UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4573

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IZELL DELOREAN GRISSETT, JR., a/k/a Buddy,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior

District Judge. (3:13-cr-00134-JFA-2)

Submitted: March 27, 2015 Decided: April 13, 2015

Before KEENAN and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

David Bruce Betts, Columbia, South Carolina, for Appellant. 

Nancy Chastain Wicker, William Kenneth Witherspoon, Assistant 

United States Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Izell Delorean Grissett, Jr., was charged in five counts of 

a seven-count indictment with: (1) conspiracy to distribute and 

distribution of 5 kilograms or more of cocaine and 280 grams or 

more of crack cocaine, 21 U.S.C. §§ 841(a)(1), 846 (2012) (Count 

One); (2) Hobbs Act robbery, 18 U.S.C. § 1951 (2012) (Count 

Four); (3) using and carrying a firearm during and in relation 

to a drug trafficking crime and a crime of violence, 18 U.S.C. 

§ 924(c) (2012) (Count Five); (4) being a felon in possession of 

a firearm and ammunition, 18 U.S.C. § 922(g) (2012) (Count Six); 

and (5) possession with intent to distribute 500 grams or more 

of cocaine and a quantity of crack cocaine, 21 U.S.C. §

841(a)(1) (2012) (Count Seven). The jury found Grissett guilty 

on all counts; he was sentenced to life plus ten years’ 

imprisonment. Grissett noted a timely appeal. 

Counsel has filed a brief in accordance with Anders v. 

California, 386 U.S. 738 (1967), conceding that there are no 

meritorious issues for appeal but questioning whether the 

district court erred in denying Grissett’s motion for judgment 

of acquittal pursuant to Fed. R. Crim. P. 29. Grissett has 

filed a pro se supplemental brief raising two additional issues: 

(1) the district court erred when it issued a modified Allen

charge to the jury; and (2) the district court erred in applying 

the murder cross-reference at sentencing. 
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This court reviews de novo the district court’s denial of a 

motion for judgment of acquittal. United States v. Strayhorn, 

743 F.3d 917, 921 (4th Cir.), cert. denied, 134 S. Ct. 2689 

(2014). In assessing the sufficiency of the evidence, we 

determine whether there is substantial evidence to support the 

conviction when viewed in the light most favorable to the 

Government. Id. “Substantial 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.” United States v. Jaensch, 665 F.3d 83, 93 

(4th Cir. 2011) (internal quotation marks omitted). The test is 

whether “any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” 

United States v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir. 

2009) (internal quotation marks omitted). An appellate court 

“may not weigh the evidence or review the credibility of 

witnesses. . . . [t]hose functions are reserved for the jury.” 

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) 

(internal citation omitted). 

With these standards in mind, we have reviewed the record 

and find that the evidence presented was sufficient to support a 

conviction as to each of the counts with which Grissett was 

charged. Testimony established that Grissett was part of a 

long-term cocaine and crack cocaine distribution operation in 
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the Columbia, South Carolina area. According to witnesses, 

Grissett and his co-conspirator planned and carried out a 

robbery of one of their suppliers in June 2010, during which 

Grissett shot and killed Hector Carrion. Based on this 

evidence, we find that the district court did not err in denying 

Grissett’s motion for judgment of acquittal.

Turning to Grissett’s pro se claims, he first argues that 

the district court erred in issuing a modified Allen charge that 

eliminated any mention of the words “minority” or “majority”

with regard to the jurors’ votes. The modification was agreed 

upon by both parties because the jurors had mistakenly indicated 

their split in the votes in their message to the judge. “An 

Allen charge, based on the Supreme Court’s decision in Allen v. 

United States, 164 U.S. 492 (1896), is ‘[a]n instruction 

advising deadlocked jurors to have deference to each other’s 

views, that they should listen, with a disposition to be 

convinced, to each other’s argument.’” United States v. Burgos, 

55 F.3d 933, 935 (4th Cir. 1995) (quoting United States v. 

Seeright, 978 F.2d 842, 845 n.* (4th Cir. 1992)). We review the 

content of an Allen charge for abuse of discretion. United 

States v. Burgos, 55 F.3d at 935. An “Allen charge must not 

coerce the jury, and it must be fair, neutral and balanced.” 

United States v. Cropp, 127 F.3d 354, 359 (4th Cir. 1997) 

(internal citations omitted). We conclude that the district 
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court’s charge was not coercive nor can Grissett show that he 

suffered any prejudice as a result. Finally, Grissett 

challenges the application of the murder cross-reference at 

sentencing. The advisory Sentencing Guidelines provide that 

“[i]f a victim was killed under circumstances that would 

constitute murder under 18 U.S.C. § 1111 had such killing taken 

place within the territorial or maritime jurisdiction of the 

United States, apply § 2A1.1 (First Degree Murder) . . . if the 

resulting offense level is greater than that determined under 

this guideline.” U.S. Sentencing Guidelines Manual §

2D1.1(d)(1) (2013). The Government must prove the facts 

underlying a cross-reference by a preponderance of the evidence. 

United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012). We 

find that the testimony established that the killing of Hector 

Carrion constituted first degree murder within the meaning of 18 

U.S.C. § 1111. Also, because the application of § 2D1.1(d)(1) 

did not increase Grissett’s mandatory minimum sentence, his

reliance on the Supreme Court’s decision in Alleyne v. United 

States, 133 S. Ct. 2151 (2013) is misplaced. 

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. We therefore affirm the district court’s order. This 

court requires that counsel inform Grissett, in writing, of the 

right to petition the Supreme Court of the United States for 
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further review. If Grissett requests that a petition be filed, 

but counsel believes that such a petition would be frivolous, 

then counsel may move in this Court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Grissett. 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