UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4894

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRANCE NATHANIEL BROWN, JR., a/k/a War, a/k/a War Stone, a/k/a 

Luciano, a/k/a King Riko,

Defendant - Appellant.

No. 20-4107

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CLIFFORD ALEXANDER JENNINGS, a/k/a Big Cliff, a/k/a Wolverine, a/k/a 

Ethiopia, a/k/a Certified, a/k/a Mr. Certified,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at 

Norfolk. Raymond A. Jackson, District Judge. (2:17-cr-00150-RAJ-RJK-2; 2:17-cr00150-RAJ-RJK-3)
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Submitted: March 31, 2021 Decided: October 20, 2021

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Andrew M. Stewart, DENNIS, STEWART & KRISCHER, PLLC, Arlington, Virginia; 

Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT 

& WOODWARD, P.C., Virginia Beach, Virginia, for Appellants. G. Zachary Terwilliger, 

United States Attorney, Raj Parekh, Acting United States Attorney, Daniel T. Young, 

Assistant United States Attorney, Alexandria, Virginia, Joseph E. DePadilla, Assistant 

United States Attorney, Norfolk, Virginia, Megan Montoya, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Terrance Nathaniel Brown, Jr. and Clifford Alexander Jennings were charged in the 

Eastern District of Virginia with a racketeering conspiracy and various drug and firearm 

offenses, which are related to convictions previously obtained against Brown and Jennings 

in the Western District of Virginia. In this case, a jury convicted Brown of four counts of 

distribution of, or possession with intent to distribute, marijuana or clonazepam, in 

violation of 21 U.S.C. § 841(a)(1). The court sentenced Brown to 36 months’ 

imprisonment, to run concurrently with the sentence imposed in the Western District of 

Virginia on the related counts. The jury convicted Jennings of seven counts of distribution 

of heroin, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted 

felon, in violation of 18 U.S.C. §§ 2, 922(g)(1); and transfer of a firearm to a prohibited 

person, in violation of 18 U.S.C. § 922(d)(1). The court sentenced Jennings to 96 months’ 

imprisonment, consisting of 60 months on the drug distribution counts, to run concurrently 

with his prior sentence from the Western District of Virginia, and 36 months on the firearm 

counts, concurrent to each other but consecutive to both the sentence for the drug counts 

and the sentence he already was serving in the Western District of Virginia.

On appeal, Brown challenges the sufficiency of the evidence to support his 

convictions and disputes the district court’s decision to impose a Sentencing Guidelines 

enhancement for possession of a firearm, pursuant to U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (2018). In his original appellate briefs, Jennings challenges the district 

court’s decision to run the sentence imposed for his firearm offenses consecutive to his 

prior sentence in the Western District of Virginia. 
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Following review of the parties’ submissions, we directed the parties to provide 

supplemental briefs addressing: (1) whether United States v. Provance, 944 F.3d 213 (4th 

Cir. 2019), requires this Court to consider any error in a sentence under United States v. 

Rogers, 961 F.3d 291 (4th Cir. 2020), before reviewing the substantive reasonableness of 

the sentence; and (2) whether Jennings’ criminal judgment violates Rogers. Finding no 

error in Brown’s convictions and sentence, we affirm his criminal judgment. However, we 

vacate Jennings’ sentence and remand for resentencing.

I.

Brown first asserts that the evidence at trial was insufficient to support his 

convictions under § 841(a)(1). “We must sustain a guilty verdict if, viewing the evidence 

in the light most favorable to the prosecution, the verdict is supported by substantial 

evidence.” United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “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. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015) (internal quotation marks 

omitted). In undertaking this review, we will not “resolve conflicts in the testimony” or 

“weigh the evidence,” Musacchio v. United States, 577 U.S. 237, 243 (2016) (internal 

quotation marks omitted); see Burfoot, 899 F.3d at 334, but will “allow the government all 

reasonable inferences that could be drawn in its favor,” United States v. Harvey, 532 F.3d 

326, 333 (4th Cir. 2008). We also must “remain mindful that a conviction may rely entirely 

on circumstantial evidence.” United States v. Hassan, 742 F.3d 104, 139 (4th Cir. 2014) 

(internal quotation marks omitted). “A defendant who brings a sufficiency challenge bears 
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a heavy burden, as appellate reversal on grounds of insufficient evidence is confined to 

cases where the prosecution’s failure is clear.” United States v. Savage, 885 F.3d 212, 219 

(4th Cir. 2018) (internal quotation marks omitted).

Counts 17 and 18 required proof that Brown (1) “knowingly or intentionally 

distributed the controlled substance alleged in the indictment, and (2) at the time of such 

distribution . . . knew that the substance distributed was a controlled substance under the 

law.” United States v. Howard, 773 F.3d 519, 526 (4th Cir. 2014) (internal quotation marks 

omitted). Counts 19 and 20 required proof that Brown “(1) possessed [the] controlled 

substance [alleged in the indictment]; (2) knew of the possession; and (3) intended to 

distribute the controlled substance.” United States v. Ath, 951 F.3d 179, 188 (4th Cir.), 

cert. denied, 140 S. Ct. 2790 (2020). Our review of the trial transcript—particularly the 

testimony of Detective Gillespie and Investigator Wosk regarding the events of August 27 

and 28, 2015—provides ample evidence to support these convictions.

Brown’s arguments to the contrary are unpersuasive. Brown argues that he lacked 

the requisite knowledge regarding the controlled substances he distributed, as he offered to 

sell Gillespie Xanax, not clonazepam. “[W]hile the statute requires specific intent to 

distribute a controlled substance or to possess with intent to distribute a controlled 

substance, it does not require that the defendant have, within that intent, specific 

knowledge of the controlled substance or any of the [chemical components] that constitute 

the controlled substance.” United States v. Ali, 735 F.3d 176, 186 (4th Cir. 2013); see 

United States v. Brower, 336 F.3d 274, 277 (4th Cir. 2003). Circumstantial evidence 

permitted the jury to infer that Brown possessed the requisite mens rea, even if he 
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incorrectly believed that he was distributing or attempting to distribute a different 

controlled substance. Although Brown also points to Gillespie’s misidentification of 

Brown at trial, the jury was presented with adequate additional evidence establishing 

Brown’s identity as the individual who sold the drugs in question. We therefore readily

conclude that substantial evidence supports Brown’s convictions under § 841(a). 

II.

Turning to Brown’s challenge to the USSG § 2D1.1(b)(1) enhancement, we review 

the district court’s legal determinations de novo and its factual findings for clear error. See 

United States v. Dennings, 922 F.3d 232, 235 (4th Cir. 2019). A factual finding is clearly 

erroneous when, “although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been committed.” 

United States v. Wooden, 887 F.3d 591, 602 (4th Cir. 2018) (internal quotation marks 

omitted). “If the district court’s account of the evidence is plausible in light of the record 

viewed in its entirety, the court of appeals may not reverse it even though convinced that 

had it been sitting as the trier of fact, it would have weighed the evidence differently.” 

United States v. Ferebee, 957 F.3d 406, 417 (4th Cir. 2020) (internal quotation marks 

omitted).

In drug offenses, the Guidelines provide for a two-level enhancement “[i]f a 

dangerous weapon (including a firearm) was possessed.” USSG § 2D1.1(b)(1). The 

enhancement “reflects the increased danger of violence when drug traffickers possess 

weapons” and “should be applied if the weapon was present, unless it is clearly improbable 

that the weapon was connected with the offense.” USSG § 2D1.1 cmt. n.11(A). The 
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Government bears “the initial burden of proving possession of a weapon in connection with 

drug activities by a preponderance of the evidence.” United States v. Bolton, 858 F.3d 905, 

912 (4th Cir. 2017) (internal quotation marks omitted). “The enhancement is proper when 

the weapon was possessed in connection with drug activity that was part of the same course 

of conduct or common scheme as the offense of conviction.” United States v. Slade, 631 

F.3d 185, 189 (4th Cir. 2011) (internal quotation marks omitted). Establishing the requisite 

nexus requires the Government to “prove only that the weapon was present, which it may 

do by establishing a temporal and spatial relation linking the weapon, the drug trafficking 

activity, and the defendant.” United States v. Mondragon, 860 F.3d 227, 231 (4th Cir. 

2017) (internal quotation marks omitted). 

“[T]he burden of showing something by a preponderance of the evidence . . . simply 

requires the trier of fact to believe that the existence of a fact is more probable than its 

nonexistence.” United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal 

quotation marks omitted). “[T]he Government is entitled to rely on circumstantial evidence 

to carry its burden” with respect to the enhancement. Id. at 629.

We conclude that the district court did not clearly err in finding that Brown 

possessed a weapon during his interaction with Gillespie. Rather, considered in light of 

the totality of the evidence before the court, Gillespie’s testimony supports an inference 

that Brown threatened to shoot Gillespie during their drug transaction and possessed the 

immediate ability to do so. Viewed through the lens of Gillespie’s extensive experience,

and coupled with evidence of Brown’s willingness to use firearms to intimidate and enforce 

compliance during drug sales within the time period of the transaction, Gillespie’s 
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observations provide sufficient support for the court’s factual finding. See Mondragon, 

860 F.3d at 232. We are unpersuaded by Brown’s attempt to analogize to United States v. 

McAllister, 272 F.3d 228 (4th Cir. 2001), as we find that case readily distinguishable on its 

facts. Thus, we find no error in Brown’s Guideline calculation.

III.

Finally, Jennings argues that the district court imposed a procedurally and 

substantively unreasonable sentence by running the sentence imposed for Counts 24 and 

25 consecutive to the sentence he previously received in the Western District of Virginia 

on related counts. Jennings contends that the district court insufficiently explained its 

decision to impose a partially consecutive sentence and that the resulting sentence was 

greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors. As previously noted, we 

directed the parties to address, among other issues, whether Jennings’ sentence violates our 

intervening decision in Rogers.

1

We review a sentence for reasonableness, applying “a deferential abuse-ofdiscretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We first review the 

sentence for “significant procedural error,” such as incorrectly calculating the Guidelines

range, insufficiently considering the 18 U.S.C. § 3553(a) factors, or inadequately 

explaining the sentence imposed. See id. at 51. If we find no such procedural error, we 

1 Because Brown has not challenged either the validity of his supervised release 

conditions or the substantive reasonableness of his sentence—and, thus, his arguments 

implicate neither Rogers nor Provance—we decline to review Brown’s sentence for Rogers

error. See United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) (deeming issue not 

raised in opening brief waived). 
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review the substantive reasonableness of the sentence, “tak[ing] into account the totality of 

the circumstances to determine whether the sentencing court abused its discretion in 

concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United 

States v. Nance, 957 F.3d 204, 212 (4th Cir.) (internal quotation marks omitted), cert. 

denied, 141 S. Ct. 687 (2020). We reiterated in Provance that procedural reasonableness 

review is a threshold consideration, and we may proceed to substantive reasonableness 

review “if, and only if, we find the sentence procedurally reasonable.” Provance, 944 F.3d 

at 218 (alteration and internal quotation marks omitted).

In Rogers, we held that “all non-mandatory conditions of supervised release must 

be announced at a defendant’s sentencing hearing,” either directly or through express 

incorporation by reference. 961 F.3d at 296, 299. As the parties observe in their 

supplemental briefs, the district court did not comply with Rogers,

2 as the district court 

neither announced nor incorporated by reference the “standard” but discretionary 

supervised release conditions listed in Jennings’ written judgment. And, as the parties now 

agree, this procedural error requires us to vacate Jennings’ sentence in its entirety and 

remand for a full resentencing. See United States v. Singletary, 984 F.3d 341, 346 n.4 (4th 

Cir. 2021) (explaining that Rogers error requires full resentencing “given that custodial and 

supervised release terms are components of one unified sentence” (alteration and internal 

quotation marks omitted)). 

2 We note that the district court did not have the benefit of Rogers when it sentenced 

Jennings. 
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In light of the Government’s concessions, we need not resolve whether Provance

generally requires us to consider a sentence for Rogers error sua sponte before reaching an 

appellant’s substantive reasonableness challenge. Even assuming, without deciding, that 

we have the discretion to consider the substantive reasonableness of Jennings’ custodial 

sentence notwithstanding the Rogers error, we decline to exercise our discretion to do so

here. As in Singletary, there is no need for us to examine Jennings’ remaining claims of 

procedural or substantive sentencing error because the Rogers error “[b]y itself . . . requires 

that we vacate [Jennings’] sentence and remand for the district court to conduct the 

sentencing anew.” Id. at 344. 

IV.

Accordingly, we affirm Brown’s criminal judgment, vacate Jennings’ sentence, and 

remand Jennings’ case to the district court for resentencing. 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 IN PART,

VACATED IN PART,

AND REMANDED