UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4637

JOSEPH ABED, a/k/a Joseph Abbott,

a/k/a Pancake Joe, a/k/a Joe, a/k/a

Godfather,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4642

THAIER OMAR ABED, a/k/a Little O,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4647

AMAR KHALID ABED, a/k/a Omar,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4648

OBADYA HANIFI ABED, a/k/a Beta,

Defendant-Appellant.
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4649

FAHAD T. TAWALBEH,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4670

RAYED FAWZI ABED,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CR-97-24-R)

Argued: October 28, 1999

Decided: January 10, 2000

Before NIEMEYER and WILLIAMS, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Harwell M. Darby, Jr., GLENN, FELDMANN, DARBY

& GOODLATTE, Roanoke, Virginia; Rhonda Lee Overstreet, Roa-

 2
noke, Virginia; Melissa Windham Friedman, Roanoke, Virginia;

James Peyton Cargill, LAW OFFICES OF DANIEL L. CRANDALL,

P.C., Roanoke, Virginia, for Appellants. Thomas Ernest Booth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. ON BRIEF: Gary L. Lumsden, Roanoke, Virginia, for Appellant Joseph Abed; Rena Gladys Berry, Roanoke, Virginia, for Appellant Amar Abed. Robert P. Crouch, Jr., United States

Attorney, Thomas J. Bondurant, Assistant United States Attorney,

Julie C. Dudley, Assistant United States Attorney, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joseph Abed, Amar Abed, Obadya Abed, Rayed Abed, Thaier

Abed, and Fahad Tawalbeh (collectively, Appellants) were convicted

by a jury of committing various federal crimes arising out of a criminal enterprise of which Appellants were alleged to be members.1

Appellants jointly and individually assert a number of different

grounds for reversal on appeal, principally that the district court erred

in instructing the jury on the proof necessary to find Appellants guilty

of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. § 1962(d) (West Supp. 1999); that

the evidence presented by the Government was insufficient for the

jury to find Joseph, Amar, Obadya, and Rayed guilty of a substantive

RICO offense, 18 U.S.C.A. § 1962(c) (West 1984); that the evidence

was insufficient to find Joseph, Amar, Obadya, and Rayed guilty of

RICO conspiracy, 18 U.S.C.A. § 1962(d); that the evidence was

insufficient for the jury to find Joseph guilty of two predicate acts of

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1 For the sake of brevity and convenience, all subsequent references to

individual Appellants who are Abeds will use their first name.

 3
racketeering; and that the evidence was insufficient for the jury to

find Tawalbeh, Obadya, and Rayed guilty of using a destructive

device during and in relation to a crime of violence, in violation of

18 U.S.C.A. § 924(c) (West Supp. 1999) and 18 U.S.C.A. § 2 (West

1969). Several Appellants also assert that the district court erred at

sentencing. Finding no error, we affirm Appellants' convictions and

sentences.

I.

According to the Government's theory of the case, Appellants were

members of an organization loosely termed the "Abed organization"

that committed various federal crimes in Roanoke, Virginia and the

surrounding area. Joseph and his brother Abed Abedjalil were the

alleged leaders of the conspiracy.2 Rayed is Joseph's son; Amar, Obadya, and Thaier are Abedjalil's sons. Rayed, Amar, Obadya, and

Thaier were referred to as "the boys" by Joseph and Abedjalil.

Although "the boys" acted autonomously in the commission of many

offenses, a number of crimes they committed were at the behest of

Joseph and Abedjalil, furthering the fathers' interests. Fahad Tawalbeh was an associate of the Abed family who maintained close contact with Joseph and shared some affiliation with"the boys."

Rayed, Amar, Obadya, and Thaier participated in illegal drugtrafficking activities. Beginning in 1992, "the boys" distributed marijuana and cocaine powder from family-owned businesses in Roanoke

and the surrounding area, including Tolley's Bar, Guys and Dolls

Nightclub, and Pizza King Restaurant. These four Appellants also

conducted drug transactions from their residence in Roanoke. In addition to dealing drugs themselves, "the boys" frequently burglarized

the residences of other local drug dealers in order to obtain drugs for

sale and for personal use. Moreover, "the boys" did not limit their illegal activities to drug trafficking. Issam Ottallah, an unindicted coconspirator, testified that he and Amar would often beat and rob

patrons of Tolley's Bar and that he, Amar, Obadya, and Thaier would

often burglarize cars in its parking lot and steal guns and other valuables. According to Ottallah, he and "the boys" would give the stolen

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2 Abedjalil was also named in the indictment but was acquitted by the

jury of all counts against him.

 4
goods to Joseph, who would resell them at his pancake house. Several

witnesses testified that in December 1993, Obadya burglarized

Dave's Market, a convenience store, and along with Rayed and Ottallah, sold the stolen goods to Abedjalil, who used the goods to stock

a convenience store he owned.

Joseph owned property that contained Tolley's Bar and an apartment complex. Joseph and Abedjalil were unable to keep Tolley's Bar

solvent and Joseph was unable to maintain current payments on the

loan he took out to purchase the property. As a result, the lending

bank foreclosed on the property during the summer of 1992. Shortly

after news of the imminent foreclosure became public, William Bowyer, owner of Central Motors, a business that was located adjacent to

Tolley's Bar, purchased the property. Donna Abed, Joseph's

daughter-in-law, testified that Joseph went "ballistic" after learning

that Bowyer had purchased the property. Although Bowyer purchased

the property in May 1992, he did not send Joseph an eviction notice

until July 1, 1992. Ottallah testified that in July 1992, Joseph convened a meeting with Ottallah, Amar, Obadya, Thaier, and Ronald

Jones.3 At that meeting, Joseph stated that he wanted Central Motors

to be burned that night. Joseph then gave money to Amar and told

him to buy gasoline and to burn Central Motors after all the customers

had left Tolley's Bar.

Jones testified that Amar and Ottallah instructed him and Thaier to

slash tires at the Central Motors parking lot. In accordance with those

instructions, Thaier and Jones went to Central Motors and began to

slash tires. Thaier deliberately cut his hand in an effort to avoid further participation in the offense and was told by Amar to go back to

the bar. Jones also testified that he, Amar, and Ottallah then went to

a gasoline station to purchase gasoline for the fire. Amar and Jones

then sprayed the entire Central Motors lot with gasoline. Before the

fire could be started, however, the police arrived, and all the participants fled the scene.

Tawalbeh owned a convenience store named Speedway Market.

Cheryl Lyons, a teenage prostitute, testified that Tawalbeh was active

in the illegal drug trade and allowed drug dealers to hide drugs in his

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3 Jones was not named in the indictment.

