UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4499

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHNNIE BUTLER,

Defendant – Appellant. 

No. 10-4566

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CALVIN WRIGHT, a/k/a Turkey,

Defendant – Appellant.

Appeals from the United States District Court for the District 

of Maryland, at Baltimore. Benson Everett Legg, District Judge. 

(1:08-cr-00381-BEL-1; 1:08-cr-00381-BEL-2)

Submitted: May 2, 2011 Decided: May 18, 2011

Before MOTZ, SHEDD, and AGEE, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

Thomas J. Saunders, Baltimore, Maryland; James Wyda, Federal 

Defender, Meghan S. Skelton, Staff Attorney, Greenbelt, 

Maryland, for Appellants. Rod J. Rosenstein, United States 

Attorney, Christine Celeste, Special Assistant United States 

Attorney, Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Johnnie Butler and Calvin Wright appeal their 

convictions following a jury trial. Both men were convicted of 

conspiracy to distribute and possess with intent to distribute 

controlled substances, in violation of 21 U.S.C. § 846 (2006) 

(Count One); possession of a firearm in furtherance of a 

drug-trafficking crime, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(i) (2006) (Count Three); and possession of a 

firearm after a felony conviction, in violation of 18 U.S.C. 

§ 922(g) (2006) (Count Four). Additionally, Wright was 

convicted of possession of heroin, with intent to distribute, in 

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006) (Count 

Five). The court sentenced Butler to life imprisonment and 

Wright to 420 months’ imprisonment. We affirm.

Wright argues that the evidence was not sufficient to 

support the jury’s finding that he possessed the heroin found in 

his apartment. This court reviews a sufficiency-of-the-evidence 

challenge by determining whether, viewing the evidence in the 

light most favorable to the Government, any rational trier of 

fact could find the essential elements of the crime beyond a 

reasonable doubt. United States v. Collins, 412 F.3d 515, 519 

(4th Cir. 2005). Our review of the evidence convinces us that 

the evidence adduced at trial was sufficient to establish that 

Wright possessed the heroin and intended to distribute it. 
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Wright and Butler argue that the district court erred 

in denying their motion for a mistrial after a court security 

officer made comments to the jury regarding the origin of a 

firearm. “[D]enial of a defendant’s motion for a mistrial is 

within the sound discretion of the district court and will be 

disturbed only under the most extraordinary of circumstances.” 

United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). 

Given the brief nature of the comments at issue here and the 

curative instruction given by the court, we find that the 

district court did not abuse its discretion in denying 

Appellants’ motion for a mistrial.

Butler argues that because the jury acquitted him of

possession and discharge of a firearm, causing the death of 

Fernando Rodriguez, in furtherance of a drug-trafficking crime, 

the court erred by taking that conduct into account during 

Butler’s sentencing. However, conduct for which a defendant has 

been acquitted may nonetheless be considered by the district 

court in determining a sentence, so long as the conduct is 

established by a preponderance of the evidence. United 

States v. Young, 609 F.3d 348, 357 (4th Cir. 2010). Here, the 

Government provided sufficient evidence upon which the district 

court could base its finding that Butler had caused Rodriguez’s 

death by a preponderance of the evidence, even if such evidence 

was not sufficient to establish the offense charged beyond a 
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reasonable doubt. Accordingly, the court did not err in taking 

such conduct into account during sentencing.

Finally, Butler argues that the district court erred 

in finding that Butler was an organizer or leader of the 

criminal activity, pursuant to U.S. Sentencing Guidelines Manual

§ 3B1.1, and accordingly applying a sentencing enhancement. We 

review this determination for clear error. See United States v. 

Slade, 631 F.3d 185, 188 (4th Cir. 2011); United States v. 

Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). We find that the 

district court did not clearly err because the enhancement is 

supported by evidence in the record.

We therefore affirm the convictions and sentences of 

Butler and Wright. We deny Wright’s motion to file a pro se 

supplemental brief and deny Butler’s motion for summary 

reversal. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED