WRAY, a/k/a Jon, a/k/a Yungin,

 Defendant – Appellant.

Appeals from the United States District Court for the Western District of North Carolina,

at Charlotte. Frank D. Whitney, District Judge. (3:17-cr-00134-FDW-DSC-34; 3:17-cr00134-FDW-DSC-43; 3:17-cr-00134-FDW-DSC-69; 3:17-cr-00134-FDW-DSC-82)

Argued: October 25, 2023 Decided: January 8, 2023

Before RUSHING and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge. 

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Affirmed by published opinion. Judge Heytens wrote the opinion, in which Judge Rushing 

and Judge Keenan joined. 

ARGUED: Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina; 

William Stimson Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC, 

Greensboro, North Carolina; Erin Margaret Trodden, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Charlottesville, Virginia; William Robinson Heroy, GOODMAN, 

CARR, LAUGHRUN, LEVINE & GREENE PLLC, Charlotte, North Carolina; for 

Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, 

Asheville, North Carolina, for Appellee. ON BRIEF: Paul K. Sun, Jr., ELLIS & 

WINTERS LLP, Raleigh, North Carolina, for Appellant Jonathan Wray. Daniel Roberts, 

GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE PLLC, Charlotte, North 

Carolina, for Appellant Renaire Lewis. Juval O. Scott, Federal Public Defender, OFFICE 

OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant 

Alandus Smith. Dena J. King, United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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TOBY HEYTENS, Circuit Judge:

Four people were charged with conspiracy under the Racketeer Influenced Corrupt 

Organization Act, 18 U.S.C. § 1962(d), and related crimes involving their membership in

the United Blood Nations (UBN)—a national prison and street gang. After a long trial, all 

were convicted. The defendants challenge their convictions and sentences. We conclude 

the challenges lack merit and affirm the district court’s judgments.

I.

A.

Because the defendants were convicted after a trial, we describe the evidence “in 

the light most favorable to the Government.” United States v. Burgos, 94 F.3d 849, 854 

(4th Cir. 1996) (en banc) (citation removed). The defendants were members of the Nine 

Trey Gangsters, a UBN “set” with territory in Shelby, North Carolina. JA 455. UBN sets 

are hierarchical, with a lineup (or whip) led by, in descending order, a Godfather, High OG 

(original gangster), and Low OG. Star generals are under each Low OG, from the highest 

ranking five-star general to the lowest ranking one-star. Gang members go by “tags,” or 

gang names. JA 753.

UBN members follow a code requiring them, among other things, to follow the 

chain of command, defend the gang’s reputation, and pay dues. Members can pay dues by 

selling drugs, robbing, and stealing. They are also expected to “put in work” for the gang—

that is, engage in “criminal activity” like assaults, robberies, shootings, or murder, and 

generally “do what [they’re] told”—as part of their membership and to elevate in rank. 

JA 588, 753.

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Dricko Huskey was a Low OG who “[oversaw] the Shelby area.” JA 600. Huskey 

dealt drugs from at least 2013 through his arrest in 2016, including regularly supplying a 

higher ranking UBN member. After a public dispute in 2016, Huskey shot and killed 

Donnell Murray.

Renaire Lewis was a one-star general. Lewis dealt drugs and participated in a 

robbery at the direction of higher ranking UBN members. During that robbery, Lewis fired 

gunshots that wounded Tanner Cobb and killed Malik Brown. 

Alandus Smith was a high-ranking Nine Trey member, described variously as a Low 

OG, a five-star general, and a four-star general. A 2014 search of Smith’s bedroom turned 

up a drug ledger revealing Smith’s regular deals with other UBN members. When police 

searched Smith’s home during a 2015 arrest, they found $400 in cash, 

15 methamphetamine tablets, nine baggies of marijuana, digital scales, and a gun with an 

obliterated serial number. 

Jonathan Wray was a Nine Trey member of unknown rank. Wray dealt drugs from 

at least 2011 to 2015. Wray admitted shooting and killing Christopher Odoms, a member 

of the Crips, a rival gang. 

B. 

Huskey, Lewis, Smith, and Wray were charged along with three others in a 23-count 

indictment. (The other three people do not figure into this appeal; we refer to Huskey, 

Lewis, Smith, and Wray collectively as “defendants.”) 

Count 1 charged all defendants with conspiring to violate RICO for their actions as 

UBN members. The government also gave notice of various special sentencing factors on 

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that charge that could expose the defendants to additional punishment. The first accused 

the defendants of “agree[ing] that multiple acts of murder would be committed” as part of 

the RICO conspiracy. JA 218. Other sentencing factors accused Huskey of killing Donnell 

Murray, Lewis of killing Malik Brown, and Wray of killing Christopher Odoms. 

Lewis faced five more charges. Those charges were: murder in aid of racketeering; 

attempted Hobbs Act robbery; attempted murder in aid of racketeering; and two counts of 

using and carrying a firearm during and in relation to crimes of violence, one of which 

resulted in death. 

Smith was charged with four other offenses. Those charges were: possessing 

marijuana with intent to distribute it; possessing methamphetamine with intent to distribute 

it; possessing a firearm in furtherance of a drug trafficking offense; and possessing a 

firearm after being convicted of a felony. 

C. 

The defendants pleaded not guilty and were tried together. Each unsuccessfully 

moved for a judgment of acquittal. Subject to one exception, the jury found the defendants 

guilty of every charged offense and responsible for every sentencing factor. The sole 

exception involved Huskey. Despite finding him responsible for the murder of Donnell 

Murray, the jury declined to find that Huskey “agreed to conduct and participate in the 

conduct of the affairs of the [RICO] enterprise through a pattern of racketeering activity 

that included acts involving murder.” JA 3570. 

The district court sentenced Huskey to life imprisonment, Lewis to life in prison 

plus 20 years, Smith to 300 months of imprisonment, and Wray to life imprisonment.

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II.

We begin with the defendants’ sufficiency challenges. We do so because any 

defendant who prevails on this point is entitled to a judgment of acquittal without further 

proceeding. See Burks v. United States, 437 U.S. 1, 16 (1978) (government gets only one 

“fair opportunity to offer whatever proof it [can] assemble”). Despite several evidentiary 

challenges (which we discuss in Part III, below) we consider “all the evidence considered 

by the jury, both admissible and inadmissible” when assessing a sufficiency challenge.

United States v. Simpson, 910 F.2d 154, 159 (4th Cir. 1990); accord Lockhart v. Nelson, 

488 U.S. 33, 40 (1988).

In resolving a sufficiency challenge, we view the evidence in the light “most 

favorable to the prosecution” and assume the jury resolved all credibility disputes or 

judgment calls in the government’s favor. United States v. Perry, 335 F.3d 316, 320 

(4th Cir. 2003). We must uphold the jury’s verdict if “any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United States v. 

Millender, 970 F.3d 523, 528 (4th Cir. 2020). Applying these standards, we conclude the 

defendants have not met their “heavy burden” to show their convictions were not supported 

by substantial evidence. United States v. Davis, 75 F.4th 428, 437 (4th Cir. 2023)

(quotation marks removed).

A.

All four defendants challenge the sufficiency of the evidence to support their RICO 

conspiracy convictions. Those convictions “require[d] proof that: (1) an enterprise 

affecting interstate commerce existed; (2) each defendant knowingly and intentionally 

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agreed with another person to conduct or participate in [its] affairs; and (3) each defendant 

knowingly and willfully agreed that he or some other member of the conspiracy would 

commit at least two racketeering acts” in furtherance of the conspiracy. United States v. 

Zelaya, 908 F.3d 920, 926 (4th Cir. 2018) (quotation marks removed). As relevant here, 

“racketeering activity” includes murder, robbery, and controlled substances offenses that

violate state law. 18 U.S.C. § 1961(1).

1.

Huskey alone argues there was insufficient evidence to establish that he was a UBN 

member, thus defeating any claim he agreed to conduct or participate in the enterprise’s 

affairs. We are unpersuaded. True, “the RICO conspiracy statute does not criminalize mere 

association with” a RICO enterprise and requires a “knowing agreement to participate” in 

its affairs. United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (quotation marks 

removed). But we have reviewed the evidence and conclude it was sufficient to show 

Huskey’s knowing agreement to participate in the UBN’s activities. Two former members 

identified Huskey as a UBN member. The witnesses discussed Huskey’s UBN activities, 

including his leadership roles and participation in disciplining other UBN members. Law 

enforcement witnesses also identified social media posts and photos of Huskey with other 

UBN members, wearing gang-affiliated colors and using gang signs. The jury reviewed 

Huskey’s text messages and social media, which used UBN slang and otherwise reflected

gang membership. Along with other evidence in the record, this evidence made it 

reasonable for the jury to find Huskey agreed to participate in the RICO enterprise’s affairs.

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2.

All four defendants insist there was no evidence to establish the third element—that 

their criminal activities related to the UBN’s affairs. Per this argument, each defendant’s

drug trafficking, robberies, and murders were personal pursuits by people who happened 

to be affiliated with the UBN. And because this criminal activity was personal, not gang 

related, the defendants say the government failed to prove they “knowingly and willfully 

agreed that” they, or someone else in the conspiracy, “would commit at least two 

racketeering acts.” Zelaya, 908 F.3d at 926 (quotation marks removed).

Here too, we are unconvinced. The jury heard evidence that UBN members 

regularly trafficked drugs to pay dues to UBN, that UBN members are expected to respond 

to public displays of disrespect (at issue with Huskey’s murder of Murray and Wray’s 

murder of Odom) with violence, and that UBN members are expected to “put in work”

(JA 753)—including committing violent crimes—as part of gang membership. Along with 

the other evidence in the record, this evidence made it reasonable for the jury to find that 

defendants’ drug trafficking, robberies, and murders were committed in relation to the 

UBN enterprise.

3.

Unlike the other three defendants, the jury was not asked to—and did not—find 

Smith personally committed any murders. From that, Smith argues the government did not 

show he agreed he “would commit at least two racketeering acts.” Zelaya, 908 F.3d at 926

(quotation marks removed). But the government was not required to show each defendant 

committed each type of racketeering act charged in the indictment. See United States v. 

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Barronette, 46 F.4th 177, 207 (4th Cir. 2022) (“RICO conspiracy does not requir[e] the 

Government to prove each conspirator agreed that he would be the one to commit two 

predicate acts.” (quotation marks removed)). Instead, proving a RICO conspiracy charge 

requires showing each defendant “knowingly and willfully agreed that he or some other 

member of the conspiracy would commit at least two racketeering acts.” Zelaya, 908 F.3d 

at 926 (emphasis added) (quotation marks removed). For that reason, Smith’s conviction 

on Count 1 is valid if the government proved he agreed that at least two racketeering acts

would be committed as part of the criminal enterprise. See Barronette, 46 F.4th at 207 

(“attribut[ing]” murder committed by some appellants “to each [a]ppellant as members of 

the RICO enterprise”). 

The government met that burden. The jury found, through a special sentencing 

factor, that Smith agreed multiple acts of murder would be committed as part of his UBN 

activities. The finding was supported by evidence that UBN members were expected to 

engage in criminal activity—including “to potentially kill someone for the gang” (JA 

588)—as part of membership, and by Smith’s high rank within the organization.

Smith challenges this latter point, asserting his rank alone does not permit an 

inference he agreed murders would be committed as part of the UBN enterprise. To support

this argument, Smith cites United States v. Barnett, 660 Fed. Appx. 235 (4th Cir. 2016), 

for the proposition that “simply being a member of the gang is not sufficient to show that 

the person engaged or agreed that someone else would engage in two predicate racketeering 

acts.” Oral Arg. 15:08. But Barnett is a weak reed to rely on, both because it is unpublished 

and because the defendant whose conviction was vacated in that case was not a UBN 

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member at all—much less a high-ranking one like Smith. See Barnett, 660 Fed. Appx. at 

248.

Smith is right that “the RICO conspiracy statute does not criminalize mere 

association with an enterprise.” Mouzone, 687 F.3d at 218 (quotation marks removed). But 

high-ranking members like Smith are not merely associated with the UBN. The jury could 

reasonably have inferred from Smith’s high rank that he knew about and agreed to UBN’s 

overall objectives—which, substantial evidence showed, included murders. Nothing more 

was required. See United States v. Cornell, 780 F.3d 616, 624 (4th Cir. 2015) (“The 

partners in the criminal plan need only agree to pursue the same criminal objective, 

regardless of whether that criminal objective is ever stated or carried out.” (quotation marks 

removed)).

4.

For similar reasons, Lewis’s and Wray’s sufficiency challenges to the sentencing 

factors fail too. Indeed, Lewis and Wray conceded their participation in the enterprise, and 

the jury found they both personally committed at least one murder. Along with the other 

evidence, this was sufficient to support the jury’s verdict.

B.

Lewis also raises sufficiency challenges to four of the five counts unique to him. 

(Lewis does not contest sufficiency on Count 13, which charged him with attempted Hobbs 

Act robbery.) Each challenge fails.

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1.

Counts 12 and 15 charged Lewis with murder in aid of racketeering and attempted 

murder in aid of racketeering. Both convictions stem from a robbery where Lewis fired 

shots that killed one victim and wounded another. Lewis argues the robbery and resulting 

murder and attempted murder were a “personal thing” unrelated to the UBN. Defs. Consol.

Br. 56 (quoting JA 2767–68 (coconspirator’s testimony)). But the evidence showed Lewis 

was recruited by another UBN member to participate in the robbery, committed the robbery 

with other UBN members, and followed orders from UBN superiors when disposing of the 

guns after the robbery. The evidence also showed UBN members were expected to commit 

violent crimes such as robberies and murders on behalf of the gang. It was thus not 

unreasonable for the jury to conclude the government met its burden to show Lewis 

“committed his violent crime because he knew it was expected of him by reason of his 

membership in the enterprise or that he committed it in furtherance of that membership.” 

Zelaya, 908 F.3d at 927 (quotation marks removed).

2.

Count 14 charged Lewis with using a firearm during and in relation to a crime of 

violence resulting in death. Tracking the indictment, the district court instructed the jury 

on two alternative theories for the underlying crime: murder in aid of racketeering as 

charged in Count 12 and attempted Hobbs Act robbery as charged in Count 13. Lewis did 

not object to this instruction or otherwise argue before the district court that Count 12 or 

Count 13 could not serve as a valid predicate. The jury found Lewis guilty on Count 14 

without specifying the predicate(s) on which that finding was based.

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More than two and a half years later, the Supreme Court held one of the predicates 

charged in Count 14—attempted Hobbs Act robbery—does not qualify as a crime of 

violence under the relevant statute. See United States v. Taylor, 142 S. Ct. 2015, 2025–26 

(2022). Smith raises Taylor in his opening brief, but the ask he makes of us is narrow. 

Smith does not challenge the district court’s jury instructions—a claim that would be 

reviewed only for plain error given Smith’s failure to raise the issue in the district court. 

See Fed. R. Crim. P. 52(b). Nor does Smith argue that the district court’s instructing the 

jury on something Taylor holds is a legally invalid predicate (attempted Hobbs Act 

robbery) requires vacating his conviction on Count 14 even if the evidence was sufficient 

to support the still-valid predicate (murder in aid of racketeering). See generally Yates v. 

United States, 354 U.S. 298 (1957). As a result, any such arguments are forfeited, and we 

decline to consider them. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th 

Cir. 2017).

The argument Lewis presses is far more limited. Lewis argues that, after Taylor, the 

attempted Hobbs Act theory is not supported by law and he is entitled to a judgment of 

acquittal on Count 14 because the other theory—murder in aid of racketeering as charged 

in Count 12—failed for insufficient evidence. Because we conclude the evidence was 

sufficient to support Count 12, see Part II(B)(1), supra, we reject this argument as well.

3.

Like Count 14, Count 16 accused Lewis of using and carrying a firearm during and 

in relation to a crime of violence—this time, the attempted murder in aid of racketeering 

charged in Count 15. Lewis’s two-paragraph sufficiency challenge to Count 16 simply 

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reprises his sufficiency challenge to Count 15. And because we have already rejected the 

latter claim, see Part II(B)(1), supra, we reject this one as well.

C.

Smith’s remaining sufficiency challenges also fail. Smith does not dispute the 

adequacy of the evidence supporting his convictions for possessing marijuana with the 

intent to distribute it (Count 17) or possessing a firearm after being convicted of a felony 

(Count 20). Instead, Smith says the government failed to present sufficient proof that he 

possessed methamphetamine with the intent to distribute it (Count 18) or that he possessed 

a firearm in furtherance of a drug trafficking offense (Count 19). Neither claim succeeds.

1.

When Smith was arrested, the police seized 15 methamphetamine pills. The seized 

pills were packaged together, not separately—which Smith argues rebuts any intent to 

distribute. But the arresting officers testified 15 pills were a “distribution amount.” 

JA 1760–61, 1780; see JA 1738 (methamphetamine was “more than a user amount”). A 

reasonable jury could conclude that this evidence, along with Smith’s Facebook messages 

and a drug ledger showing Smith conducted a drug business over a long time, supported 

Smith’s methamphetamine conviction.

2.

The government also showed Smith possessed a firearm in furtherance of a drugtrafficking offense. “Furtherance” is defined broadly to mean “advanc[ing]” or “help[ing]

forward,” and includes possessing a gun to protect the drugs or the drug distributor or to 

use “as an enforcement mechanism in a dangerous transactional business” or “serve as a 

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visible deterrent.” United States v. Moore, 769 F.3d 264, 270 (4th Cir. 2014) (quotation 

marks removed). When Smith was arrested, police found a gun with an obliterated serial 

number alongside the evidence of his drug-trafficking offenses. We do not hold that the 

gun’s proximity to the drugs, standing alone, would be enough. But that proximity, coupled 

with the obliterated serial number and the other evidence—which tends to suggest the gun 

was used in connection with illegal activity—supports Smith’s Section 924(c) conviction.

III.

Having concluded this is not among the “rare” cases requiring reversal for 

insufficient evidence, United States v. Haas, 986 F.3d 467, 477 (4th Cir. 2021) (quotation 

marks removed), we turn to the evidentiary challenges. Lewis argues the district court 

should not have admitted his un-Mirandized statements or a text message chain between 

him and a still-unknown person. Huskey says the district court should have admitted certain 

grand jury testimony and unsworn informant statements. On each issue, we see no 

reversible error.

A.

1.

Lewis asserts the district court should have suppressed certain statements he made 

because he was not given Miranda warnings at a meeting his attorney arranged and during 

which he had an attorney present with whom he could—and did, in fact—consult. The 

district court rejected that argument, and so do we.

Lewis identifies no decision from any court concluding Miranda warnings are 

required under such circumstances. To the contrary, “[i]t is generally accepted that if [an] 

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attorney was actually present during the interrogation, then this obviates the need for the 

warnings.” 2 Wayne R. LaFave et al., Crim. Proc. § 6.8(a) (4th ed. 2023) (LaFave).

We need look no further than Miranda itself to see why Lewis’s challenge is 

misplaced. In that case, the Supreme Court recognized that both the constitutional rights 

not to “be compelled . . . to be a witness against [one]self,” U.S. Const. amend. V, and to 

have “the Assistance of Counsel” in one’s defense, U.S. Const. amend. VI, could be “put 

in jeopardy” by “official overbearing.” Miranda v. Arizona, 384 U.S. 436, 442 (1966). To 

ensure the “constitutional rights of the individual could be enforced against overzealous 

police practices,” that Court held that “the prosecution may not use statements . . . 

stemming from custodial interrogation of the defendant unless it demonstrates the use of 

procedural safeguards effective to secure the privilege against self-incrimination.” Id. at 

444. As the Court explained, the Miranda warnings protect people who have been “thrust 

into an unfamiliar atmosphere and run through menacing police interrogation procedures” 

“created for no purpose other than to subjugate the individual to the will of his examiner.” 

Id. at 457. 

Such circumstances are absent here. For one thing, this was not a governmentcreated atmosphere. Instead, “[t]he interview was arranged ahead of time, and with the 

assistance of [Lewis’s] counsel.” JA 3585.1 What is more, Lewis had counsel present the 

entire time and even consulted privately with his lawyer during a break in the interview. 

1 According to a leading treatise, “there is a split of authority” about whether 

Miranda warnings are required when the defendant’s attorney “arranged for the contact” 

but “was not present” during the questioning. 2 LaFave § 6.8(a).We need not consider that 

issue here.

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The facts here well-illustrate the Supreme Court’s observation in Miranda that “[t]he 

presence of counsel . . . would be the adequate protective device necessary to make the 

process of police interrogation conform to the dictates of the privilege” against compulsory 

self-incrimination. 384 U.S. at 466. 

Against all this, Lewis cites just one case: Sweeney v. Carter, 361 F.3d 327 (7th Cir. 

2004). That decision does not help him. True, Sweeney rejected the idea that a suspect’s 

pre-interrogation conversations with counsel “can double for the usual warnings given by 

law enforcement officers” in situations where warnings would otherwise be required. Id.

at 331. But the court ultimately held Sweeney had “knowingly and voluntarily waived his 

Miranda rights” despite not having been given Miranda warnings. Id. The reasons the court 

gave were that Sweeney had counsel during the meeting, discussed the possibility of 

cooperation with counsel before the meetings, and attended the meetings for the purpose 

of cooperating with authorities. Id. This situation is not materially different. We thus reject 

Lewis’s Miranda claim. 

2. 

Lewis also insists the district court should not have admitted a text message

exchange between him and an unknown declarant under Federal Rule of Evidence 

801(d)(2)(E). Reviewing that decision “for an abuse of discretion[,]” United States v. 

Lighty, 616 F.3d 321, 351 (4th Cir. 2010), we see none here. 

At trial, Lewis objected to the admission of the following exchange, which occurred 

the night before the robbery and murder of Malik Brown (for which the jury found Lewis 

responsible):

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Unidentified: yoooo

Unidentified: another lick even sweeter

Lewis: What’s goodie

Unidentified: remember that [n-word] that pulled up at my crib with

the Beamer

Lewis: Yea

Unidentified: gotta get that [n-word]

Unidentified: he got the trees and bread

Lewis: Gz

SA 1, ECF 84.

Unless an exception applies, hearsay “is not admissible” in federal trials. Fed. R. 

Evid. 802. Hearsay is generally defined as an out-of-court statement offered “to prove the 

truth of the matter asserted in the statement.” Id. at 801(c)(2). But Rule 801(d), in turn, 

excludes from that definition certain statements that would otherwise qualify as hearsay. 

As relevant here, Rule 801(d)(2)(A) and (E) provide that “[a] statement . . . is not hearsay” 

if it “is offered against an opposing party and” “(A) was made by the party in an individual 

or representative capacity” or “(E) was made by the party’s coconspirator during and in 

furtherance of the conspiracy.” 

As much as Lewis’s brief can be read as suggesting the entire thread should not have 

been admitted, that is plainly wrong. Lewis admits he made the three statements attributed 

to him—“What’s goodie,” “Yeah,” and “Gz.” Those statements are thus excluded from the 

definition of hearsay by Rule 801(d)(2)(A) and could not properly be excluded under Rule 

802.

That leaves the statements by the other person. The messages were retrieved from 

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Lewis’s phone, and the government admitted it did not have evidence about the declarant

beyond the statements themselves. The government still argued—and the district court 

agreed—that the unknown declarant’s statements were admissible under Rule 

801(d)(2)(E). We see no abuse of discretion in that conclusion, and thus need not address 

the government’s alternative arguments for admissibility.

As this Court has explained, Rule 801(d)(2)(E) does not require “the offering party 

to identify the declarant by name.” United States v. Ayala, 601 F.3d 256, 268 (4th Cir. 

2010). “Instead, the offering party need only show that the unknown declarant was more 

likely than not a conspirator.” Id. (quotation marks removed). As with other “preliminary 

[factual] questions” relevant to admissibility, a district court’s ruling on this point is 

“subject to a clearly erroneous standard of review.” United States v. Blevins, 960 F.2d 

1252, 1255 (4th Cir. 1992); see Bourjaily v. United States, 483 U.S. 171, 181 (1987). 

The district court made no clear error in concluding the government met its burden. 

The government introduced evidence that, in UBN slang, “lick” means “robbery” (JA 606),

“trees” means “cannabis” (JA 850), “bread” means “money” (JA 797), and “gz” means 

“okay” (JA 2750). The government also introduced evidence that, the day after the text 

message exchange, Lewis tried to rob Malik Brown for “[s]ome weed.” JA 2748.

Testimony further established UBN members regularly committed robberies as part of their 

duties to the UBN. Because the messages contained UBN slang and discussed UBN 

business that happened the next day, it was reasonable for the district court to conclude the 

unknown declarant was “more likely than not a conspirator.” Ayala, 601 F.3d at 268

(quotation marks removed). We thus hold the district court committed no abuse of 

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discretion in admitting the text messages.2

B. 

We turn now to Huskey’s evidentiary challenges. Unlike Lewis’s efforts to keep 

evidence out, Huskey claims the district court erred in preventing him from introducing 

two types of evidence. Still reviewing the district court’s evidentiary rulings for abuse of 

discretion, Lighty, 616 F.3d at 351, we again see none. 

1. 

Huskey challenges the district court’s exclusion of grand jury testimony by a former 

UBN member who said Huskey was in the UBN “a long time ago” but “got kicked out.” 

U.S. Br. 35 (quoting relevant testimony). There is no doubt those statements constitute 

hearsay and were inadmissible unless an exception applies. But Huskey argues the 

statements should have been admitted under Federal Rule of Evidence 804(b)(1). That 

hearsay exception has three requirements. First, “the declarant [must be] unavailable as a 

witness.” Fed. R. Evid. 804(b); see id. at 804(a) (defining unavailability). Second, the 

statements must have been “given as a witness at a trial, hearing, or lawful deposition.” Id. 

at 804(b)(1)(A). Third, the statements must be “now offered against a party who had . . . 

an opportunity and similar motive to develop [the statements] by direct, cross-, or redirect 

examination.” Id. at 801(b)(1)(B).

Most of these requirements are satisfied. The government concedes the former UBN 

2 Despite passing references to the Confrontation and Due Process Clauses, Lewis’s 

brief makes no separate constitutional argument. Any such claim is thus forfeited. 

See Grayson O Co., 856 F.3d at 316. 

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member was unavailable as a witness at Huskey’s trial. See Oral Arg. 26:30–27:06. No one 

denies grand jury testimony satisfies the requirement that the prior statement have been 

“given as a witness at a trial, hearing, or lawful deposition.” Fed. R. Evid. 804(b)(1)(A); 

accord United States v. Salerno, 505 U.S. 317, 321 (1992) (noting parties’ concession on 

that point). And the government had an opportunity to develop the unavailable witness’s 

testimony—after all, the government summoned that witness to appear before the grand 

jury in the first place. 

The only question is thus whether the district court abused its discretion in 

concluding the government lacked a similar motive during the grand jury proceeding

compared to the one it would have had at trial. That requirement is a precondition for 

admitting hearsay statements under Rule 804(b)(1)(B), and we have no authority to slight 

it. See Salerno, 505 U.S. at 321 (emphasizing that “[n]othing in the language of Rule 

804(b)(1) suggests that a court may admit former testimony absent satisfaction of each of 

the Rule’s elements” and declining to prevent the government from benefiting from the 

“similar motive requirement” in criminal cases).

The government argues—and we agree—that the Second Circuit’s decision in 

United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en banc), sets out the appropriate 

legal standard. As that decision recognized, “[w]hether the degree of interest in prevailing 

on an issue is substantially similar at two proceedings will sometimes be affected by the 

nature of the proceedings.” Id. at 912. “Where both proceedings are trials and the same 

matter is seriously disputed . . ., it will normally be the case that the side opposing the 

version of a witness at the first trial had a . . . similar . . . motive [as] at the second trial.” 

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Id. In contrast, grand jury proceedings differ from trials in many ways. Prosecutors often 

use grand juries “to investigate possible crimes and identify possible criminals” rather than 

simply secure an indictment—something that can make it “quite unrealistic to characterize 

the prosecutor as the ‘opponent’ of a witness’s version.” Id. at 913. And even when a 

prosecutor is seeking an indictment, the lower burden of proof at the grand jury stage 

(probable cause versus beyond a reasonable doubt) means the prosecutor does not 

“necessarily” have “a motive to challenge [exculpatory grand jury] testimony that is similar

to the motive at trial.” Id.; see id. (identifying other reasons why a prosecutor’s motives 

may differ between a grand jury proceeding and trial).

Like the Second Circuit, we reject any per se rule “that the prosecutor’s motives at 

the grand jury and at trial are almost always dissimilar” or “that the prosecutor’s motives 

in both proceedings are always similar.” DiNapoli, 8 F.3d at 914. Instead, “the inquiry as 

to similar motive must be fact specific.” Id. The ultimate question is “whether the party 

resisting the offered testimony at a pending proceeding had at a prior proceeding an interest 

of substantially similar intensity to prove (or disprove) the same side of a substantially 

similar issue.” Id. at 914–15.

Applying those standards here, we hold the district court committed no abuse of 

discretion. The government emphasizes the witness testified before the grand jury “that she 

had joined the UBN 15 years earlier, had actively participated in the gang only for 

approximately three years, and . . . no longer saw or talked to UBN members.” U.S. Br. 97. 

Had the witness testified at trial, the government asserts it “would have vigorously crossexamined her, likely emphasizing her lack of connection to the UBN in Shelby and her 

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inability to provide any supporting details, including even a loose estimate of when Huskey 

was kicked out of the gang.” Id.

To be sure, forgone cross-examination is not a conclusive factor, see DiNapoli, 

8 F.3d at 914, but we find it particularly indicative of the government’s motive here. Far 

from resisting the witness’s offered testimony, our review of the relevant grand jury 

transcript shows the prosecutor quickly moved from topic to topic, limiting any follow up 

questions to mere clarification. The district court permissibly concluded the prosecutor was 

not testing the witness’s account but “trying to learn things about the case” and “determine 

whether there was sufficient evidence by probable cause for indictment.” JA 2877. We thus 

hold the district court committed no abuse of discretion in excluding the grand jury 

testimony.

2.

Huskey’s other evidentiary argument is that the district court abused its discretion 

by refusing to admit statements by confidential FBI informants under Federal Rule of 

Evidence 807. That is a big swing, and it does not connect.

Rule 807 is captioned “Residual Exception.” It provides that even hearsay 

statements that would otherwise be inadmissible are not “excluded by the rule against 

hearsay” so long as:

(1) the statement is supported by sufficient guarantees of trustworthiness—

after considering the totality of circumstances under which it was made 

and evidence, if any, corroborating the statement; and

(2) it is more probative on the point for which it is offered than any other 

evidence that the proponent can obtain through reasonable efforts. 

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Fed. R. Evid. 807(a). This exception is “used very rarely, and only in exceptional 

circumstances.” United States v. Heyward, 729 F.2d 297, 299–300 (4th Cir. 1984)

(quotation marks removed).

The district court committed no abuse of discretion in concluding such exceptional 

circumstances were lacking. Huskey argues the unsworn statements contain “sufficient 

guarantees of trustworthiness,” Fed R. Evid. 807(a)(1), because lying during FBI 

interviews would defeat the purpose of cooperating as an informant. But the district court 

did not exceed its discretion in concluding the statements here cannot be accepted as 

reliable. For one, the statements are internally inconsistent, with one informant saying 

Huskey was stripped of his rank but was still a UBN member and another saying Huskey 

was kicked out of the group and had a hit out on his head. The unsworn statements also 

contradicted undisputed evidence. For example, Huskey’s presentence report does not 

show any arrests for December 2012, which casts doubt on the reliability of an informant’s

statement that, during that month, Huskey was cooperating with law enforcement while in 

jail to reduce his time. What is more, the informant’s claim that Huskey moved out of the 

Shelby area after a “hit” was placed on his head by the UBN in 2012 is hard to square with 

trial testimony showing that Huskey was selling drugs in Shelby’s UBN-controlled 

territories in 2013 and to Nine Trey leadership all the way up to his 2016 arrest. We thus 

conclude the district court did not act arbitrarily or irrationally in excluding the informants’ 

internally inconsistent and uncorroborated unsworn statements to the FBI.

IV.

Wray challenges two features of the government’s closing argument and one aspect 

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about how the district court instructed the jury. Here too, we see no reversible error.

A.

Wray made no objections during the government’s closing. As a result, his 

challenges are reviewed only for plain error under Federal Rule of Criminal Procedure 

52(b). To meet that “difficult” standard, it is not enough for Wray to establish there was an 

error. Puckett v. United States, 556 U.S. 129, 135 (2009). Rather, Wray also must show 

that: (a) any error was plain; (b) the error affected substantial rights, “meaning that there is 

a reasonable probability that, but for the error, the outcome of the proceeding would have 

been different”; and (c) “the error had a serious effect on the fairness, integrity or public 

reputation of judicial proceedings.” United States v. Heyward, 42 F.4th 460, 465 (4th Cir. 

2022) (quotation marks removed). Wray has “the burden of establishing each of ” these 

elements, Greer v. United States, 141 S. Ct. 2090, 2097 (2021), and he fails to carry it.

1.

To begin, we perceive no reversible error in Wray’s “Golden Rule” arguments. The 

government briefly asked the jury to “[i]magine you’re Chris Odoms” at “a party where 

you think you’re safe from violence.” JA 3502. According to Wray, these remarks crossed 

the line by “urg[ing] jurors to identify individually with the victim[ ].” United States v. AlMaliki, 787 F.3d 784, 795 (6th Cir. 2015). On the other hand, the government never took 

the second step of asking the jurors to approach their task as they imagined Odoms might 

want them to or to punish Wray as they would have wanted had they been the victim of the 

charged crimes. See Leathers v. General Motors Corp., 546 F.2d 1083, 1085–86 (4th Cir. 

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1976); accord Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741 & n.10 (5th Cir. 1978).

In the end, we need not decide whether the remarks Wray challenges were 

improper—much less clearly or obviously so—because we conclude Wray failed to satisfy 

the third plain error requirement by showing any error affected his substantial rights. 

Wray’s argument that the comments “encouraged the jurors to convict” based on 

“sympathy,” Defs. Consol. Br. 82, does not satisfy us that the comments affected his 

substantial rights.

2.

Wray fails to show that the government obviously engaged in improper witness 

vouching or that any such vouching affected his substantial rights. “Vouching generally 

occurs when the prosecutor’s actions are such that a jury could reasonably believe that the 

prosecutor was indicating a personal belief in the credibility of the witness.” United States 

v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993).

On appeal, Wray identifies three comments he claims were problematic. The first 

occurred when, after summarizing evidence from testifying witnesses, a prosecutor said 

those witnesses were “not making [] up” their identifications of Wray. JA 3374. But the 

prosecutor immediately followed up that statement by saying: “The credibility of the 

witness is for you to decide. You. Not myself, not any of these fine lawyers here.” Id. The 

prosecutor then made a permissible argument about credibility—noting that, although 

government witnesses benefit from testifying at trial, this sort of testimony is common in 

a case like this and only works because it is in the witness’s interest to be honest. 

See JA 3374; see also United States v. Jones, 471 F.3d 535, 544 (4th Cir. 2006) 

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(prosecutor’s statement that “given the circumstances of a plea agreement . . . it is more in 

the subject’s interest to be honest than to be dishonest” was a permissible argument about 

credibility (quotation marks removed)). In our view, it is neither clear nor obvious that a 

reasonable juror would have believed the prosecutor was expressing an improper personal 

belief in the credibility of the witnesses.

The other two comments Wray challenges were made by a different prosecutor 

during the government’s rebuttal. Both were framed as responses to something a defense 

lawyer said during their own closing argument that the government sought to cast as 

endorsing a government witness’s testimony. In one such instance, the prosecutor 

“thank[ed]” Wray’s counsel for “vouch[ing] for the credibility of ” a government witness 

by describing the witness as “very believable” and “telling the truth” and stated that the 

government “agree[d]” the witness “was very believable.” JA 3498–99. The other example 

was when the prosecutor “thank[ed]” Smith’s attorney for “vouching for the truthfulness 

of ” a government witness by “salut[ing]” the witness “for coming here and telling his story 

and telling truth” and stated that “the Government would agree” the witness “came here 

and he told the truth.” JA 3509. 

Whether these comments “indicate[ ] a personal belief in the credibility or honesty 

of a witness” and “prejudicially affected the defendant” is a closer question. United States 

v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). The government concedes at least one 

statement was “stronger than it should have been” but maintains the statements were not 

misrepresentations and did not amount to improper vouching. Oral Arg. 41:14–25. We 

need not decide whether the prosecutor’s admittedly strong statements constituted

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improper vouching, much less clearly or obviously so. Instead, we hold that Wray fails to 

satisfy his burden to show that any error affected his substantial rights. 

Wray insists the jury would have had reason to question the credibility of the two 

witnesses for whom the prosecutor vouched because those witnesses were “testifying in 

exchange for compensation, protection, or sentencing consideration from the 

Government.” Defs. Consol. Br. 80. But that credibility argument alone cannot satisfy 

Wray’s burden of showing that—without the prosecutor’s comments—there is a 

reasonable probability the outcome of the proceeding would have been different. 

See United States v. Odum, 65 F.4th 714, 722 (4th Cir. 2023). Having “examine[d] the 

record as a whole,” we conclude Wray fails to satisfy the substantial rights requirement. 

United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).

3

B.

Wray’s jury instruction challenge also fails. We “review a district court’s decision 

to give a particular jury instruction for abuse of discretion . . . and review whether a jury 

instruction incorrectly stated the law de novo.” United States v. Miltier, 882 F.3d 81, 89 

(4th Cir. 2018). “This review requires us to consider the jury instruction in light of the 

whole record, to determine whether it adequately informed the jury of the controlling legal 

principles without misleading or confusing the jury to the prejudice of the objecting party.”

United States v. McCauley, 983 F.3d 690, 694 (4th Cir. 2020) (quotation marks removed).

3 Wray’s brief also takes passing shots at other comments he claims were “improper 

remarks . . . about defense counsel.” Defs. Consol. Br. 84–85. Because Wray fails to 

“develop [any] argument” about those remarks—none of which were objected to at trial—

any claim based on them is doubly forfeited. See Grayson O Co., 856 F.3d at 316.

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To understand Wray’s argument, it is necessary to explain a seemingly unrelated 

portion of the trial. During closing argument, Lewis’s counsel criticized the government 

for not playing a video showing an interview of a government witnesses or providing an 

FBI agent’s written summary of that interview. The district court called a sidebar and 

admonished counsel that “you can’t put the burden on the Government to present evidence 

favorable to your client.” JA 3430. The court immediately told the jury to disregard 

counsel’s argument “that certain documents should be put on the document camera.” 

JA 3435. After all defense closing arguments concluded, the court told the jury it “want[ed] 

to add to an earlier instruction I gave you, an oral instruction after a sidebar.” JA 3497. 

Referencing its earlier statement “that the Government cannot be held responsible for 

documents that the Government under the Federal Rules of Evidence [ ] couldn’t introduce 

[to] you,” the court added the same principle “also applies to some reference of videos that 

were taken by the Government.” Id.

Wray objected before the court’s second instruction, arguing it might leave the jury 

with the impression the government had additional inculpatory evidence it could have 

presented to the jury if not for the Federal Rules of Evidence. On appeal, Wray argues the 

first instruction was specific to Lewis’s counsel’s statement, but the second instruction was 

broader and legally erroneous because the court could not know that unspecified 

documents and videos were barred by the rules of evidence.

Wray’s argument misreads the context of the district court’s instruction. As noted 

above, the second argument began with a direct reference to the first. The court then 

clarified that its instruction about the documents mentioned in Lewis’s closing argument 

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also applied to any reference to videos. This second instruction is no broader than the first, 

which Wray does not argue was legally erroneous. Additionally, the district court carefully 

explained to counsel that the defendants could discuss a “lack of evidence” but could not 

“accuse[]” the government of having “access to evidence that could be beneficial to the 

defendant and blam[e] the Government for not producing that.” JA 3538. We see no abuse 

of discretion here.

V.

All four defendants challenge their sentences. We reject each argument.

A.

Huskey and Wray assert the district court erred in sentencing them to life 

imprisonment on the RICO conspiracy count. We disagree.

The statutory maximum sentence for a RICO offense is generally 20 years. 

See 18 U.S.C. § 1963(a). But the maximum penalty increases to life imprisonment if the 

RICO “violation is based on a racketeering activity for which the maximum penalty 

includes life imprisonment.” Id. Because murder is a form of racketeering activity, 

see § 1961(1), whose maximum sentence is life imprisonment, see § 1111(b), Huskey and 

Wray are subject to that increased maximum sentence if their RICO violations were “based 

on” the racketeering activity of murder.

The Sixth Amendment requires that “any fact”—here, that murder was one of the 

relevant racketeering acts—“that increases the penalty for a crime beyond the [otherwise] 

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Seeking to comply with 

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Apprendi, the indictment charged, and the jury was asked to determine, the presence or 

absence of various special sentencing factors. Special Sentencing Factor 1 alleged that all 

the defendants, “[a]s part of their agreement to conduct and participate in the conduct of 

the affairs of the UBN enterprise through a pattern of racketeering activity, . . . agreed that 

multiple acts of murder would be committed.” JA 218. Special Sentencing Factor 2 accused 

Wray of killing Christopher Odoms “willfully with malice and after premeditation and 

deliberation.” Id. And Special Sentencing Factor 6 charged Huskey with killing Donnell 

Murray “willfully with malice and after premeditation and deliberation.” JA 219–20. The 

jury answered Special Sentencing Factor 1—the multiple murders accusation—“yes” with 

respect to Wray but “no” with respect to Huskey. The jury answered “yes” to both Special 

Sentencing Factors 2 and 6, which accused Huskey and Wray of specific individual 

murders. The district court sentenced both Huskey and Wray to life imprisonment on the 

RICO conspiracy count.

Huskey and Wray challenge the district court’s ability to increase their maximum 

sentence based on the jury’s individual murder findings. Huskey argues the district court 

could not impose a life sentence because the jury declined to find Special Sentencing 

Factor 1 as to him, and, at least as to him, “both special sentencing factors [were] required 

to support a sentence above twenty years.” Defs. Consol. Br. 96. Wray similarly argues 

that Special Sentencing Factor 2 “could not be used to increase Wray’s statutory maximum, 

because it was not a finding that Wray’s RICO conspiracy conviction was based on the 

killing of Odoms.” Id. at 109.

We see no reversible error. The record is clear that everyone involved understood 

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the purpose of the special sentencing factors was to comply with Apprendi and assess the 

defendants’ eligibility for an enhanced sentence. But neither Huskey nor Wray objected to 

the indictment or the verdict form on the ground that Sentencing Factors 2 and 6 were 

insufficiently tied to the RICO conspiracy charge. Neither Huskey nor Wray made this

argument when the parties and the court discussed the language of possible jury 

instructions explaining the verdict form. And when the district court suggested the 

language of the verdict form itself was sufficient without a jury instruction, neither Huskey 

nor Wray objected. To the extent that Huskey and Wray now argue the special verdict form

should have been clearer or did not adequately describe what the jury needed to find, that 

claim is forfeited, and we conclude any error was not clear or obvious. 

The only remaining question is whether the evidence was sufficient to support a 

finding on Special Sentencing Factors 2 and 6—that Huskey murdered Donnell Murray 

and that Wray murdered Christopher Odoms—as part of their agreement to participate in 

the UBN enterprise. We have already concluded that it is. See Part II(A)(2), supra. For that 

reason, the district court did not err in concluding that the jury’s findings were sufficient 

to trigger an increased statutory maximum sentence under 18 U.S.C. § 1963(a).

Like the district court, we reject Huskey’s assertion that “the jury found the murder 

had nothing to do with the RICO conspiracy.” Defs. Consol. Br. 94. Because the jury had 

to first find the defendants guilty of the RICO conspiracy offense before it could find the 

sentencing factors, the verdict form made clear the question presented in the sentencing 

factors related to the RICO conspiracy offense. See JA 3570, 3577 (verdict form referring

to “the offense charged in Count One”). The jury thus found the RICO violation was “based 

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on” the racketeering activity of murder, and the district court in turn had authority to impose 

a life sentence. 18 U.S.C. § 1963(a).

Huskey and Wray raise two other arguments that need not detain us long. As for 

Huskey, we disagree with his assertion that the jury’s failure to find Special Sentencing 

Factor 1—that Huskey agreed “multiple acts of murder” would be committed as part of his 

agreement to participate in UBN affairs (JA 218)—prevented the district court from 

imposing a life sentence. Although it was necessary for the jury to find Huskey guilty on 

Count 1 before it could answer the questions posed by the sentencing factors, it was 

unnecessary for the jury to answer one sentencing factor before reaching the other or to 

answer the same way on both sentencing factors. This does not mean, as Huskey asserts, 

that “[S]entencing [F]actor 1 did not mean anything.” Defs. Consol. Br. 96. Rather, it 

means the indictment gave the government two options for triggering an enhanced 

sentence. (Indeed, it appears any other reading would deprive Sentencing Factors 2 and 6 

of independent legal effect.)

Wray’s argument that his life sentence is invalid because the evidence could not

support the jury’s finding on Special Sentencing Factor 1 fails twice over. For one thing, 

we have already concluded the evidence was sufficient to support that finding. See 

Part II(A)(4), supra. Second, we conclude that the evidence was sufficient to support the 

jury’s finding on Special Sentencing Factor 2—which found Wray’s agreement to 

participate in the RICO enterprise included his murder of Christopher Odoms—and that 

finding independently authorized the district court to impose a life sentence.

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B.

Moving from the Constitution to the advisory Federal Sentencing Guidelines, 

Huskey challenges the district court’s application of a three-level increase in his offense 

level on the ground that he “was a manager or supervisor” of “criminal activity [that] 

involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). 

Again, we see no reversible error.

At sentencing, Huskey objected to the role adjustment on the ground that he was not 

a five-star general in the UBN. The district court overruled the objection, explaining “[t]he 

evidence did show the defendant was a 5–Star General . . . and then became a Low. . . . So 

that objection is overruled.” JA 3615. That factual finding was not clearly erroneous. 

See United States v. Bartko, 728 F.3d 327, 345 (4th Cir. 2013) (district court’s factual 

findings at sentencing are reviewed for clear error). At trial, one former UBN member 

testified Huskey “was a 4–Star” general. JA 598. Another former UBN member testified 

that Huskey at one point “took over” another five-star general’s line (JA 932), and that the 

highest rank she recalled Huskey reaching was “Low [OG],” JA 927. Other evidence 

supported the witness’s testimony about Huskey’s rank. For example, Huskey had the 

authority to discipline another gang member, which he could only do according to the UBN 

hierarchy if he had other members “under” him. JA 667. 

Huskey also insists evidence of his rank could not support the enhancement because 

no witness “quantified what gang ranks meant in terms of people supervised.” Defs. 

Consol. Br. 96. We agree this Court’s precedent requires more than bare evidence of rank

to support the relevant enhancement. See United States v. Cameron, 573 F.3d 179, 185 (4th 

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35

Cir. 2009) (requiring evidence of “the actual exercise of control,” not just “the potential to 

exercise control over an operation”). But the trial evidence established Huskey ordered 

retaliation, disciplined other UBN members, and distributed “Inglewood” (documents such 

as codes, oaths, and pledges) to lower-ranking members. JA 600. Huskey thus “actively 

exercised some authority over other participants in the operation or actively managed its 

activities,” as required for the role adjustment. United States v. Slade, 631 F.3d 185, 190 

(4th Cir. 2011).

C.

Lewis asserts the district court erred in concluding it had to impose a 10-year 

consecutive sentence on Count 14, which accused him of using and carrying a firearm in 

connection with a crime of violence that resulted in the death of Malik Brown. Because 

Lewis did not make this argument before the district court, the plain-error standard applies.

See United States v. Olano, 507 U.S. 725, 732 (1993). We reject Lewis’s challenge because 

we conclude he cannot satisfy the third requirement for relief under that standard—i.e., 

showing that the error affected his substantial rights.

No doubt, there was an error here and that error is clear under current law. See 

Henderson v. United States, 568 U.S. 266, 279 (2013) (holding an error’s plainness is 

always assessed “at the time of appellate consideration” (quotation marks removed)). Long 

after Lewis was sentenced, the Supreme Court abrogated this Court’s earlier precedent and 

held that a sentence under the relevant statutory provision—18 U.S.C. § 924(j)—“can run 

either concurrently with or consecutively to another sentence.” Lora v. United States, 

143 S. Ct. 1713, 1715 (2023). Given Lora, the government concedes “the district court 

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plainly erred when it found that it was required to impose a mandatory consecutive 

sentence for Lewis’s § 924(j) offense.” U.S. Supp. Br. 3–4. 

But Lewis “has the burden of establishing each of the four requirements for plainerror relief,” Greer, 141 S. Ct. at 2097, and we conclude he cannot satisfy the substantial 

rights requirement. As Lewis admits, he is subject to two sentences of life imprisonment—

one on Count 1 and the other on Count 12. This Court has held a defendant cannot show 

an impact on substantial rights where a sentencing error involves a term of years sentence 

on one count and the defendant also faces a concurrent life sentence on another count. 

See United States v. Ellis, 326 F.3d 593, 600 (4th Cir. 2003). We see no reason—and Lewis 

identifies none—why the result should be different where the faultily imposed term of 

years sentence would be served only after the expiration of a life sentence. See United 

States v. Yousef, 327 F.3d 56, 164 (2d Cir. 2003) (reaching same result on plain-error 

review); see also Harris v. Warden, 425 F.3d 386, 387 (7th Cir. 2005) (observing that 

“ ‘life’ and ‘life plus x years’ come to the same thing”).

Though acknowledging “[t]he present futility of challenging the plus of a life-plus 

sentence,” Lewis argues “the additional term” the district court imposed on Count 14 

“could be considered in a future compassionate release motion, commutation request, or 

some other unforeseeable change in sentencing policy.” Lewis 2d Supp. Br. 2 n.1. Even 

outside the plain-error context, this Court has rejected similar arguments, describing them 

as “speculative and unrealistic.” United States v. Charles, 932 F.3d 153, 161 (4th Cir. 

2019). We do not rule out the possibility that some criminal defendants might be able to 

offer a non-speculative explanation about how a consecutive sentence tacked onto a life 

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sentence will affect their substantial rights because of the circumstances of their case. 

See Ruiz v. United States, 990 F.3d 1025, 1035–41 (7th Cir. 2021) (Wood, J., dissenting) 

(offering one such account). But Lewis falls far short of meeting that burden here.

D.

Finally, Smith challenges the reasonableness of his sentence, which we review for 

an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). We “first ensure 

that the district court committed no significant procedural error, such as” “failing to 

adequately explain the chosen sentence.” Id. We then “consider the substantive 

reasonableness of the sentence,” “tak[ing] into account the totality of the circumstances, 

including the extent of any variance from the Guidelines range” and “giv[ing] due 

deference to the district court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, 

justify the extent of the variance.” Id. Applying these standards, we conclude Smith’s 

sentence is procedurally and substantively reasonable. 

Smith’s presentence report classified him as a career offender and suggested a total 

sentence between 360 months and life. Smith faced a statutory mandatory minimum 

sentence of 60 months in prison for his Section 924(c) firearm offense. At the sentencing 

hearing, Smith requested a downward variance to 120–180 months, arguing for several 

mitigating factors. The district court sentenced Smith to 300 months in prison.

1.

In challenging procedural reasonableness, Smith mainly argues the district court 

failed to address his nonfrivolous reasons for requesting a downward departure. See United 

States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015) (a court must “address the party’s 

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arguments and explain why [it] has rejected those arguments” (quotation marks removed)). 

We disagree.

The district court thoughtfully addressed each of Smith’s arguments. Smith asserted

several mitigating factors, including that his troubled childhood made him vulnerable to 

the UBN; his activities in the UBN took place when he was young and were limited to lowlevel drug dealing; and he had since renounced allegiance to the gang.

The court acknowledged Smith’s youth at the time of his prior offenses but 

explained it was “troubling” that Smith was a “long-term gang member in the drug 

business.” JA 3706–07. The court considered Smith’s “history and characteristics” to be 

“neutral,” weighing both “in [his] favor” and “against [him].” JA 3707. It reasoned:

“[T]here comes a point where you’re no longer a victim, but you actually are a leader of 

the gang. You’ve reversed your roles, and that happened to you clearly when you became 

a 4 or 5 Star General.” JA 3708. The court also noted Smith was a “recidivist,” and both 

his early crimes and his more recent ones involved guns and drugs. JA 3706–09. The court

explained that possessing a gun with an obliterated serial number “shows [Smith’s] 

willfulness to commit these crimes and not get caught.” JA 3709. And although Smith said 

he had matured and made efforts to improve himself, the court decided Smith cannot “wash 

[his] hands of  ” “the crimes [he] committed while [he was] a gang member” and considered 

that “debt to society” as a “factor[]” in the length of Smith’s sentence. JA 3707. We 

conclude that, in addressing Smith’s arguments, the district court “set forth enough to 

satisfy” us that it had “a reasoned basis for exercising [its] own legal decisionmaking 

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

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2.

We also reject Smith’s substantive reasonableness challenge. 

First, Smith suggests he would have received a lower sentence if he pleaded guilty 

rather than going to trial. But that is true of many criminal defendants, see U.S.S.G. 

§ 3E1.1, cmt. n.3, and because the district court never mentioned Smith’s decision to go to 

trial rather than pleading guilty, there is no indication the sentencing court “[p]unish[ed] 

Smith more harshly based upon [that] decision.” Defs. Consol. Br. 106. 

Next, Smith argues it was unfair to “dramatically increase[]” his sentence based on 

crimes committed when he was 17 years old. Defs. Consol. Br. 107. As already discussed, 

however, the court considered each of Smith’s mitigation arguments, including his youth 

at the time of his previous convictions.

Finally, Smith says it was substantively unreasonable to give him a longer sentence 

than a higher-ranking UBN member received at a related trial. But the district court 

expressly took the other UBN member’s sentence into account, saying that sentence was 

“one big reason” for applying a downward variance in Smith’s case. JA 3709–11 (“The 

Court is concerned about just punishment . . . . [Y]ou shouldn’t be so disproportionately 

punished[.]”). The court concluded, however, that Smith’s requested 120–180-month

variance was “substantially too low for the repeat criminal conduct, for the position in the 

Bloods,” and for “the fact that . . . [Smith was] a very serious drug dealer” who

“dangerous[ly] combin[ed] drugs and guns” and was convicted of multiple individual, 

serious crimes. JA 3710–11. We thus defer to the district court’s “reasoned and reasonable 

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decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 552 U.S. at 

59–60. 

* * *

Having rejected each defendant’s challenges to their convictions and sentences, the 

judgments of the district court are

AFFIRMED.

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