 5
store when the police were in the area. Lyons testified that in

exchange for crack cocaine, she provided sexual favors to Tawalbeh.

Lyons also testified that she purchased marijuana from Amar and

Obadya, either at Guys and Dolls Nightclub or Speedway Market.

Pamela DeGeorge, a federal undercover agent, testified that in 1992,

she investigated Speedway Market for illegal food stamp trafficking

and that Tawalbeh arranged for her to sell her food stamps to Amar.

DeGeorge also testified that Tawalbeh told her that he could obtain

crack cocaine and marijuana for her but that she had declined his

offer.

In the fall of 1994, Tawalbeh became upset because he thought that

the business at Speedway Market was suffering due to competition

from the Corner Store, a convenience store located across the street.

Tawalbeh propositioned several individuals about eliminating the

competition by burning down the Corner Store. Michael Witt, a customer of Speedway Market, testified that Tawalbeh asked him to burn

down the Corner Store "several times" and told him to use a Molotov

cocktail to do so. Ottallah testified that both Joseph and Tawalbeh

asked him to burn down the Corner Store and offered him $5,000 for

the job. Tawalbeh and Amar subsequently agreed that Amar would

burn down the Corner Store. Amar brought Obadya, Rayed, and Richard Chisom, one of his associates, into the scheme. Chisom testified

that a week before the fire at the Corner Store, he, Amar, Obadya, and

Rayed met with Tawalbeh and Joseph at the Speedway Market, where

a conversation in Arabic occurred. Amar subsequently translated the

conversation for Chisom, informing him that Tawalbeh wanted the

Corner Store burned because it was taking away business from the

Speedway Market, that he would pay $2,000 for the job, and that the

Corner Store would be burned with a Molotov cocktail.

After scouting the Corner Store, Amar, Obadya, Rayed, and Chisom decided that they would toss a Molotov cocktail through the back

window of the Corner Store into the stockroom. On January 13, 1995,

they carried out their plan. Chisom testified that Rayed made the

Molotov cocktail with a wine bottle, a rag, and some gasoline. Rayed

dropped Chisom and Amar off in the alley behind the Corner Store,

while Obadya served as a lookout at the front of the alley. After Chisom broke the window with a rock, Amar lit the Molotov cocktail,

and Chisom threw it into the store. The conspirators met at their car,

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circled around the block, and returned to Chisom's apartment. The

fire "completely burnt out" the Corner Store. (J.A. at 352.)

In August 1995, Joseph opened a pancake house on Jefferson

Street (the Jefferson Street Pancake House) on property leased from

CW Francis & Son. The five-year lease required Joseph to pay $2,000

per month in rent plus real estate taxes and insurance, and to pay five

years rent in the event of a default. The lease also contained a rent

abatement clause if the building was destroyed by fire. CW Francis

& Son maintained insurance on the property and business interruption

insurance on the income from the property, and required all tenants

to name CW Francis & Son as an additional insured on their insurance. In September 1995, Joseph purchased a $50,000 insurance policy to cover personal property and glass at the restaurant.

Toward the end of 1995, business began to slow down and Joseph

was having difficulty paying his food service creditors. According to

William Trinkle, President of CW Francis & Son, Joseph's rent payment history was poor. Joseph was late in paying the insurance and

rent for October 1995. On October 27, 1995, CW Francis & Son filed

a summons for unlawful detainer and began eviction proceedings

against Joseph. On that same day, CW Francis & Son sued Joseph for

the October and November rent in the amount of $4,000, a $400 late

fee, $619.48 for real estate taxes, and $30 in court costs. After Joseph

failed to pay his outstanding rent and late fees in full, CW Francis &

Son filed a writ of possession and a levy, and obtained an eviction

order that required Joseph to vacate the premises by December 22.

On December 18, 1995, four days before the scheduled eviction, a

fire broke out at the Jefferson Street Pancake House. The firemen

reporting to the scene testified that both the front and rear doors to the

pancake house were locked. The assistant fire marshal testified that

the amount of inventory at the pancake house was minimal. Based

upon the presence of accelerants and the gas being left on, the assistant fire marshal concluded that the fire was an act of arson. Although

a proof of loss was filed on Joseph's behalf by the agent of the insurance company that sold Joseph the $50,000 policy, no payment was

made under that claim. CW Francis & Son received a total of

$78,678.62 as a result of the fire, from both building insurance and

business interruption insurance. CW Francis & Son decided not to

 7
restore the pancake house, and the building was razed to make room

for a parking lot.

Appellants were charged in a twelve-count indictment with committing various federal crimes arising out of the activities of the Abed

organization. Counts One and Two charged all Appellants with a substantive RICO offense, 18 U.S.C.A. § 1962(c) (West 1984), and conspiracy to violate RICO, 18 U.S.C.A. § 1962(d) (West Supp. 1999),

respectively. Counts Three and Four charged Joseph, Amar, Obadya,

Rayed, and Thaier with conspiracy to commit arson, in violation of

18 U.S.C.A. § 371 (West Supp. 1999), and attempted arson, in violation of 18 U.S.C.A. § 844(i) (West Supp. 1999) and 18 U.S.C.A. § 2

(West 1969), respectively, of Central Motors. Counts Five and Six

charged these Appellants with conspiracy to commit arson, in violation of 18 U.S.C.A. § 371, and arson, in violation of 18 U.S.C.A.

§ 844(i) and 18 U.S.C.A. § 2, respectively, of Mixers Restaurant and

Lounge.4 Counts Seven and Eight charged these Appellants with wire

fraud, in violation of 18 U.S.C.A. § 1343 (West Supp. 1999) and 18

U.S.C.A. § 2, and of 18 U.S.C.A. § 844(h) (West Supp. 1999) and 18

U.S.C.A. § 2, respectively, in connection with the arson of Mixers

Restaurant and Lounge. Counts Nine and Ten charged Joseph, Amar,

Obadya, Rayed, and Tawalbeh with conspiracy to commit arson, in

violation of 18 U.S.C.A. § 371, and arson, in violation of 18 U.S.C.A.

§ 844(i) and 18 U.S.C.A. § 2, respectively, of the Corner Store. Count

Eleven charged these Appellants with use of a destructive device during and in relation to a crime of violence, in violation of 18 U.S.C.A.

§ 924(c) (West Supp. 1999) and 18 U.S.C.A.§ 2, relating to the use

of a Molotov cocktail in the Corner Store arson. Count Twelve

charged all Appellants with conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C.A. § 846 (West 1999).

Following a thirty-five day trial, which included ten days of deliberation, the jury returned its verdict. The jury convicted Joseph on

Counts One, Two, Three, and Four. The jury found that Joseph had

committed the predicate racketeering acts of arson of the Jefferson

Street Pancake House and attempted arson of Central Motors. The

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4 Mixers Restaurant and Lounge was owned by Riyadh Mahmoud

Gibriel and Ahmad Thiab, who were also named in the indictment but

acquitted by the jury of all counts against them.

 8
jury acquitted Joseph on Counts Five through Twelve. The jury convicted Amar on Counts One, Two, Three, Four, Nine, Ten, Eleven,

and Twelve. The jury found that Amar had committed the predicate

racketeering acts of arson of the Corner Store, attempted arson of

Central Motors, robbery, and drug conspiracy. The jury acquitted

Amar on Counts Five through Eight. The jury convicted Obadya and

Rayed on Counts One, Two, Nine, Ten, Eleven, and Twelve. The jury

found that they had committed the predicate racketeering acts of arson

of the Corner Store and drug conspiracy. The jury acquitted them on

Counts Three through Eight. The jury convicted Thaier on Counts

Two, Three, and Twelve and acquitted him on Count One and Counts

Four through Eight. Finally, the jury convicted Tawalbeh on Counts

Nine, Ten, and Eleven and acquitted him on Counts One, Two, and

Twelve. Appellants received sentences ranging from 92 months to

570 months.

Appellants jointly and individually assert a number of different

grounds for reversal on appeal. With regard to the district court's

actions at trial, Joseph, Obadya, and Rayed argue that the district

court erred by refusing to give their requested jury instruction on the

proof necessary to find one guilty of RICO conspiracy under 18

U.S.C.A. § 1962(d). In addition, Appellants assert several sufficiencyof-the-evidence claims. Joseph, Amar, Obadya, and Rayed argue that

the evidence was insufficient to sustain their convictions for the substantive RICO violation and for RICO conspiracy. Joseph argues that

the evidence was insufficient to sustain the jury's finding that he committed the predicate acts of arson and attempted arson. Tawalbeh,

Obadya, and Rayed argue that the evidence was insufficient to sustain

their convictions for use of a destructive device during and in relation

to a crime of violence.

Several Appellants also argue that the district court erred in calculating their sentences. Joseph argues that the district court erred in setting his base offense level at 24, pursuant to U.S. Sentencing

Guidelines Manual § 2K1.4(a)(1) (1998), based upon its finding that

the attempted arson of Central Motors created a substantial risk of

death or serious bodily injury and that Joseph knowingly created that

risk. Joseph also argues that the district court erred in enhancing his

offense level by four levels, pursuant to U.S.S.G.§ 3B1.1(a), based

upon its finding that he was an organizer and leader of an attempted

 9
arson of Central Motors that included five or more participants. Amar

argues that the district court erred in using his food stamp fraud conviction as a prior offense in calculating the criminal history portion

of his guideline sentence. Finally, Tawalbeh, Obadya, and Rayed

argue that the district court erred in sentencing them to mandatory,

consecutive thirty-year sentences under 18 U.S.C.A.§ 924(c) for

using a Molotov cocktail to commit the Corner Store arson.

We now address these arguments.5

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5 Appellants also argue that the district court erred by (1) denying their

pretrial motion to dismiss Counts One and Two of the indictment on the

ground that the RICO pattern element was unconstitutionally vague as

applied to the facts of this case; (2) admitting evidence of Appellants'

uncharged crimes as proof of the existence and structure of the charged

racketeering enterprise; (3) admitting oral statements and nonverbal conduct of witnesses concerning the Corner Store fire; (4) failing to give a

separate Pinkerton instruction, see Pinkerton v. United States, 328 U.S.

640 (1946), on co-conspirator liability; and (5) denying their motion for

a new trial on the ground that the Government's plea agreements with

cooperating witnesses violated 18 U.S.C.A. § 201(c)(2) (West Supp.

1999), the anti-gratuity statute. Tawalbeh asserts that the district court

erred by refusing to give the jury his requested instruction on the use of

co-conspirator statements. Thaier contends that the district court erred by

refusing to give his requested instruction on duress.

We have carefully considered these arguments and find them meritless. See United States v. Bennett, 984 F.2d 597, 606-07 (4th Cir. 1993)

(upholding "pattern of racketeering" requirement in the RICO statute

against vagueness challenge because statute provided defendants with

adequate notice that acts of arson, fraud, attempted murder, perjury, and

obstruction of justice that were committed to allow the enterprise to continue to defraud insurance companies "fell within those acts contemplated by a RICO enterprise and a RICO conspiracy to participate in the

affairs of such an enterprise"); United States v. Salerno, 108 F.3d 730,

738-39 (7th Cir. 1997) (holding that because the existence of an enterprise is an essential element of the RICO offense, evidence that goes to

establish an enterprise's existence and a defendant's participation in it is

not "other crimes" evidence subject to Federal Rule of Evidence 404(b));

United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993) (noting that

extrajudicial statements implicating defendant in a crime were properly

admitted as nonhearsay because they were offered not for their truth but

 10
II.

Joseph, Obadya, and Rayed first argue that the district court erred

in its instruction to the jury on the proof necessary to find one guilty

of RICO conspiracy. See 18 U.S.C.A. § 1962(d) (West Supp. 1999).

At the close of trial, the district court instructed the jury that to establish guilt under § 1962(d) (Count Two) the Government was required

to prove beyond a reasonable doubt the following:

One, a conspiracy or agreement existed, as detailed in

Count Two, to participate in the affairs of an enterprise that

affected interstate commerce through a pattern of racketeering activity; two, the particular defendant deliberately

enjoined -- deliberately joined or became a member of a

conspiracy or agreement with knowledge of its purpose;

and, three, the particular defendant knew at the time he

joined the conspiracy or at some later time while he still was

a member that someone, not necessarily the defendant,

would commit at least two of the racketeering acts detailed

in the indictment in furtherance of the racketeering scheme.

(J.A. at 3832.) The district court further instructed the jury that to

meet its burden under this Count, the Government was required to

prove that "the defendant knowingly adopted the goal of furthering or

facilitating the criminal endeavor," or in other words, that "the defendant knew about the pattern of racketeering activity and agreed to

_________________________________________________________________

to show defendant's motive to murder the declarants); United States v.

Aramony, 88 F.3d 1369, 1379-81 (4th Cir. 1996) (upholding sufficiency

of Pinkerton instruction substantially similar to one given by district

court here); United States v. Richardson, 1999 WL 686892, *2-*5 (4th

Cir. Sept. 3, 1999) (rejecting argument that § 201(c)(2) applies to plea

agreements between Government and witnesses); United States v. Smith,

44 F.3d 1259, 1270-71 (4th Cir. 1995) (holding that district court is not

required to give defendant's particular form of instruction so long as the

instruction the court gives fairly states the controlling law); United States

v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994) (holding that court can refuse

to instruct the jury on the duress defense if the defendant fails to proffer

sufficient evidence as a matter of law to support an element of the

defense).

 11
facilitate the racketeering scheme," but was not required "to prove

that the defendant himself committed or agreed to commit two or

more acts of racketeering." (J.A. at 3833.) Rayed objected to the third

part of the initial instruction on behalf of Appellants and requested

that the district court instruct the jury that the Government was

required to prove that the defendant agreed that someone would commit at least two racketeering acts. The district court overruled this

objection.

On appeal, Joseph, Obadya, and Rayed renew this objection, arguing that the district court misinterpreted United States v. Salinas, 118

S. Ct. 469 (1997), when it stated that a defendant need not have

agreed that someone would commit two predicate acts to be convicted

of RICO conspiracy. These Appellants assert that Salinas only held

that a defendant need not have agreed personally to commit two predicate acts to be convicted of RICO conspiracy. In support of their

interpretation, these Appellants cite a Seventh Circuit case, Goren v.

New Vision Int'l, Inc., 156 F.3d 721 (7th Cir. 1998), decided after

Salinas, in which that court held that the defendant must have agreed

that someone would commit at least two predicate acts. Joseph, Obadya, and Rayed assert that the district court's failure to give the

requested instruction warrants reversal of their convictions on Count

Two.

"This [C]ourt reviews jury instructions in their entirety and as part

of the whole trial." United States v. Bostian , 59 F.3d 474, 480 (4th

Cir. 1995). In a criminal case, this Court examines"`whether the

court adequately instructed the jury on the elements of the offense and

the accused's defenses.'" Id. (quoting United States v. Fowler, 932

F.2d 306, 317 (4th Cir. 1991)). "Both the decision to give (or not to

give) a jury instruction and the content of an instruction are reviewed

for abuse of discretion." United States v. Russell, 971 F.2d 1098, 1107

(4th Cir. 1992). As this Court has noted:

A refusal to grant a requested instruction is only reversible

error if the instruction (1) was correct; (2) was not substantially covered by the court's charge to the jury; and (3) dealt

with some point in the trial so important, that failure to give

the requested instruction seriously impaired the defendant's

ability to conduct his defense.

 12
United States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998), cert.

denied, 119 S. Ct. 835 (1999). In sum, this Court's review is

"whether, taken as a whole, the instruction [given] fairly states the

controlling law." United States v. Cobb, 905 F.2d 784, 789 (4th Cir.

1990).

In Salinas, the Supreme Court addressed the defendant's argument

that to prove guilt on a charge of conspiracy to violate RICO, the

Government needed to prove that the defendant himself committed or

agreed to commit the two predicate acts required for a substantive

RICO offense under § 1962(c). See 118 S. Ct. at 476. The Supreme

Court rejected this argument, holding that "[a] conspirator must

intend to further an endeavor which, if completed, would satisfy all

of the elements of a substantive criminal offense, but it suffices that

he adopt the goal of furthering or facilitating the criminal endeavor."

Id. at 477 (emphasis added). Applying this standard to the facts of the

case, the Court upheld the defendant's conviction under § 1962(d),

because even though he did not commit or agree to commit the two

predicate acts of acceptance of bribes, he "knew about and agreed to

facilitate the scheme." Id. at 478.

In Goren, the Seventh Circuit addressed the applicability of Salinas

in the context of a civil RICO complaint. The Seventh Circuit concluded that a viable claim under § 1962(d) requires "that each defendant agree[ ] to maintain an interest in or control of an enterprise or

to participate in the affairs of an enterprise through a pattern of racketeering activity" and "that each defendant further agree[ ] that someone would commit at least two predicate acts to accomplish those

goals." Goren, 156 F.3d at 732. Focusing on the latter requirement,

Joseph, Obadya, and Rayed argue that the district court erred as a

matter of law by refusing to instruct the jury that to convict Appellants of RICO conspiracy under § 1962(d), it needed to find that each

Appellant agreed that someone would commit at least two predicate

acts.

We believe that Appellants' focus on Goren leads them to take an

overly narrow view of the district court's instruction on Count Two.

As the Supreme Court has noted, "instructions must be evaluated not

in isolation but in the context of the entire charge." Jones v. United

States, 119 S. Ct. 2090, 2103 (1999). In addition to instructing the

 13
jury that, to sustain its burden of proof for RICO conspiracy, the Government had to prove beyond a reasonable doubt that the particular

defendant knew that someone would commit at least two predicate

racketeering acts in furtherance of the racketeering scheme, the district court also instructed the jury that the Government was required

to prove that (1) a conspiracy existed, (2) the particular defendant

deliberately joined the conspiracy with knowledge of its purpose, and

(3) the defendant knowingly adopted the goal of furthering or facilitating the criminal endeavor. This instruction, viewed in its entirety,

is almost identical to the jury instruction the Supreme Court upheld

in Salinas, which also did not specifically mention that the Government was required to prove that the defendant agreed that someone

would commit two predicate acts.6 The instruction in the instant case

is also virtually identical to the Supreme Court's characterization of

the requirements of RICO conspiracy. See Salinas , 118 S. Ct. at 477

("A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal

offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor."). Accordingly, we hold that the district

court's jury instruction on the proof necessary to find one guilty of

RICO conspiracy, 18 U.S.C.A. § 1962(d), fairly stated the controlling

law and was not reversible error.

III.

Appellants next assert several sufficiency-of-the-evidence claims.

Joseph, Amar, Obadya, and Rayed argue that the Government's evidence was insufficient to convict them of the substantive RICO

offense, 18 U.S.C.A. § 1962(c) (West 1984), and of RICO conspiracy, 18 U.S.C.A. § 1962(d) (West Supp. 1999). Joseph contends that

the Government's evidence was insufficient for the jury to find that

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6 The trial court's instruction on the RICO conspiracy count stated:

What you are being asked to decide in Count Two is .. . If Salinas was only involved in one or two or even none, did he, nevertheless, know about this pattern. Did he know that this whole

pattern of activity was going on and did he then knowingly and

willfully join in and participate and contribute in some fashion.

United States v. Marmolejo, 89 F.3d 1185, 1195 n.16 (5th Cir. 1996).

 14
he committed the two predicate racketeering acts of arson of the Jefferson Street Pancake House and attempted arson of Central Motors.

Tawalbeh, Obadya, and Rayed assert that the Government's evidence

was insufficient to convict them of using a destructive device during

and in relation to a crime of violence, in violation of 18 U.S.C.A.

§ 924(c) (West Supp. 1999) and 18 U.S.C.A.§ 2 (West 1969), relating to the arson of the Corner Store.

When reviewing a sufficiency-of-the-evidence claim, we will sustain the jury's verdict "if there is substantial evidence, taking the view

most favorable to the Government, to support it." Glasser v. United

States, 315 U.S. 60, 80 (1942). "[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." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc). With this standard of review in mind, we address Appellants'

arguments seriatim.

A.

Joseph, Amar, Obadya, and Rayed first argue that the Government's evidence was insufficient to convict them of the substantive

RICO offense, 18 U.S.C.A. § 1962(c) (West 1984), and of RICO conspiracy, 18 U.S.C.A. § 1962(d) (West Supp. 1999), because the evidence did not demonstrate that they acted as a continuing unit with

a common purpose. Rather, these Appellants argue, the evidence

demonstrated that each Appellant acted in his own self-interest.

Joseph similarly contends that his verdicts of acquittal on Counts Five

through Twelve indicate that the jury rejected all evidence that suggested that he associated with the other Appellants in the period

between the attempted arson of Central Motors in 1992 and the arson

of the Jefferson Street Pancake House in 1995, and, furthermore, that

there is no evidence that he conspired with any other members of the

Abed family with regard to the pancake house arson. Joseph thus

asserts that the predicate acts the jury found that he committed had

no connection to the alleged enterprise. Also along those lines, Amar,

Obadya, and Rayed argue that the predicate acts the jury found that

they committed -- drug conspiracy and the arson of the Corner Store

-- do not form a pattern of racketeering activity because they had no

relation to each other. The goal of the arson at the Corner Store, these

 15
Appellants contend, was to eliminate lawful competition, not to facilitate the drug conspiracy.

The substantive RICO statute 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.

18 U.S.C.A. § 1962(c). An "enterprise" is a "group of persons associated together for a common purpose of engaging in a course of conduct," which may be proved "by evidence of an ongoing organization,

formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576,

583 (1981). This Court has noted that a RICO enterprise is characterized by "continuity, unity, shared purpose, and identifiable structure."

United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) (internal quotation marks omitted).

A "pattern of racketeering activity" requires"at least two acts of

racketeering activity" occurring within a ten-year period, 18 U.S.C.A.

§ 1961(5) (West 1984), that are related and amount to or pose a threat

of continued criminal activity, see H.J. Inc. v. Northwestern Bell Tel.

Co., 492 U.S. 229, 239 (1989). Predicate racketeering acts are related

if they "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." Id. at 240. The

relatedness requirement is satisfied so long as the Government shows

that the predicate acts are related to the affairs of the enterprise, even

if the acts are not directly related to each other. See United States v.

Masters, 924 F.2d 1362, 1366 (7th Cir. 1991); United States v.

Angiulo, 897 F.2d 1169, 1180 (1st Cir. 1990); United States v.

Indelicato, 865 F.2d 1370, 1383 (2d Cir. 1989). Continuity may be

shown by "a closed period of repeated conduct, or. . . past conduct

that by its nature projects into the future with a threat of repetition."

H.J. Inc., 492 U.S. at 241. "In other cases the threat of continuity may

 16
be established by showing that the predicate acts or offenses are part

of an ongoing entity's regular way of doing business." Id. at 242.

As an initial matter, we conclude that viewing the record in the

light most favorable to the Government, substantial evidence supports

the conclusion that Appellants acting in concert constituted a racketeering enterprise. The Government presented evidence that "the

boys" committed several burglaries and either gave or sold the stolen

goods to Joseph and Abedjalil and that "the boys" sold drugs and

robbed customers at businesses owned by Joseph and Abedjalil. The

Government also presented evidence that Joseph, Abedjalil, and Tawalbeh used arson to gain insurance money and to intimidate business

rivals, and that they recruited "the boys" to commit these arsons. This

evidence is sufficient for a reasonable factfinder to conclude that

Appellants constituted an ongoing organization with a definite structure, with Joseph, Abedjalil, and Tawalbeh giving orders and "the

boys" executing them, and that Appellants possessed the shared purpose of enriching the members of the enterprise and preserving the

power of the enterprise.

Viewing the record in the light most favorable to the Government,

we conclude that substantial evidence supports the conclusion that

Joseph was associated with the Abed organization. The Government

introduced evidence that "the boys" burglarized cars in Tolley's Bar

and brought the stolen goods to Joseph for resale at his pancake

house. This evidence is sufficient for a reasonable factfinder to conclude that Joseph had an ongoing association with"the boys," and by

implication, with the enterprise. The attempted arson of Central

Motors and the arson of the Jefferson Street Pancake House provide

a further connection between Joseph and the enterprise, namely that

arson was one of the enterprise's favorite ways to get insurance

money and deal with business rivals. The fact that the jury did not

find that any member of the enterprise conspired with Joseph to commit the arson of the pancake house is irrelevant because the RICO

statute does not require that a defendant commit a predicate act with

another individual. Moreover, this arson evidence is sufficient to support a reasonable factfinder's conclusion that because each predicate

act occurred shortly after Joseph received an eviction notice from the

person about to take possession of his property, these acts were

related in purpose. Moreover, because arson was one of the enter-

 17
prise's regular ways of doing business, the continuity requirement

was satisfied. Accordingly, we hold that the Government's evidence

was sufficient to convict Joseph of the substantive RICO offense, 18

U.S.C.A. § 1962(c).

Viewing the record in the light most favorable to the Government,

we conclude that substantial evidence supports the conclusion that the

drug conspiracy and the arson of the Corner Store constituted a pattern of racketeering activity. The Corner Store was a competitor of

Speedway Market, which was owned by Tawalbeh. The Government

presented evidence that the Abed organization engaged in drug dealing and food stamp fraud at Speedway Market. This evidence is sufficient to support a reasonable factfinder's conclusion that the drug

conspiracy and the Corner Store arson were both related to the affairs

of the enterprise because the arson was committed to eliminate a competitor of Speedway Market that threatened the illegal ventures of the

enterprise. Because arson was one of the enterprise's regular ways of

doing business, the continuity requirement was satisfied. Accordingly,

we hold that the Government's evidence was sufficient to convict

Amar, Obadya, and Rayed of the substantive RICO offense, 18

U.S.C.A. § 1962(c).

Finally, the RICO conspiracy statute provides that"[i]t shall be

unlawful for any person to conspire to violate" the RICO statute. 18

U.S.C.A. § 1962(d). "To prove a RICO conspiracy the government

must establish (1) that two or more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed

to the overall objective of the RICO offense." United States v.

Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998). Because the evidence viewed in the light most favorable to the Government was sufficient to support the convictions of Joseph, Amar, Obadya, and

Rayed on the substantive RICO count, and, moreover, was sufficient

to show that each of these Appellants knew about and agreed to facilitate the substantive RICO offense, we hold that the Government's

evidence was sufficient to support their convictions for RICO conspiracy under § 1962(d). See United States v. Salinas, 118 S. Ct. 469,

478 (1997); see also United States v. Starrett , 55 F.3d 1525, 1549

(11th Cir. 1995) (holding that because evidence was sufficient to support defendants' convictions under § 1962(c), and the jury could infer

from the evidence that defendants each manifested an agreement to

 18
participate in the affairs of the RICO enterprise through a pattern of

racketeering activity, the evidence was sufficient to support defendants' convictions for RICO conspiracy under § 1962(d)).

B.

Joseph also asserts that the Government's evidence was insufficient

for the jury to find that he committed Racketeering Act Fourteen,

arson of the Jefferson Street Pancake House, and Racketeering Act

Six, attempted arson of Central Motors. With regard to the pancake

house arson, Joseph argues that the evidence adduced at trial revealed

that the owner of the building had a greater motive and opportunity

to commit the arson than did Joseph. In particular, Joseph argues that

he personally did not have an incentive to burn the pancake house to

terminate the lease because the lease was already breached by his failure to pay rent. Moreover, Joseph asserts that the owner also had keys

to the building and received a direct and significant benefit from the

fire in the form of insurance benefits and proceeds from the subsequent sale of the property. With regard to the attempted arson of Central Motors, Joseph argues that the only witness who implicated him

in this crime was Ottallah, whose testimony was not credible as evidenced by the jury's acquittal of Joseph on Counts Five through

Twelve and of Thaier on Counts One and Four.7 Joseph further argues

that Jones's testimony clearly established that Joseph was not

involved in any manner with the attempted arson of Central Motors.

Viewed in the light most favorable to the Government, the evidence is sufficient to support a reasonable factfinder's conclusion that

Joseph committed the arson of the Jefferson Street Pancake House.

The pancake house's business was failing and Joseph was having difficulty paying food service creditors. According to the terms of the

lease, if Joseph defaulted he would be liable for the full amount of

rent due. A rent abatement clause, however, provided that if the building was destroyed by an accidental fire, Joseph would not be in

default and the lease payments would cease. Moreover, Joseph pos-

_________________________________________________________________

7 Joseph also argues that the jury's acquittal of Thaier on Count Three,

conspiracy to commit arson of Central Motors, indicates that Ottallah's

testimony was not credible. In fact, the jury convicted Thaier on Count

Three.

 19
sessed a $50,000 insurance policy on the contents of the restaurant.

Joseph also possessed a key to the building and the assistant fire marshal concluded that the arson was an inside job. Finally, the arson of

the pancake house was strikingly similar to the attempted arson of

Central Motors, in that each occurred shortly after Joseph learned he

would be evicted. Accordingly, we hold that the evidence was sufficient for the jury to find that Joseph committed Racketeering Act

Fourteen, arson of the Jefferson Street Pancake House.

Viewed in the light most favorable to the Government, the evidence also is sufficient to support a reasonable factfinder's conclusion

that Joseph was involved in the attempted arson of Central Motors.

Joseph was enraged at the owner of Central Motors for purchasing his

property. Moreover, as previously noted, the attempted arson of Central Motors was strikingly similar to the arson of the Jefferson Street

Pancake House. Joseph's argument again rests upon his contention

that the only witness who implicated him in this crime, Ottallah, was

not credible as evidenced by the jury's rejection of Ottallah's testimony with regard to other counts involving Joseph and Thaier. This

Court, however, does not review the credibility of witnesses when

evaluating whether sufficient evidence existed to support a conviction. See United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir.

1997). Moreover, a defendant cannot challenge his conviction merely

because it is inconsistent with a verdict of acquittal on another count.

See United States v. Powell, 469 U.S. 57, 62-64 (1984). As the

Supreme Court noted in Powell, it is possible that inconsistent verdicts are a product of a jury's "mistake, compromise, or lenity." 469

U.S. at 65. Accordingly, we hold that the evidence was sufficient for

the jury to find that Joseph committed Racketeering Act Six, the

attempted arson of Central Motors.

C.

Tawalbeh, Obadya, and Rayed argue that the Government's evidence was insufficient to convict them of using a destructive device

during and in relation to a crime of violence, in violation of 18

U.S.C.A. § 924(c) (West Supp. 1999) and 18 U.S.C.A. § 2 (West

1969), relating to the arson of the Corner Store. These Appellants do

not dispute that the arson itself satisfies the elements of § 924(c).

Rather, Tawalbeh argues that he could not be convicted as a principal

 20
because he had no direct involvement with the Molotov cocktail and

could not be convicted as an aider and abettor because he did not

directly facilitate or encourage the use of a Molotov cocktail. Moreover, Tawalbeh asserts, he could not be convicted under a Pinkerton

theory of vicarious liability because the use of a Molotov cocktail was

never discussed in his presence and was not reasonably foreseeable.8

Obadya and Rayed argue that the Government failed to prove that

either of them individually "used" the Molotov cocktail in the arson,

and moreover, they could not be convicted under the Pinkerton doctrine of co-conspirator liability because that doctrine applies only to

substantive offenses and § 924(c) is a sentence enhancement provision.

A defendant may be found guilty of aiding and abetting a § 924(c)

violation if the defendant "participat[es] at some stage [of the illegal

venture] accompanied by knowledge of the result and intent to bring

about that result." United States v. Wilson , 135 F.3d 291, 305 (4th

Cir.) (internal quotation marks omitted), cert. denied, 118 S. Ct. 1852

(1998). The defendant need not be present at every stage of the illegal

venture. See id. Indeed, the defendant need not even be present when

the crime is committed to be guilty of aiding and abetting. See United

States v. Ellis, 121 F.3d 908, 924 (4th Cir. 1997). Moreover, contrary

to Appellants' argument, a defendant may be convicted of a § 924(c)

violation on the basis of Pinkerton liability if the use of a firearm

"was in furtherance of the conspiracy and was reasonably foreseeable

to the defendant." Wilson, 135 F.3d at 305.

Viewing the record in the light most favorable to the Government

with regard to Tawalbeh, we conclude that substantial evidence supports Tawalbeh's conviction for violating § 924(c) under either an

aider-and-abettor theory or a Pinkerton theory. Michael Witt, a customer of the Speedway Market, testified that Tawalbeh asked him to

burn down the Corner Store "several times" and told him to use a

Molotov cocktail to do so. According to Chisom, the conspirators had

_________________________________________________________________

8 In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme

Court upheld the conviction of a defendant for acts committed by the

defendant's co-conspirator that were "done in furtherance of the conspiracy" and that could have been "reasonably foreseen as a necessary and

natural consequence of the conspiracy." Id. at 647-48.

 21
a meeting with Tawalbeh a week before the Corner Store fire and

conversed in Arabic. Amar subsequently translated the conversation

for Chisom, informing him that Tawalbeh wanted the Corner Store

burned because it was taking away business from the Speedway Market, that he would pay $2,000 for the job, and that the Corner Store

would be burned with a Molotov cocktail. This testimony is sufficient

to support a reasonable factfinder's conclusion that Tawalbeh participated at the planning stage in the illegal use of a Molotov cocktail,

had knowledge of the result, and intended to bring about that result.

In any event, under a Pinkerton theory of liability, it was certainly

reasonably foreseeable to Tawalbeh that the conspirators would use

a Molotov cocktail to burn down the Corner Store and that the

destruction of a competitor, the Corner Store, was in furtherance of

the conspiracy. Accordingly, we hold that the Government's evidence

was sufficient to convict Tawalbeh of using a destructive device during and in relation to a crime of violence, in violation of 18 U.S.C.A.

§ 924(c) and 18 U.S.C.A. § 2.

Viewing the record in the light most favorable to the Government

with regard to Obadya and Rayed, we conclude that substantial evidence supports Obadya's and Rayed's convictions for violating

§ 924(c) as aiders and abettors. According to Chisom's testimony,

Rayed constructed the Molotov cocktail and drove the conspirators to

the Corner Store, and Obadya served as a lookout during the commission of the arson. This testimony is certainly sufficient to support a

reasonable factfinder's conclusion that Obadya and Rayed participated in the illegal use of a Molotov cocktail, had knowledge of the

result, and intended to bring about that result. Because substantial evidence supports Obadya's and Rayed's conviction under an aider-andabettor theory, it is wholly irrelevant that neither of them individually

"used" the Molotov cocktail in the Corner Store arson. Accordingly,

we hold that the Government's evidence was sufficient to convict

Obadya and Rayed of aiding and abetting the use of a destructive

device during and in relation to a crime of violence, in violation of

18 U.S.C.A. § 924(c) and 18 U.S.C.A. § 2.

IV.

Finally, several Appellants argue that the district court erred at sentencing. Joseph argues that the district court erred in (1) setting his

 22
base offense level at 24, pursuant to U.S.S.G. § 2K1.4(a)(1), and (2)

enhancing his offense level by four levels, pursuant to U.S.S.G.

§ 3B1.1(a). Amar argues that the district court erred in using his food

stamp fraud conviction as a prior offense in calculating the criminal

history portion of his guideline sentence. Finally, Tawalbeh, Obadya,

and Rayed argue that the district court erred in sentencing them to

mandatory, consecutive 30-year sentences under 18 U.S.C.A.

§ 924(c) for using a Molotov cocktail to commit the Corner Store

arson.

To give due deference to a district court's application of the Sentencing Guidelines, we review factual determinations for clear error

and legal questions de novo. See United States v. Blake, 81 F.3d 498,

503 (4th Cir. 1996). With this standard of review in mind, we address

these Appellants' sentencing claims seriatim.

A.

First, Joseph argues that the district court erred in setting his base

offense level at 24, pursuant to U.S.S.G. § 2K1.4(a)(1), based upon

its finding that the attempted arson of Central Motors created a substantial risk of death or serious bodily injury and that Joseph knowingly created that risk. Joseph reasons that the district court erred

because the attempted arson only involved a limited amount of gasoline on commercial property, no persons were on the property, and

Joseph instructed the participants not to set the fire until patrons at the

adjacent bar (Tolley's Bar) had left. Joseph contends that his clear

intent was to avoid danger to any customers of Central Motors or Tolley's Bar, and, therefore, because he did not knowingly create a substantial risk of death or serious bodily injury, the correct base offense

level should have been 20, pursuant to U.S.S.G.§ 2K1.4(a)(2).

Section 2K1.4(a)(1) of the Sentencing Guidelines provides that the

base offense level for arson will be 24 if the defendant knowingly created a substantial risk of death or serious bodily injury to any person

other than a participant in the offense. See U.S.S.G. § 2K1.4(a)(1).

The risk includes the risk to fire fighters and other emergency and law

enforcement personnel who respond to or investigate the fire. See

U.S.S.G. § 2K1.4, comment. (n.2). The term"knowingly" is not

defined in the Guidelines. See United States v. Karlic, 997 F.2d 564,

 23
569 (9th Cir. 1993). In the past, the Supreme Court has looked to the

Model Penal Code definition of "knowledge" in interpreting a criminal statute. See Turner v. United States, 396 U.S. 398, 416 n.29

(1970); Leary v. United States, 395 U.S. 6, 46 n.93 (1969). Accordingly, we agree with several circuits that have applied the Model

Penal Code to define "knowingly" in § 2K1.4(a)(1) as being aware

that it is "practically certain" that the criminal act will result in a substantial risk of death or serious bodily injury. See United States v.

Johnson, 152 F.3d 553, 555-56 (6th Cir. 1998); United States v.

Altier, 91 F.3d 953, 957 (7th Cir. 1996); United States v. Honeycutt,

8 F.3d 785, 787 (11th Cir. 1993); Karlic, 997 F.2d at 569. Under this

standard, an attempted arson of commercial property containing automobiles with gasoline in their tanks warrants the application of

§ 2K1.4(a)(1), because a resulting fire would be massive and

extremely dangerous to the responding fire fighters. See Altier, 91

F.3d at 957; Honeycutt, 8 F.3d at 788. The application of

§ 2K1.4(a)(1) is also warranted where the fire occurred close to a

nearby dwelling and endangered the dwelling's inhabitants. See

Johnson, 152 F.3d at 557.

In the present case, the Central Motors parking lot contained several automobiles, all presumably containing gasoline, and a successful

arson attempt would have created a massive fire that would have

threatened the lives and safety of responding firefighters and policemen. Moreover, Central Motors was located near Joseph's apartment

complex behind Tolley's Bar, and a fire at Central Motors could easily have spread to those apartments and injured the residents. It is

therefore irrelevant that Joseph planned to set the fire when nobody

was on the Central Motors property and after all of Tolley's customers had left. Accordingly, we hold that the district court did not

clearly err in setting Joseph's base offense level at 24, pursuant to

§ 2K1.4(a)(1).

B.

Next, Joseph argues that the district court erred in enhancing his

offense level by four levels, pursuant to U.S.S.G.§ 3B1.1(a), based

upon its finding that he was an organizer and leader of an attempted

arson of Central Motors that included five or more participants --

Joseph, Ottallah, Jones, Amar, and Thaier. Joseph contends that Ottal-

 24
lah's testimony, upon which the district court relied, was not credible

as evidenced by the jury's acquittal of Thaier on Counts One and

Four. Joseph argues that the only credible witness, Jones, established

that only four individuals participated in the attempted arson of Central Motors, and Joseph was not one of them.

Section 3B1.1(a) of the Sentencing Guidelines provides for an

enhancement of a defendant's offense level by four levels when the

defendant was an organizer or leader of a criminal activity that

involved five or more participants. See U.S.S.G. § 3B1.1(a). Ottallah

testified at trial that Joseph directed him, Amar, Thaier, and Jones to

burn Central Motors. Jones testified that Amar and Ottallah ordered

him and Thaier to slash tires at Central Motors, that he and Thaier followed this instruction, and that he, Amar, and Ottallah obtained gas

to burn Central Motors. Although Jones's testimony did not directly

implicate Joseph, the district court could find Ottallah's testimony

credible, see United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.

1995), and a district court's factual finding made on the basis of conflicting evidence is not reversible, see United States v. Falesbork, 5

F.3d 715, 721 (4th Cir. 1993). Accordingly, we hold that the district

court did not clearly err in enhancing Joseph's offense level by four

levels, pursuant to § 3B1.1(a), based upon his leadership or organizing role in the attempted arson of Central Motors.

C.

Amar argues that the district court erred in using his food stamp

fraud conviction as a prior offense in calculating the criminal history

portion of his guideline sentence. Amar contends that because the

food stamp offense occurred during the time the racketeering was

alleged to be occurring, and evidence of this offense was presented

to the jury as evidence of racketeering, the food stamp fraud was relevant conduct that was part of the instant offense, and, thus, should not

have been considered as a prior offense.

Section 4A1.1 of the Sentencing Guidelines provides that a district

court should use a defendant's prior sentence of imprisonment in calculating his criminal history. See U.S.S.G.§ 4A1.1. Section

4A1.2(a)(1) of the Sentencing Guidelines defines a"prior sentence"

as "any sentence previously imposed . . . for conduct not part of the

 25
instant offense." U.S.S.G. § 4A1.2(a)(1)."Conduct that is part of the

instant offense means conduct that is relevant conduct to the instant

offense under the provisions of § 1B1.3 (Relevant Conduct)."

U.S.S.G. § 4A1.2(a)(1), comment. (n.1). A conviction is properly

considered a prior sentence under § 4A1.2(a)(1) if the prior sentence

and present offense "involve conduct that is severable into two distinct offenses." United States v. McManus, 23 F.3d 878, 888 (4th Cir.

1994). Whether the prior sentence and present offense are severable

requires a fact-specific inquiry that requires consideration of "the temporal and geographical proximity of the two offenses, common victims, and a common criminal plan or intent." United States v.

Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992).

In the present case, Amar's food stamp trafficking conviction is a

severable, distinct offense from the racketeering offense because the

racketeering offense was a complex crime that included a distinct

organizational structure, had numerous participants, and lasted much

longer than the food stamp fraud crime. Moreover, the racketeering

offense and the food stamp fraud crime had different victims and did

not have a common plan. Accordingly, we hold that the district court

did not err in using Amar's food stamp trafficking convictions in calculating his criminal history.

D.

Tawalbeh, Obadya, and Rayed argue that the district court erred in

sentencing them to mandatory, consecutive thirty-year sentences

under 18 U.S.C.A. § 924(c) for using a Molotov cocktail to commit

the Corner Store arson. These Appellants basically reiterate their

arguments, see ante Part III.C, that they cannot be found guilty under

a vicarious liability theory, even by a preponderance of the evidence,

because the Pinkerton doctrine does not apply to a sentence enhancement provision such as § 924(c). These Appellants conclude that their

sentences must be vacated for resentencing.

Section 2K2.4(a) of the Sentencing Guidelines provides that the

term of imprisonment for a violation of § 924(c) is that required by

statute. See U.S.S.G. § 2K2.4(a). Section 924(c)(1)(B)(ii) provides

that a person who uses or carries a "destructive device" during and in

relation to a crime of violence "shall be sentenced to a term of impris-

 26
onment of not less than 30 years" in addition to the punishment provided by the crime of violence. 18 U.S.C.A. § 924(c)(1)(B)(ii) (West

Supp. 1999). A "destructive device" in turn is defined in relevant part

as:

[A]ny explosive, incendiary, or poison gas--

 (i) bomb,

 (ii) grenade,

 (iii) rocket having a propellant charge of more than four

ounces,

 (iv) missile having an explosive or incendiary charge of

more than one-quarter ounce,

 (v) mine, or

 (vi) device similar to any of the devices described in the

preceding clauses.

18 U.S.C.A. § 921(a)(4)(A) (West 1976). A Molotov cocktail -- a

device comprising a bottle, gasoline, and a rag-- is a "destructive

device" under this definition. See United States v. Simmons, 83 F.3d

686, 687-88 (4th Cir. 1996) (holding that Molotov cocktail was a "destructive device" under a virtually identical definition in another statute).

We have already concluded that viewed in the light most favorable

to the Government, the evidence is sufficient to support the convictions of Tawalbeh, Obadya, and Rayed under § 924(c) for using a

Molotov cocktail in the arson of the Corner Store under either an

aider-and-abettor theory or a Pinkerton theory. See ante Part III.C.

Having upheld their convictions, we conclude that the district court

did not clearly err in finding them guilty under§ 924(c) by a preponderance of the evidence. Accordingly, we hold that the district court

did not clearly err in imposing consecutive thirty-year sentences on

Tawalbeh, Obadya, and Rayed.

 27
V.

For the reasons discussed, we find no error at the trial or sentencing

phases of the criminal proceeding against Appellants. We therefore

affirm Appellants' convictions and sentences.

AFFIRMED

 28