UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4304

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL T. MCGEE,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:13-cr-00023-FPS-JES-1)

Submitted: December 31, 2014 Decided: February 10, 2015

Before WILKINSON, GREGORY, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Elgine McArdle, MCARDLE LAW OFFICES, Wheeling, West Virginia, 

for Appellant. William J. Ihlenfeld, II, United States 

Attorney, Robert H. McWilliams, Jr., Assistant United States 

Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael McGee was convicted, following a jury trial, 

of conspiracy to possess cocaine with intent to distribute, in 

violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012) (“Count 

One”), and was acquitted of possessing cocaine with intent to 

distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) 

(“Count Two”). The district court sentenced McGee to 262 

months’ imprisonment. McGee timely appeals his conviction and 

sentence, arguing that (1) the district court erred in admitting 

evidence pursuant to Federal Rule of Evidence 404(b); (2) there 

was insufficient evidence to convict him on Count One; (3) the 

district court violated McGee’s constitutional right to be 

present during discussion and formulation of a response to a 

jury question during deliberations; (4) the district court erred 

in designating McGee a career offender; and (5) the district 

court erred in applying a two-level enhancement for obstruction 

of justice. Finding no reversible error, we affirm.

I.

We review a district court’s evidentiary rulings for 

abuse of discretion. United States v. Taylor, 754 F.3d 217, 226 

n.* (4th Cir.), petition for cert. filed, ___ S. Ct. ___ (Sept. 

4, 2014) (No. 14-6166). An abuse of discretion occurs only when 

the district court “acted arbitrarily or irrationally in 

admitting evidence.” United States v. Williams, 445 F.3d 724, 
3

732 (4th Cir. 2006) (citation and internal quotation marks 

omitted). 

Rule 404(b) prohibits the admission of “[e]vidence of 

a crime, wrong, or other act . . . to prove a person’s character 

in order to show that on a particular occasion the person acted 

in accord with the character.” Fed. R. Evid. 404(b). Such 

evidence is “admissible for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident.” Id. To be 

admissible, the evidence must be “(1) relevant to an issue other 

than the general character of the defendant; (2) necessary to 

prove an element of the charged offense; and (3) reliable.” 

United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). 

Additionally, the prejudicial effect of the evidence must not 

substantially outweigh its probative value. Id.

Evidence of other bad acts also “may be introduced if 

it concerns acts intrinsic to the alleged crime because evidence 

of such acts does not fall under Rule 404(b)’s limitations.” 

United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013)

(internal quotation marks and brackets omitted), cert. denied, 

134 S. Ct. 1279 (2014). Evidence is intrinsic “if it arose out 

of the same . . . series of transactions as the charged offense, 

. . . or if it is necessary to complete the story of the crime 

(on) trial.” United States v. Kennedy, 32 F.3d 876, 885 (4th 
4

Cir. 1994) (internal quotation marks omitted). Evidence is also 

intrinsic “if it is necessary to provide context relevant to the 

criminal charges.” United States v. Basham, 561 F.3d 302, 326 

(4th Cir. 2009) (internal quotation marks omitted).

McGee argues that the district court erred in 

admitting evidence of five controlled buys in November 2012 

involving a Government informant. He contends that this 

evidence served no purpose other than to “pollute the waters” of 

McGee’s conspiracy charge because the buys were too remote in 

time or geography to be relevant. McGee also argues that the 

district court abused its discretion in admitting evidence of 

uncharged drug distribution. We disagree. Here, the Government 

introduced the controlled buys as evidence of the conspiracy. 

The court also properly admitted the contested evidence under 

Kennedy because it arose out of the same series of transactions 

and was necessary to complete the story of the crimes on trial.

II.

McGee next asserts that the evidence presented at 

trial was insufficient to sustain his conviction on Count One. 

“A defendant challenging the sufficiency of the evidence to 

support his conviction bears a heavy burden.” United States v. 

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation 

marks omitted). The jury verdict must be sustained when “there 

is substantial evidence in the record, when viewed in the light 
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most favorable to the government, to support the conviction.” 

United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) 

(internal quotation marks omitted). “[S]ubstantial evidence is 

evidence that a reasonable finder of fact could accept as 

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

guilt beyond a reasonable doubt.” Id. (internal quotation marks 

omitted). We do not weigh the credibility of the evidence or 

resolve any conflicts in the evidence. Beidler, 110 F.3d at 

1067. “Reversal for insufficient evidence is reserved for the 

rare case where the prosecution’s failure is clear.” Id.

(internal quotation marks omitted).

To convict McGee of Count One, the Government was 

required to prove beyond a reasonable doubt the following 

elements: (1) an agreement between McGee and one or more people 

to engage in conduct that violates federal drug law; (2) McGee’s 

knowledge of the conspiracy; and (3) McGee’s knowing and 

voluntary participation in the conspiracy. See United States v. 

Howard, No. 13-4296, __ F.3d __, 2014 WL 6807270, at *4 (4th 

Cir. Dec. 4, 2014). This may be done by either direct or 

circumstantial evidence. United States v. Hickman, 626 F.3d 

756, 763 (4th Cir. 2010).

