UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4891

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN BRANDON GRAY-SOMMERVILLE, 

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., District Judge. (3:13-cr-00107-RJC-1)

Submitted: June 12, 2015 Decided: July 15, 2015

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Jill 

Westmoreland Rose, Acting United States Attorney, Asheville, 

North Carolina, Anthony J. Enright, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North 

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Juan Brandon Gray-Sommerville (Gray-Sommerville) appeals 

his conviction following a jury trial on one count of sex 

trafficking a minor child in violation of 18 U.S.C. § 1591(a). 

The district court sentenced Gray-Sommerville to 225 months’

imprisonment. On appeal, Gray-Sommerville seeks vacature of his 

criminal judgment on numerous grounds. Finding no error, we 

affirm.

I.

Gray-Sommerville first challenges the sufficiency of the 

evidence to support his conviction on the single count of sex 

trafficking a minor child in violation of 18 U.S.C. § 1591(a). 

Because Gray-Sommerville failed to renew his Federal Rule of 

Criminal Procedure 29 motion for judgment of acquittal after he

introduced evidence in his own defense and because the district 

court did not reserve ruling on such motion at the close of the 

government’s case-in-chief, we review only for plain error. See

United States v. Whal, 290 F.3d 370, 373-75 (D.C. Cir. 2002) 

(failure to renew motion for judgment of acquittal at close of 

all evidence did not waive sufficiency of evidence challenge 

where district court reserved decision on motion for judgment of 

acquittal made at close of government’s case-in-chief until 

after case submitted to jury); United States v. Villasenor, 236 
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F.3d 220, 222 (5th Cir. 2000) (“[The defendant] moved for a 

judgment of acquittal at the close of the government’s case, but 

he did not renew the motion at the close of the evidence. As a 

result, his claims based on the sufficiency of the evidence are 

reviewable for plain error only.”). See also Fed. R. Crim. P. 

52(b) (“A plain error that affects substantial rights may be 

considered even though it was not brought to the court’s 

attention.”). To establish plain error, Gray-Sommerville must 

initially establish: (1) there was error; (2) the error was 

plain; and (3) the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993). Even if he 

establishes each of these three prongs of plain error review, 

before we may exercise our discretion to correct the error, we 

must be convinced that the error “seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks omitted) 

(alteration in original).

Gray-Sommerville cannot even get past the first prong of 

plain error review——i.e. establishing error. With respect to 

the elements of a § 1591(a)(1) offense as alleged in GraySommerville’s indictment, the district court instructed the jury

as follows:

For you to find the defendant guilty of this 

crime you must find beyond a reasonable doubt:
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One, that the defendant knowingly recruited, 

enticed, harbored, transported, provided, obtained or 

maintained by any means the person named in the 

indictment, that is I.P.

Two, that the defendant did so knowing or in 

reckless disregard of the fact that the person had not 

attained the age of 18 years and would be caused to 

engage in a commercial sex act.

And three, that the defendant’s act was in or 

affected interstate or foreign commerce.

(J.A. 568-69). Notably, Gray-Sommerville does not challenge on 

appeal the correctness of this jury instruction regarding the 

elements of his charged § 1591(a)(1) offense.

The district court did not err in failing to sua sponte

grant Gray-Sommerville judgment of acquittal at the close of all 

evidence in his trial “if, viewing the evidence in the light 

most favorable to the prosecution, the verdict is supported by 

substantial evidence.” United States v. Smith, 451 F.3d 209, 

216 (4th Cir. 2006) (internal quotation marks omitted). 

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.” 

Id. (internal quotation marks omitted). Moreover, “[t]he jury, 

not the reviewing court, weighs the credibility of the evidence 

and resolves any conflicts in the evidence presented.” United 

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

quotation marks omitted) (alteration in original).
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Gray-Sommerville acknowledges his participation in the 

recruitment, transportation, harboring, maintaining, obtaining, 

and enticement of I.P. to engage in a commercial sex act, but 

challenges as insufficient the evidence to support the jury’s 

finding that: (1) he knew or acted in reckless disregard of the 

fact that I.P. was less than eighteen years old; or (2) his 

conduct was in or affecting commerce. We have thoroughly 

reviewed the record and conclude substantial evidence supports 

the jury’s findings on both of these elements. With respect to 

whether Gray-Sommerville knew or acted in reckless disregard of 

the fact that I.P. was less than eighteen years old, the jury 

heard the testimony of Gray-Sommerville’s then current 

girlfriend, Araminta Brace (Brace). Brace testified that she 

and Gray-Sommerville met I.P. for the first time when they 

picked her up from her high school in Morganton, North Carolina

in a vehicle driven by Gray-Sommerville. Brace, who was sitting 

in the passenger seat, asked I.P., who was sitting in the 

backseat behind Gray-Sommerville, “‘Sweetie, how old are you?’” 

(J.A. 353). I.P. responded: “‘If I tell you he won’t want 

me.’” Id. “[Brace then] said, ‘Sweetie, it doesn’t matter what 

he wants. I just need to know how old you are.’” Id. I.P. 

responded, “‘Okay. I’m 16.’” Id. Gray-Sommerville then said: 

“‘Damn, she’s 16. Should we turn around?’” (J.A. 354). When 

Brace responded in the affirmative, Gray-Sommerville said: 
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“‘Nah, that’s a waste of my gas.’” Id. And so Gray-Sommerville

just kept traveling by vehicle toward Charlotte, North Carolina. 

This testimony by Brace is alone sufficient to support the 

jury’s finding that Gray-Sommerville knew or acted in reckless 

disregard of the fact that I.P. was less than eighteen years 

old. See United States v. Baker, 985 F.2d 1248, 1255 (4th Cir. 

1993) (“The law is well settled in this circuit that the 

uncorroborated testimony of an accomplice may be sufficient to 

sustain a conviction.”). Nonetheless, the jury also heard the 

testimony of Detective Michael Sardelis of the 

Charlotte-Mecklenburg Police Department that Gray-Sommerville 

confessed to him that he knew I.P. was under the age of eighteen 

when he arrived in Charlotte and took her to a hotel room prior 

to prostituting her. In sum, sufficient evidence supports the

first element challenged by Gray-Sommerville. Next, with 

respect to the interstate commerce element, the government’s 

evidence that Gray-Sommerville advertised I.P. on the Internet 

website www.Backpage.com is sufficient to satisfy this element. 

United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009) 

(“[I]t is beyond debate that the Internet and email are 

facilities or means of interstate commerce.”). Accordingly, 

Gray-Sommerville is not eligible for appellate relief from his 

conviction for the sex trafficking of a minor child in violation 

of 18 U.S.C. § 1591(a) on plain error review. 
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II.

Gray-Sommerville next challenges his conviction on the 

basis that his due process rights under the Fifth Amendment to 

the United States Constitution and his right to confront all 

witnesses against him under the Confrontation Clause of the 

Sixth Amendment to the United States Constitution were violated 

by the combination of the government’s announcement that it 

would call I.P. to testify during its case-in-chief, his 

reasonable reliance on such announcement, and then the 

government’s failure to do so. Relatedly, Gray-Sommerville 

further contends, relying on Crawford v. Washington, 541 U.S. 36 

(2004), that the government’s failure to call I.P. to testify 

during its case-in-chief violated his Sixth Amendment right to 

confront all witnesses against him. Because Gray-Sommerville 

failed to raise these arguments below, we review for plain error 

under Olano, 507 U.S. at 732.

With respect to the government’s failure to call I.P. to 

testify during its case-in-chief after allegedly announcing its 

intention to do so, Gray-Sommerville cannot get past the first 

prong of plain error review——i.e. he cannot establish the 

district court erred. Id. Critically, the record flatly belies 

Gray-Sommerville’s contention that the government announced to 

him and the district court that it would call I.P. to testify 

during its case-in-chief. Indeed, the record is clear that on 
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the morning of the start of trial, the government represented to 

Gray-Sommerville and the district court outside the presence of 

the jury that the government “may or may not call the victim.” 

(J.A. 179). The record is not in conflict on this point.

Moreover, Gray-Sommerville cannot establish the first prong 

of plain error review with respect to his contention, relying on 

Crawford, 541 U.S. at 36, that the government’s failure to call 

I.P. to testify during its case-in-chief violated his Sixth 

Amendment right to confront all witnesses against him. 

Gray-Sommerville did not suffer a Crawford error as he contends. 

In Crawford, the Supreme Court made clear the Sixth Amendment’s 

Confrontation Clause prohibits the introduction of out-of-court 

testimonial evidence used for establishing the truth of the 

matter asserted unless the witness is unavailable and the 

defendant has had a prior opportunity for cross-examination of 

such witness. Id. at 59 n.9, 68. Fatal to Gray-Sommerville’s 

contention is his failure to identify any statement by I.P. 

heard by the jury which was testimonial and/or was offered for 

the truth of the matter asserted. Moreover, our review of the 

record discloses none. Accordingly, Gray-Sommerville is 

entitled to no appellate relief with respect to his asserted

Crawford error.
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III.

Gray-Sommerville next argues the district court abused its 

discretion by admitting, over his objection, other act evidence 

that he advertised and transported a prostitute, whom he learned 

was a minor, just three months prior to meeting I.P. According 

to Gray-Sommerville, such evidence was only admitted to show he 

had bad character, and thus, must be guilty of his charged 

offense. See Fed. R. Evid. 404(b)(1) (“Evidence of a crime, 

wrong, or other act is not admissible to prove a person’s 

character in order to show that on a particular occasion the 

person acted in accordance with the character.”). 

Gray-Sommerville’s argument is without merit. We review the 

district court’s challenged evidentiary ruling for abuse of 

discretion. United States v. Basham, 561 F.3d 302, 325-26 (4th 

Cir. 2009). 

Immediately prior to the admission of the challenged 

evidence, which the government introduced through the testimony 

of two law-enforcement officers, the district court instructed 

the jury that it was “about to hear evidence presented from the 

government concerning alleged acts of the defendant which may 

be similar to the act charged in the indictment but which was 

committed on a different occasion.” (J.A. 411). The district 

court then instructed the jury that it could consider such 

evidence “only for the limited purposes” of “determin[ing] 
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whether the defendant had the state of mind or intent necessary 

to commit the crime charged in the indictment; whether he acted 

according to a plan or in preparation for the commission of a 

crime; and whether the defendant acted intentionally and not by 

mistake or accident.” (J.A. 412). 

Gray-Sommerville concedes that the challenged evidence was

relevant to the issue of his intent to commit the crime of child 

sex trafficking, i.e., relevant to the issue of his mental 

state, and thus satisfies the test for relevancy under Federal 

Rule of Evidence 401 and qualifies as a legitimate reason for 

admission under Federal Rule of Evidence 404(b)(2). He 

nonetheless contends that the challenged evidence was 

inadmissible because his intent was not at issue in his trial.

Gray-Sommerville’s contention is without merit. The mens

rea component of the § 1591(a) offense charged in 

Gray-Sommerville’s indictment required the government to prove 

beyond a reasonable doubt that Gray-Sommerville took the actions 

alleged in the indictment with respect to I.P. knowingly or in 

reckless disregard of the fact that I.P. had not attained the 

age of eighteen. As the district court instructed the jury

without objection by Gray-Sommerville, the word “‘knowingly’ as 

that term . . . has been used in these instructions means that 

the act was done voluntarily and intentionally, not because of 

mistake or accident.” (J.A. 569). Because Gray-Sommerville’s 
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intent was squarely at issue in his trial, the challenged 

evidence was admissible under Federal Rule of Evidence 404(b) to 

prove Gray-Sommerville acted intentionally with respect to the 

acts alleged in his indictment and not because of mistake or 

accident. See Fed. R. Evid. 404(b)(2) (evidence may be 

admissible to prove, inter alia, intent, absence of mistake, or 

lack of accident).

This brings us to Gray-Sommerville’s argument that even if 

the challenged evidence is relevant, its probative value is 

substantially outweighed by the danger of unfair prejudice, and 

therefore, excludable under Federal Rule of Evidence 403. See

Fed. R. Evid. 403 (“The court may exclude relevant evidence if 

its probative value is substantially outweighed by a danger of 

. . . unfair prejudice . . . .”). In response to this same 

argument by Gray-Sommerville below, the district court held the 

other act evidence involving Gray-Sommerville advertising and 

transporting another minor for prostitution just three months 

prior to the charged instant offense “is highly probative on the 

issue of the mental state of the defendant,” and is not 

substantially outweighed by the danger of unfair prejudice. 

(J.A. 408). After reviewing the record, we find the challenged 

evidence was no more sensational or disturbing than the charged 

offense, and therefore, did not unfairly prejudice 

Gray-Sommerville. See United States v. Boyd, 53 F.3d 631, 637 
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(4th Cir. 1995) (holding Rule 403 balancing test undeniably 

weighed in favor of admitting challenged evidence because 

challenged evidence did not involve conduct any more sensational 

or disturbing than defendant’s charged offenses).

In sum, the district court did not abuse its discretion in 

admitting the challenged evidence.

IV.

In conclusion, we affirm the judgment below in toto.∗ 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

 ∗ We grant Gray-Sommerville’s motion to file a pro se

supplemental brief. We have considered the issues raised in 

such brief and find them to be without merit.