UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4284

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra,

Defendant – Appellant.

No. 11-4300

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNNY ELIAS GONZALEZ, a/k/a Solo,

Defendant – Appellant.

No. 11-4319

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
2

ELVIN PASTOR FERNANDEZ-GRADIS, a/k/a Tigre, a/k/a Juan 

Alberto Irias, a/k/a Freddy, a/k/a Flaco,

Defendant – Appellant.

No. 11-4320

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JULIO CESAR ROSALES LOPEZ, a/k/a Stiler,

Defendant – Appellant.

No. 11-4418

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS ROBERTO FIGUEROA-PINEDA, a/k/a Drogo,

Defendant – Appellant.

No. 11-4458

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
3

JUAN GILBERTO VILLALOBOS, a/k/a Smokey, a/k/a Smoke,

Defendant – Appellant.

Appeals from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad,

Jr., Chief District Judge. (3:08-cr-00134-RJC-23; 3:08-cr00134-RJC-DSC-18; 3:08-cr-00134-RJC-DSC-6; 3:08-cr-00134-RJCDSC-4; 3:08-cr-00134-RJC-DSC-14; 3:08-cr-00134-RJC-DSC-5)

Argued: September 18, 2012 Decided: May 14, 2013

Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit 

Judges.

No. 11-4284 affirmed in part, reversed in part, and remanded; 

No. 11-4300, No. 11-4319, No. 11-4320, No. 11-4418, and No. 11-

4458 affirmed by unpublished per curiam opinion. Chief Judge 

Traxler wrote a separate opinion concurring in part and 

dissenting in part.

ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, 

LLP, Greenville, South Carolina; David Quentin Burgess, LAW 

OFFICE OF DAVID Q. BURGESS, Charlotte, North Carolina; John 

Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North 

Carolina; Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF 

CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellants. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 

North Carolina, for Appellee. ON BRIEF: Harold Bender, LAW 

OFFICE OF HAROLD BENDER, Southport, North Carolina, for 

Appellant Gonzales; Richard E. Beam, Jr., HUBBARD & BEAM, 

Gastonia, North Carolina, for Appellant Lopez. Anne M. 

Tompkins, United States Attorney, Charlotte, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
4

PER CURIAM:

I.

La Mara Salvatrucha (“MS-13”) is a worldwide street 

gang with Los Angeles origins. It was formed in the 1980’s by 

refugees fleeing to the United States from war-torn Central 

American countries. While MS-13 was originally formed for 

protection of its members, its current objective is to amass 

wealth, power, and territory.

There are six Appellants in this matter, all members 

of MS-13: (1) Santos Anibal Caballero Fernandez (“Caballero 

Fernandez”); (2) Johnny Elias Gonzales (“Gonzales”); (3) Elvin 

Pastor Fernandez-Gradis (“Fernandez-Gradis”); (4) Julio Cesar 

Rosales Lopez (“Lopez”); (5) Carlos Roberto Figueroa-Pineda 

(“Figueroa-Pineda”); and (6) Juan Gilberto Villalobos 

(“Villalobos”). In June, 2008, Appellants, along with 20 other 

MS-13 members, were tried and convicted of various crimes 

related to their participation in the gang in the United States. 

The convictions relevant to this appeal are: (1) each 

Appellant’s conviction for conspiracy to commit racketeering; 

(2) Appellant Caballero Fernandez’s conviction as an accessory 

after-the-fact to the murder of Ulysses Mayo; and (3) Appellant 

Figueroa-Pineda’s two convictions of possession of marijuana 

with intent to distribute and conviction of possession of a 
5

firearm in furtherance of a drug trafficking crime.1 Appellant 

Villalobos also appeals the district court’s decision to apply 

an obstruction of justice enhancement to his sentence.

Appellants collectively challenge their convictions on 

several fronts. First, Appellants argue the evidence was 

insufficient to establish that they each entered into an 

agreement to commit two predicate acts of racketeering as 

required for a conviction of conspiracy to commit racketeering. 

Second, Appellants argue that the district court failed to adopt 

adequate safeguards to minimize the prejudice of its use of an 

anonymous jury. Third, Appellants argue that the district court 

erred in failing to give a “multiple conspiracy” instruction to 

the jury. Finally, Appellants argue that, even if the first 

three errors are individually harmless, the combined effect of 

those errors triggers the cumulative error doctrine, compelling 

reversal.

As noted, several Appellants also individually 

challenge their respective convictions and sentences. 

Specifically, Appellant Caballero Fernandez challenges his 

conviction for accessory-after-the-fact to murder, arguing that 

the evidence does not establish beyond a reasonable doubt that 

 1 For ease of organization, the facts related to each of 

these convictions are detailed in the applicable sections below. 
6

he knew the victim was dead or dying. Appellant Figueroa-Pineda 

challenges his convictions for possession with intent to 

distribute and for possession of a firearm in furtherance of a 

drug trafficking offense, arguing that the evidence established 

neither intent to distribute nor use of a weapon “in 

furtherance” of drug trafficking offenses. Finally, Appellant 

Villalobos argues the evidence was insufficient to establish 

that he obstructed justice.

We affirm as to each issue on appeal, with the 

exception of Appellant Caballero Fernandez’s conviction for 

accessory-after-the-fact, which we reverse. We also remand 

Appellant Caballero Fernandez’s case for resentencing. 

II. 

A. 

Conspiracy to Commit Racketeering

1.

Each Appellant was convicted of engaging in a 

conspiracy to commit racketeering beginning at least in or about 

2003. Following these convictions, each Appellant filed a 

motion for a judgment of acquittal. These motions were denied 

and this appeal followed.

2.

We review the denial of a motion for judgment of 

acquittal de novo. United States v. Penniegraft, 641 F.3d 566, 
7

571 (4th Cir. 2011). Where a defendant challenges the 

sufficiency of the evidence to support a jury’s guilty verdict, 

we view all evidence and draw all inferences in favor of the 

government. Id. We will sustain the verdict as long as any 

rational fact finder would find the essential elements beyond a 

reasonable doubt. United States v. Higgs, 353 F.3d 281, 313 

(4th Cir. 2003).

3.

The conspiracy provision to the Racketeering 

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 

§ 1962(d), makes it a crime to conspire to violate any one of 

RICO’s three substantive provisions.2 Here, Appellants were 

convicted of conspiracy to violate § 1962(c), which contains 

three elements: (1) the conduct, (2) of an enterprise, (3) 

through a pattern of racketeering.3 RICO defines an “enterprise” 

to include “any individual, partnership, corporation, 

association, or other legal entity, and any union or group of 

 2 18 U.S.C. § 1962(d) provides as follows: “It shall be 

unlawful for any person to conspire to violate any of the 

provisions of subsection (a), (b), or (c) of this section.”

 

3 18 U.S.C. § 1962(c) provides as follows: “It shall be 

unlawful for any person employed by or associated with any 

enterprise engaged in, or the activities of which affect, 

interstate or foreign commerce, to conduct or participate, 

directly or indirectly, in the conduct of such enterprise's 

affairs through a pattern of racketeering activity or collection 

of unlawful debt.”
8

individuals associated in fact although not a legal entity.” 18 

U.S.C. § 1961(4). A “pattern of racketeering” requires a

defendant to commit at least two predicate acts of “racketeering 

activity.” 18 U.S.C. § 1961(5). “Racketeering activity” 

includes, inter alia, any act or threat involving murder, 

robbery, extortion, or dealing in a controlled substance 

chargeable under state law and punishable by imprisonment for 

more than one year. 18 U.S.C. § 1961(1). 

Generally, to be convicted of “conspiracy” to commit a 

federal crime, a defendant must commit an overt act in 

furtherance of the object of the conspiracy. 18 U.S.C. § 371. 

There is no such requirement under RICO. United States v. 

Salinas, 522 U.S. 52, 63 (1997) (“The RICO conspiracy provision, 

then, is even more comprehensive than the general conspiracy 

offense in § 371.”). A defendant is guilty of conspiracy under 

RICO if he “‘knowingly and willfully agreed that he or some 

other member of the conspiracy would commit at least two 

racketeering acts.’” United States v. Mouzone, 687 F.3d 207, 

218 (4th Cir. 2012) (quoting United States v. Wilson, 605 F.3d 

985, 1018-19 (D.C. Cir. 2010)). 

Naturally, direct evidence of such an agreement is 

often scarce. United States v. Burgos, 94 F.3d 849, 857 (4th 

Cir. 1996) (“By its very nature, a conspiracy is clandestine and 

covert, thereby frequently resulting in little direct evidence 
9

of such an agreement.”). As such, conspiracy is typically 

proven by circumstantial evidence. Id. at 857-58.

Appellants argue that the evidence was insufficient to 

establish an agreement to commit two predicate acts. This 

argument lacks merit. There is ample evidence that each 

Appellant was a member of MS-13 and agreed to commit at least 

two predicate acts. 

Specifically, Appellant Caballero Fernandez attended a 

February 29, 2008 MS-13 meeting. Moreover, the evidence 

indicates that Appellant Caballero Fernandez was a leader of MS13, as the February 29, 2008 meeting he attended was only open 

to “runners” or “the older people . . . that have more of a say 

so in the clique.” J.A. 1339.4 According to an informant who 

testified at trial, those present at the meeting discussed 

taxing other drug dealers, purchasing guns, and organizing the 

gang. And, Appellant Caballero Fernandez was photographed 

displaying gang signs at the February 29, 2008 meeting.

Additionally, Appellant Caballero Fernandez, an 

illegal alien, illegally possessed a firearm on October 29, 

2006. As a result, he was convicted of being an illegal alien 

 4 Citations to the joint appendix (“J.A.”) refer to the 

joint appendix filed by the parties in this case.
10

in possession of a firearm in violation of 18 U.S.C. § 922(g)(5) 

in the proceedings below.

Appellant Gonzales participated in an attempt to rob a 

Virginia jewelry store with other MS-13 members. Additionally, 

he facilitated the purchase of an SKS rifle for a fellow gang 

member. He was also present at a Charlotte Mall when gang 

members had an armed confrontation with a rival gang.

Appellant Fernandez-Gradis murdered Ulysses Mayo. 

Appellant Fernandez-Gradis was also present at the February 29,

2008 meeting discussed above. Moreover, he was a leader of MS13, as evinced by the fact that he approved a name-change of one 

of the MS-13 cliques.5

Appellant Julio Lopez was also a leader of MS-13 in 

Charlotte. He came to Charlotte at the direction of Manuel 

Ayala, an El Salvador-based MS-13 leader. He played a large 

role in several MS-13 meetings and carried a firearm to at least 

one of them. He was also present at a Mexican restaurant in 

Greensboro, North Carolina where Alejandro Umana, another MS-13 

member, shot and killed two innocent civilians for verbally 

 5 A clique is a local subpart of MS-13, usually affiliated 

with a particular geographic area or landmark. As the 

government’s expert testified at trial, each clique is 

integrated into the global MS-13 operation.
11

disrespecting MS-13.6 Appellant Lopez left the restaurant with 

Umana and assisted in his escape. Finally, Appellant Lopez was 

a “middle man” in Appellant Villalobos’s drug operation. 

Appellant Figueroa-Pineda attended a meeting where MS13 members discussed killing the witnesses to the Greensboro 

restaurant murder. He was also present at the aforementioned 

meetings in February and March of 2008 where he was photographed 

flashing MS-13 gang signs. Appellant Figueroa-Pineda also sold 

marijuana from his apartment.

Appellant Villalobos was a senior member of MS-13. He 

controlled nightclubs where he sold drugs and taxed others who 

did the same. He also supplied guns to other MS-13 members for 

use when they traveled to meetings. In January 2008, he hosted 

an MS-13 meeting in his garage. He was also present at the 

February 2008 meeting discussed above. 

Appellants also argue that the government’s reliance 

on evidence of attendance at MS-13 meetings to support the RICO 

convictions is improper as it is evidence of “mere association” 

and, therefore, is not sufficient to establish an agreement to 

commit a predicate act. Mouzone, 687 F.3d at 218 (“We caution 

that the RICO conspiracy statute does not ‘criminalize mere 

 6 Umana was tried and convicted along with Appellants. 

However, his case is not currently before us on appeal.
12

association with an enterprise.’”) (quoting Brouwer v. 

Raffensperger, Hughes & Co., 199 F.3d 961, 965 (7th Cir. 2000)). 

This argument fails inasmuch as the evidence established far 

more than mere association. As noted above, the evidence was 

that at these meetings, members of MS-13 would discuss their 

plans to commit various acts of racketeering including murder, 

distribution of illegal drugs, and extortion. Moreover, the 

evidence established that many Appellants were leaders, as 

opposed to mere associates, of MS-13.

B.

Anonymous Jury

1.

On a motion from the government, the district court 

empanelled an anonymous jury. During voir dire, the district 

court instructed the members of the jury pool that all of the 

security measures which had been taken (mainly the presence of 

additional security guards, including snipers, at the 

courthouse) were standard in every federal case. The district 

court did not otherwise specifically comment on juror anonymity. 

The district court did, however, ask some demographic questions 

of the jury pool (i.e. what type of work they did, approximately 

where they lived, etc.). Additionally, at the conclusion of 

voir dire, the district court asked additional questions 

suggested by defense counsel.
13

2.

Under 28 U.S.C. § 1863(b)(7), a district court is 

empowered to empanel an anonymous jury whenever “the interests 

of justice so require.”7 Recently, in United States v. Dinkins, 

691 F.3d 358 (4th Cir. 2012), we held that an anonymous jury is 

appropriate where, “there is strong reason to conclude that the 

jury needs protection from interference or harm, or that the 

integrity of the jury’s function will be compromised if the jury 

does not remain anonymous.” Id. at 372. If an anonymous jury 

is warranted, a district court must adopt “reasonable 

safeguards” to minimize any resulting prejudice. Id.

3.

Appellants properly concede that an anonymous jury was 

appropriate here. Thus, the only issue is whether the district 

court adopted adequate safeguards. Appellants contend the 

district court failed to adopt adequate safeguards by not 

 7 28 U.S.C. § 1863(b)(7) reads as follows: 

Among other things, [the plan for random jury 

selection] shall fix the time when the names drawn 

from the qualified jury wheel shall be disclosed to 

parties and to the public. If the plan permits these 

names to be made public, it may nevertheless permit 

the chief judge of the district court, or such other 

district court judge as the plan may provide, to keep 

these names confidential in any case where the 

interests of justice so require.
14

providing an explicit, non-prejudicial explanation for juror 

anonymity.

In making this argument, Appellants cite cases from 

our sister circuits in which various explanations for juror 

anonymity were found to be sufficient.8 However, none of these 

cases indicate that an explicit explanation for juror anonymity 

is a necessary safeguard. Accordingly, they are of limited 

value here.

Moreover, Dinkins indicates that the absence of any

specific explanation for juror anonymity minimizes any potential 

prejudice. The district court in Dinkins did not inform the 

jury that they were anonymous. Likewise, nothing in the juror 

questionnaire in Dinkins implied anonymity. In that 

circumstance, we held, “the district court’s communications to 

the venire members, and ultimately the jurors, properly followed 

‘the generally accepted practice for minimizing prejudice which 

is to downplay (not accentuate) the significance of the juror 

 8 See United States v. Lawson, 535 F.3d 434, 439-42 (6th 

Cir. 2008) (district judge told the jury anonymity was required 

by the unusually large number of prospective jurors and 

defendants and that anonymity would help ensure a fair trial); 

United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir. 

1992) (district judge told jury anonymity was designed to avoid 

any contact between the jurors and the parties to ensure that 

both sides received a fair and impartial trial); United States 

v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir. 1985) (district judge 

told jurors their anonymity was designed to ward off members of 

the press and to protect their privacy).
15

anonymity procedure.’” Dinkins, 691 F.3d at 378-79 (quoting

United States v. Ochoa-Vasquez, 428 F.3d 1015, 1037 (11th Cir. 

2005)). 

Here, as in Dinkins, the district court properly 

downplayed juror anonymity. As noted, the court simply advised 

the jury pool that the security measures which had been taken 

were “standard in every case” without specifically mentioning 

anonymity. J.A. 404. Moreover, aside from juror anonymity, 

voir dire was conducted in the usual way. Based on this, the 

government correctly argues that the jury likely did not even 

realize that anything unusual had occurred. Accordingly, the 

safeguards adopted by the district court were sufficient.

C. 

Multiple Conspiracy Instruction

1.

Appellants allege the district court erred by failing 

to instruct the jury that the government’s evidence related to 

multiple conspiracies rather than a single conspiracy. Such an 

instruction is warranted when “the proof of multiple 

conspiracies was likely to have confused the jury into imputing 

guilt to [the defendant] as a member of one conspiracy because 

of the illegal activity of members of the other conspiracy.” 

United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001).
16

Such an instruction was not requested below. However, 

on appeal, Appellants allege that the failure to give such an 

instruction was in error because, in the absence of that 

instruction, the evidence established that the Appellants were 

members of several small conspiracies as opposed to one large 

one. Accordingly, Appellants contend this likely confused the 

jury and caused them to wrongfully impute guilt from members of 

one conspiracy to members of another.

2.

Because Appellants failed to request such an 

instruction below, we review for plain error. United States v. 

Jeffers, 570 F.3d 557, 567 (4th Cir. 2009). Under “plain error” 

review, a court may not correct an alleged error unless the 

following three conditions are met: (1) there was an error, (2) 

the error is plain, and (3) the error affected a defendant’s 

substantial rights. United States v. Olano, 507 U.S. 725, 732 

(1993); see also Fed. R. Crim. P. 52(b). If these three 

conditions are met, an appellate court may correct the error. 

Olano, 507 U.S. at 732. While this is a discretionary matter, 

the Supreme Court has held that an appellate court should only 

exercise this discretion where the error “seriously affect[s] 

the fairness, integrity, or public reputation of the judicial 

proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 

15 (1985)). The appellant bears the burden of persuasion to 
17

show that this occurred. United States v. Nicolaou, 180 F.3d 

565, 570 (4th Cir. 1999).

3.

In making this argument, Appellants point to the 

following facts: (1) there were a number of MS-13 cliques in 

Charlotte and other cities throughout the region; (2) MS-13 

members from the various cliques did not know all of the other 

members because they operated on opposite sides of town; and (3) 

efforts to integrate the various area cliques had failed. 

Appellants ignore significant evidence to the 

contrary. Specifically, MS-13 has a global mission: to amass 

power and control territory. In furtherance of this mission, 

MS-13 cliques share weapons and information and members are able 

to move freely among different cliques. Moreover, as noted 

above, MS-13’s organizational structure resembles a franchisorfranchisee system. This mode of organization strongly indicates 

that Appellants were all members of the same conspiracy. 

Accordingly, the district court did not err, much less plainly 

err, by not giving a multiple conspiracy instruction to the 

jury.

D.

Cumulative Error

Appellants argue that, even if the first three alleged 

errors (i.e. sufficiency of the evidence for the conspiracy 
18

convictions, the anonymous jury, and the absence of a multiple 

conspiracy instruction) are individually harmless, the 

cumulative effects of these errors compel a new trial based upon 

the “cumulative error doctrine.” We will order a new trial 

based on the cumulative error doctrine where two or more 

individually harmless errors have the combined effect of 

impacting a defendant’s substantial rights. United States v. 

Martinez, 277 F.3d 517, 532 (4th Cir. 2002). However, the 

cumulative error doctrine is inapplicable here, as we find no 

error in the district court’s resolution of any of these three 

issues. Accordingly, Appellants’ cumulative error argument is 

without merit.

E.

Accessory After the Fact

1.

Appellant Caballero Fernandez was convicted as an

accessory-after-the-fact to the murder of Ulysses Mayo. On 

April 12, 2008, Appellants Caballero Fernandez and FernandezGradis were at a party at a neighborhood home. Later that 

night, Ruben Ibarra arrived to the party. Ibarra was 

accompanied by his cousin, Ulysses Mayo. Both men were wearing 

red clothing, the color of a rival gang. This angered 

Appellants Fernandez-Gradis and Caballero Fernandez. As Ibarra 

and Mayo were leaving, Appellants Fernandez-Gradis and Caballero 
19

Fernandez followed them to their car. An eyewitness testified 

that it was “kind of dark” at this time. J.A. 2143. In fact, 

the record indicates that the murder occurred at approximately 

11:00 pm. 

When Appellants Caballero Fernandez and FernandezGradis arrived at the car, Mayo was sitting in the passenger 

seat with the window up. Ibarra was in the driver’s seat with 

the window down. The car’s engine was running. With his 

firearm drawn, Appellant Fernandez-Gradis knocked on the 

passenger-side window. Mayo tried to roll the window down but 

the window was stuck. Appellant Fernandez-Gradis then shot 

through the window. Appellant Caballero Fernandez was standing 

a few feet from Appellant Fernandez-Gradis at this time. A 

witness, standing on the driver’s side, testified that Mayo 

gasped and moaned when the shots were fired.

As soon as the shots were fired, Ibarra drove off. 

Appellant Caballero Fernandez then got in his car, instructing 

Appellant Fernandez-Gradis to get in with him. The two then 

attempted to follow Ibarra and Mayo. Ultimately, Ibarra escaped 

and Mayo was taken to a local hospital. Mayo was pronounced 

dead later that night. Appellant Caballero Fernandez remained 

with Appellant Fernandez-Gradis for the rest of the night. A 

cooperating witness testified Appellant Caballero Fernandez was 

distracted and did not speak to anyone. A month later, police 
20

officers stopped a car with six people inside, including 

Appellant Caballero Fernandez. Appellant Caballero Fernandez 

was sitting in the middle of the back seat. While searching the 

vehicle, the officers found several handguns, including the gun 

that Appellant Fernandez-Gradis used to kill Ulysses Mayo. On 

these facts, Appellant Caballero Fernandez was convicted as an 

accessory-after-the-fact for the murder of Ulysses Mayo.9

 

Following his conviction, Appellant Caballero Fernandez filed a 

motion for judgment of acquittal notwithstanding the verdict. 

The district court denied this motion and Appellant Caballero 

Fernandez appealed. 

2.

The denial of a motion for judgment of acquittal is 

reviewed de novo. Penniegraft, 641 F.3d at 571; Hickman, 626 

F.3d at 762. When the challenge is based on sufficiency of the 

evidence, we view the evidence and all reasonable inferences in 

favor of the government. Penniegraft, 641 F.3d at 571. We will 

sustain the verdict if any rational fact finder would find the 

 9 The controlling statute is 18 U.S.C. § 3. This statute 

reads as follows: “Whoever, knowing that an offense against the 

United States has been committed, receives, relieves, comforts 

or assists the offender in order to hinder or prevent his 

apprehension, trial or punishment, is an accessory after the 

fact.” 
21

essential elements beyond a reasonable doubt. Higgs, 353 F.3d 

at 313.

3.

On appeal, Appellant Caballero Fernandez argues the 

evidence was insufficient to sustain his conviction. His 

argument rests on United States v. McCoy, 721 F.2d 473 (4th Cir. 

1983). There, we held that, in order to be convicted as an 

accessory-after-the-fact to murder, the accessory must have 

“knowledge that [the decedent] was dead or dying at the time of 

his decision [to provide assistance].” McCoy, 721 F.2d at 475. 

Appellant Caballero Fernandez argues there is no evidence that 

he knew that Mayo was dead or dying at any point while he was 

allegedly assisting Appellant Fernandez-Gradis. Specifically, 

Appellant Caballero Fernandez argues that, because he drove away 

quickly after the shots were fired, he never had the chance to 

observe whether Mayo was dead or dying, or if he had even been 

shot. Appellant Caballero Fernandez further argues that there 

is no evidence that he learned of Mayo’s death at any point 

prior to his arrest. 

The government argues the facts were sufficient to 

permit a reasonable jury to infer the requisite knowledge. 

However, we are of the view that, even construing the evidence 

in a light most favorable to the government, no rational factfinder could have found that Appellant Caballero Fernandez knew
22

that Ibarra was dead or dying during the relevant time period. 

This is true for several reasons. 

First, Appellant Caballero Fernandez is correct that, 

because he sped away quickly after the shots were fired, he did 

not have time to observe whether Mayo was dead or dying. At 

most, the fact that Appellant Caballero Fernandez was standing 

next to the car when shots were fired and may have heard the 

victim moan permits an inference that he knew that Mayo had been 

shot. It does not follow that Appellant Caballero Fernandez

knew that Mayo was dead or dying. As Appellant Caballero 

Fernandez properly emphasizes, not all gunshots are fatal. 

Moreover, the fact that (1) the shooting occurred late at night; 

(2) the passenger side window was up; and (3) Appellant 

Caballero Fernandez was standing a few feet away at the time of 

the shooting further undercuts the government’s argument that 

Appellant Caballero Fernandez knew that Mayo was dead or dying. 

Second, the government’s argument that Appellant 

Caballero Fernandez was “pensive” in the wake of the shooting is 

insufficient to establish knowledge. Appellee’s Br. 14. Such 

behavior could logically have been reflective of the fact that 

shots were fired. Whatever the reason, the mere fact that 

Appellant Caballero Fernandez was pensive does not establish, 

beyond a reasonable doubt, that he knew that Mayo was dead or 

dying. 
23

Finally, the fact that Appellant Caballero Fernandez 

was a passenger in a car where police found the murder weapon a 

month after Mayo was killed is not sufficient to support his 

conviction. There is no indication that Appellant Caballero 

Fernandez owned the car in which the gun was found nor is there 

any evidence that the weapon was actually in his possession. 

Indeed, there were five other people in the car. Even after 

drawing all reasonable inferences in favor of the government, we 

find the evidence insufficient to sustain Caballero Fernandez’s 

conviction for accessory after the fact to murder.10

F.

Possession with Intent to Distribute

1.

Appellant Figueroa-Pineda was convicted of two counts 

of possession of marijuana with intent to distribute.11 The 

facts supporting the first count are as follows: while in 

pursuit of a fleeing armed robber, police officers went to 

Appellant Figueroa-Pineda’s apartment on January 22, 2008. 

 10 Appellant Caballero Fernandez also challenges the 

reasonableness of his sentence. Because we are reversing his 

conviction for accessory-after-the-fact and remanding for 

resentencing, we need not consider his sentencing arguments. 

11 Possession with intent to distribute is criminalized by 

21 U.S.C. § 841(a)(1), which provides: “Except as authorized by 

this subchapter, it shall be unlawful for any person knowingly 

or intentionally to manufacture, distribute, or dispense, or 

possess with intent to manufacture, distribute, or dispense, a 

controlled substance.”
24

After discovering that the armed robber had departed, the 

officers obtained Appellant Figueroa-Pineda’s consent to search 

the apartment.

During that search, police officers uncovered 262 

grams of marijuana. They also found baggies and a digital 

scale. At trial, Officer Chuck Hastings, one of the lead 

federal agents on this case, testified that 262 grams was “a 

dealer amount” of marijuana. J.A. 1886. Officer Hastings also 

testified that he believed Appellant Figueroa-Pineda intended to 

sell this marijuana. Based on this evidence, the jury found 

Appellant Figueroa-Pineda guilty of possession with intent to 

distribute. 

Appellant Figueroa-Pineda’s second conviction arose 

after he was arrested in his home on June 24, 2008. In the 

incident search, officers found 45 grams of marijuana and 

digital scales. The scales were open with marijuana residue on 

top. Based on this evidence, the jury convicted Appellant 

Figueroa-Pineda of a second count of possession with intent to 

distribute.

Following these convictions, Appellant Figueroa-Pineda 

filed a motion for judgment of acquittal as to both convictions. 

These motions were denied and Appellant Figueroa-Pineda 

appealed.
25

2. 

The denial of a motion for judgment of acquittal is 

reviewed de novo. Hickman, 626 F.3d at 762. When the challenge 

is based on sufficiency of the evidence, we view the evidence 

and all reasonable inferences in favor of the government. 

Penniegraft, 641 F.3d at 571. We will sustain the verdict if 

any rational fact finder would find the essential elements 

beyond a reasonable doubt. Higgs, 353 F.3d at 313.

3.

Appellant Figueroa-Pineda argues that the evidence is 

insufficient to show that he intended to distribute the drugs on 

either count. In so arguing, he relies exclusively on United 

States v. Fountain, 993 F.2d 1136 (4th Cir. 1993). In Fountain, 

the defendant was caught in an area known for drug trafficking 

with zip-tied baggies and 2.4 grams of marijuana. The district 

court found this to be sufficient evidence of intent to 

distribute. Id. at 1139. We reversed, holding that this 

evidence merely created a “suspicion” of intent to distribute. 

Id.

Fountain, however, is distinguishable. As to the 

first count, Fountain does not apply because, in that case, 

Fountain possessed only 2.4 grams of marijuana. The 

government’s evidence on the first count of conviction showed 

that Appellant Figueroa-Pineda possessed 262 grams of marijuana. 
26

According to Officer Hastings, 262 grams is a “dealer amount” of 

marijuana. While there is no bright-line rule as to what 

constitutes a “dealer amount,” the significant disparity between 

the amount here and the amount in Fountain is impossible to 

ignore. 

Second, in Fountain, the only evidence proffered to 

establish intent to distribute was: (a) the fact that the drugs 

were in baggies and (b) the fact that Fountain was in a drugtrafficking area. Fountain, 993 F.2d at 1137-39. Here, 

Appellant Figueroa-Pineda was also found with digital scales. 

We have held that possession of scales is probative of intent to 

distribute. United States v. Harris, 31 F.3d 153, 157 (4th Cir. 

1994).

As to the second count, the evidence presents a 

slightly closer call, as it is perhaps plausible that a heavy 

marijuana user would purchase 45 grams (less than 3 ounces) for 

personal consumption. However, our task is not to determine

whether the jury could have reasonably reached the opposite 

conclusion. Rather, the relevant question is whether there is 

sufficient evidence to support the jury’s conclusion. There is. 

Specifically, during the June 24, 2008 search of 

Appellant Figueroa-Pineda’s apartment, police officers found 

digital scales with marijuana residue on top of them. As noted 

above, this is probative of intent to distribute. Harris, 31 
27

F.3d at 157. Moreover, at the time of the second search, 

Appellant Figueroa-Pineda had been caught with 262 grams of 

marijuana within the past six months. These facts provide 

sufficient support for the jury’s finding. 

G.

Firearm Possession

1.

Appellant Figueroa-Pineda was also convicted of 

possession of a firearm in furtherance of a drug-trafficking 

offense. This conviction arose from the initial January 2008 

search of Appellant Figueroa-Pineda’s apartment mentioned above. 

During the search, police officers asked Appellant FigueroaPineda whether there were any weapons in the house. In 

response, Appellant Figueroa-Pineda directed them to a .22 

caliber revolver. The weapon was hidden under a rug a few feet 

from the drugs. Based on this, Appellant Figueroa-Pineda was 

convicted of possession of a firearm in furtherance of a drug 

trafficking offense under 18 U.S.C. § 924(c). Appellant 

Figueroa-Pineda challenged this conviction by filing a motion 

for judgment of acquittal, which was denied. 

2.

Again, the denial of a motion for judgment of 

acquittal is reviewed de novo. Hickman, 626 F.3d at 762. When 

the challenge is based on sufficiency of the evidence, we view 
28

the evidence and all reasonable inferences in favor of the 

government. Penniegraft, 641 F.3d at 571. We will sustain the 

verdict if any rational fact finder would find the essential

facts beyond a reasonable doubt. Higgs, 353 F.3d at 313.

3.

On appeal, Appellant Figueroa-Pineda argues that he 

did not possess the weapon in furtherance of his drugtrafficking offenses. In United States v. Perry, 560 F.3d 246 

(4th Cir. 2009), we articulated several non-exclusive factors to 

aid the determination of whether a firearm was possessed in 

furtherance of drug trafficking activity: (1) the type of drug 

activity that was being conducted; (2) the accessibility of the 

weapon; (3) the type of weapon; (4) whether the weapon was 

stolen; (5) whether the weapon was possessed illegally; (6) 

whether the weapon was loaded; (7) the proximity of the drugs or 

drug profits to the weapon; and (8) the time and circumstances 

under which the weapon was found. See id. at 254.

As applied in this case, these factors support a 

finding that Appellant Figueroa-Pineda possessed the gun in 

furtherance of his drug trafficking offenses. Specifically, the 

gun was located a few feet from a large quantity of marijuana 

(Factor #7). Additionally, the gun was a .22 caliber revolver 

and, therefore, was easily hidden in an accessible place. 

(Factors #2 and #3). Finally, Detective Hastings testified 
29

that, because drug dealers commonly get robbed, they often carry 

weapons to protect themselves. Accordingly, a reasonable jury 

could conclude that Appellant Figueroa-Pineda possessed the 

firearm in furtherance of his drug trafficking activities.12

H.

Obstruction of Justice

1.

When sentencing Appellant Villalobos, the district 

court applied an obstruction of justice enhancement as defined 

in § 3C1.1 of the United States Sentencing Guidelines 

(“U.S.S.G.”). This section provides:

If (1) the defendant willfully obstructed or impeded, 

or attempted to obstruct or impede, the administration 

of justice with respect to the investigation, 

prosecution, or sentencing of the instant offense of 

conviction, and (2) the obstructive conduct related to 

(A) the defendant's offense of conviction and any 

relevant conduct; or (B) a closely related offense, 

increase the offense level by 2 levels.

U.S.S.G. § 3C1.1 (2012). Additionally, Application Note 4(A) to 

§ 3C1.1 provides that this enhancement should apply where a 

defendant is “threatening, intimidating, or otherwise unlawfully 

 12 Appellant Figueroa-Pineda argues that the government has 

failed to exclude the possibility that the weapon belonged to 

the fleeing armed robber. This argument is of no moment. To be 

sure, Appellant Figueroa-Pineda’s explanation is plausible. 

However, it does not follow that a reasonable juror must 

conclude that the gun did not belong to Appellant FigueroaPineda. Viewing the evidence in the light most favorable to the 

government, this argument is inconsequential. 
30

influencing a co-defendant, witness, or juror, directly or 

indirectly, or attempting to do so[.]” U.S.S.G. § 3C1.1 cmt. n. 

4(A).

At the sentencing hearing, Officer Hastings testified 

that Appellant Villalobos threatened witness Vela-Garcia during 

the trial when Appellant Villalobos grabbed his own throat while 

looking in the direction of Vela-Garcia. Officer Hastings based 

his testimony on Vela-Garcia’s post-trial statements. 

Specifically, Officer Hastings testified that during a posttrial interview, Vela-Garcia indicated that he believed the 

gesture made by Appellant Villalobos was designed to make the 

point to Vela-Garcia that members of the MS-13 gang would kill 

Vela-Garcia if possible. 

Additionally, the district court noted that there had 

been a general atmosphere of intimidation during the trial and

that Vela-Garcia had appeared visibly shaken while testifying. 

As noted above, MS-13 has a history of visiting violence upon 

former members who cooperate with government officials. The 

district court observed that, consistent with this practice, 

several of the defendants glared at witnesses during trial, 

ultimately prompting the district court to admonish defendants 

to cease such behavior. Based on all of this evidence, the 

district court found that the obstruction of justice enhancement 

was warranted.
31

2.

In order to apply the obstruction of justice 

enhancement, a sentencing court must find, by a preponderance of 

the evidence, that the defendant “‘willfully obstructed or 

impeded, or attempted to obstruct or impede, the administration 

of justice . . . .’” United States v. Kiulin, 360 F.3d 456, 460 

(4th Cir. 2004) (quoting United States v. Puckett, 61 F.3d 1092, 

1095 (4th Cir. 1995)). We review factual findings made by a 

district court in applying the Sentencing Guidelines, including 

those facts that serve as a basis for an obstruction of justice 

enhancement, for clear error. Id. 

3.

Appellant Villalobos argues that the district court clearly 

erred in concluding that he threatened Vela Garcia. 

Specifically, Appellant Villalobos argues that the district 

court improperly relied on the statements of Detective Hastings 

because doing so deprived Appellant Villalobos of the 

opportunity to confront his accuser, Vela-Garcia. Additionally, 

Appellant Villalobos argues that the district court should not 

have relied on its own observations of the general atmosphere at 
32

trial as such atmosphere was not entirely attributable to 

Appellant Villalobos. We disagree.13

As the government points out, during sentencing a 

district court may properly consider “any relevant information 

before it, including uncorroborated hearsay, provided that the 

information has sufficient indicia of reliability to support its 

accuracy.” Powell, 650 F.3d at 392 (quoting United States v. 

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). Here, the 

district court relied on the statement of a cooperating witness 

as relayed by a police officer. Additionally, the district 

court relied on its own first-hand impressions of the atmosphere 

at trial, including its impression of Vela-Garcia’s demeanor 

while testifying. Taken together, these facts corroborate VelaGarcia’s testimony that he was threatened. Accordingly, the 

district court did not clearly err in concluding that Appellant 

Villalobos threatened Vela Garcia and, therefore, the district 

court did not err in applying the enhancement here.

 13 Appellant Villalobos also argues that reliance on VelaGarcia’s post-trial interview violates the Due Process Clause 

and the Confrontation Clause because Vela-Garcia was not subject 

to cross examination during that interview. However, these 

claims fail because a criminal defendant does not enjoy a 

constitutional right to cross examination at sentencing. See

U.S. v. Powell, 650 F.3d 388, 393 (4th Cir.), cert denied, 132 

S.Ct. 350 (2011).
33

III.

For the forgoing reasons, the judgment of the district 

court is AFFIRMED in part, REVERSED in part, and REMANDED. 

Specifically, the conspiracy to commit racketeering conviction 

is AFFIRMED as to each Appellant. Appellant Caballero 

Fernandez’s conviction as an accessory-after-the-fact is 

REVERSED and his case REMANDED to the district court for 

resentencing. Appellant Figueroa-Pineda’s convictions for 

possession of marijuana with intent to distribute (two counts) 

and for possession of a firearm in furtherance of a drug 

trafficking offense are AFFIRMED. Finally, the district court’s 

application of an obstruction of justice enhancement as to 

Appellant Villalobos is AFFIRMED.

No. 11-4284 AFFIRMED IN PART, 

REVERSED IN PART, AND REMANDED;

No. 11-4300, No. 11-4319, No. 11-4320,

No. 11-4418, and No. 11-4458 AFFIRMED
34

TRAXLER, Chief Judge, concurring in part and dissenting in part:

Viewing the evidence in the light most favorable to 

the government, and drawing all inferences in its favor, as we 

must, see United States v. Penniegraft, 641 F.3d 566, 571 (4th 

Cir. 2011), I would affirm Caballero Fernandez’s conviction for 

accessory-after-the-fact to murder.

Fernandez-Gradis, with Caballero Fernandez close at 

his side, stood next to the passenger door of Ruben Ibarra’s 

vehicle -- close enough for Fernandez-Gradis to knock on the 

passenger-side window with gun in hand. He then shot twice at 

point blank range at the passenger, shattering the glass from 

the window and hitting the victim once in the chest. In my 

view, this evidence would permit a jury to reasonably infer that 

both Fernandez-Gradis and Caballero Fernandez were close enough 

to see that the passenger had been shot in the chest. From a 

gunshot wound to the chest stems the logical and reasonable 

conclusion that the victim was dying.

Accordingly, I respectfully dissent from the reversal 

of Caballero Fernandez’s conviction for accessory-after-the-fact 

to the murder of Ulysses Mayo. I concur in the remainder of the 

majority opinion.