We conclude that that there was sufficient evidence 

for a reasonable jury to find beyond a reasonable doubt that a 

conspiracy existed. The evidence at trial established the 
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existence of a drug distribution system involving McGee as 

cocaine supplier. Although McGee did not know everyone 

involved, the Government did not have to prove that McGee “knew 

all of his co-conspirators or all of the details of the 

conspiracy.” United States v. Burgos, 94 F.3d 849, 861 (4th 

Cir. 1996) (en banc). Instead, McGee knew that his buyer acted 

as a middleman for a third person; this proved a conspiracy. 

Moreover, through its informant, the Government showed 

that McGee was involved in a conspiracy in November 2012. 

Testimony from the informant revealed that McGee had controlled 

substances readily available and worked with a supplier to 

ensure quick sales. This correlated with other testimony that 

McGee completed cocaine sales within twenty-four hours of a buy 

request. Therefore, a jury could infer that, as early as 

November 2012, McGee had a steady supplier who knew that he was 

redistributing the cocaine to others.

The Government also introduced evidence of overt acts 

within the Northern District of West Virginia. Co-conspirators 

testified that they met in West Virginia prior to driving to 

McGee in Ohio for the actual buy. Thus, even if McGee never 

sold drugs in West Virginia, his co-conspirators met there, 

which established an overt act in West Virginia in furtherance 

of the conspiracy.
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To the extent that McGee argues that his acquittal on 

Count Two undermines his conviction on Count One, he is 

incorrect. “[I]t is well-settled that a defendant cannot 

challenge his conviction merely because it is inconsistent with 

a jury’s verdict of acquittal on another count.” United States 

v. Louthian, 756 F.3d 295, 305 (4th Cir.), cert denied, 135 S. 

Ct. 421 (2014). Moreover, the Government is not required 

“either to allege or prove an overt act in a conspiracy charged 

under 21 U.S.C. § 846.” United States v. Clark, 928 F.2d 639, 

641 (4th Cir. 1991). Thus, McGee’s acquittal of an underlying 

overt act did not negate the existence of a conspiracy.

III.

McGee next asserts that the district court violated 

his right to be present during discussion and formulation of a 

response to a jury question during deliberations. Federal Rule 

of Criminal Procedure 43 provides that a defendant has the right 

to be present at every stage of trial, including when the judge 

communicates with the jury. When a defendant fails to raise 

this argument before the district court, we review for plain 

error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 

2012). To establish plain error, an appellant must show “(1) 

error, (2) that is plain, and (3) that affects substantial 

rights.” United States v. Thomas, 669 F.3d 421, 424 (4th Cir. 

2012) (internal quotation marks omitted).
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While the district court should not have begun to 

discuss and formulate a response to the jury question while 

McGee was absent, McGee has not shown that his substantial 

rights were affected. McGee’s attorney was present at all times 

during the court’s discussion, and McGee’s absence was brief; 

upon his arrival in the courtroom, the court re-read the 

question to him, after which the bulk of the discussion and 

formulation occurred. See United States v. Harris, 814 F.2d 

155, 157 (4th Cir. 1987) (per curiam) (finding no prejudice “in 

light of the fact that defendant’s counsel was present and that 

prompt remedial measures were taken by the district court” once 

defendant was brought into courtroom).

Moreover, the question itself was one of law, not 

fact, to which the court gave a direct answer guiding the jury 

to the instructions and no more. See United States v. 

Arriagada, 451 F.2d 487, 489 (4th Cir. 1971). Also, McGee’s 

counsel never challenged this issue until the instant appeal. 

See id. (“Had it appeared to the appellant or his counsel that 

the action of the District Court involved any prejudice, 

objection would have been promptly entered by the appellant and 

not tardily raised after verdict.”). Accordingly, we find no 

reversible error.
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IV.

McGee next contends that the district court erred in 

sentencing him as a career offender based on his convictions for 

aggravated robbery in 1989, drug trafficking in 2004, and drug 

trafficking in 2009. When a defendant challenges the district 

court’s calculation of the Sentencing Guidelines, we review the 

district court’s “legal conclusions de novo and its factual 

findings for clear error.” United States v. Medina-Campo, 714 

F.3d 232, 234 (4th Cir.), cert. denied, 134 S. Ct. 280 (2013).

The Guidelines provide that a defendant is a career 

offender if he was at least eighteen years old at the time of 

the instant offense, the instant offense is a drug felony or 

crime of violence, and the defendant has at least two prior 

felony convictions for drug offenses or crimes of violence. 

U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a) (2013). A 

prior conviction qualifies as a predicate offense only if the 

sentence of imprisonment exceeded thirteen months and “was 

imposed within fifteen years of the defendant's commencement of 

the instant offense . . . [or] resulted in the defendant being 

incarcerated during any part of such fifteen-year period.” USSG 

§§ 4A1.2(e)(1), 4B1.2 cmt. n.3. We have reviewed McGee’s 

arguments as to each of the three convictions at issue and 

conclude that the district court properly determined that all of 
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the convictions were predicate offenses for designating him a 

career offender.

V.

Finally, McGee challenges the two-level enhancement 

for obstruction of justice. We find that this issue is moot 

because the offense level established under the career offender 

Guideline was greater than the offense level calculated using 

the Guidelines for drug offenses and any specific offense 

characteristic or adjustment. Thus, the obstruction enhancement 

did not affect McGee’s sentence.

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED