UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4887
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY RAY WELLS,
Defendant - Appellant.
No. 03-7686
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY RAY WELLS,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-02-234)
Submitted: May 8, 2006 Decided: June 29, 2006
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
No. 03-4887 affirmed in part; vacated and remanded in part; No. 03-
7686 affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia; Sol Zalel Rosen,
Washington, D.C., for Appellant. Kasey Warner, United States
Attorney, R. Booth Goodwin II, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
Following a jury trial, Danny Ray Wells was convicted of
racketeering in violation of 18 U.S.C. § 1962(c) (2000) and
sentenced to eighty-seven months in prison followed by three years
of supervised release. In these consolidated appeals from his
conviction and sentence (No. 03-4887) and the district court’s
order denying his pro se motion for production of documents (No.
03-7686), Wells contends his sentence constituted plain error under
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005); he did not knowingly and
intelligently waive the right to seek appellate review of his
conviction; and the evidence was insufficient for the jury to find
him guilty of conduct constituting a “pattern of racketeering
activity.” We affirm the district court’s order denying his motion
for production of documents in No. 03-7686. In No. 03-4887, we
affirm Wells’s conviction, but vacate his sentence because it
exceeded the range that was supported by the jury’s verdict and
grant the motions to remand for resentencing in accordance with
Booker.*
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Wells’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating an error is “plain” if “the law at the time of trial was
settled and clearly contrary to the law at the time of appeal”).
- 3 -
Whether a defendant has effectively waived his right to
appeal is a matter of law we review de novo. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). When the Government
seeks to enforce an appellate waiver, and there is no claim the
Government breached the parties’ agreement, this court will enforce
the waiver if the record establishes the defendant knowingly and
intelligently agreed to waive the right to appeal, and the issue
being appealed is within the scope of the waiver. Id. at 168-69.
Although the determination of whether a defendant knowingly and
intelligently agreed to waive the right to appeal is often made
based on the adequacy of the district court’s questioning, the
issue ultimately is evaluated by considering the totality of the
circumstances, including the background, experience, and conduct of
the accused. Id. at 169 (citations and quotations omitted).
It is not clear from the materials before us on appeal
that Wells knowingly and intelligently agreed to waive appellate
review of his conviction. The district court did not question
Wells regarding the waiver, which was contained in an agreement
executed after the jury’s verdict, to confirm that it was knowing
and intelligent. The only time the district court discussed the
waiver with Wells was at a post-judgment hearing in which Wells
contended his intention was always to appeal his conviction. This
contention, although contradicted by the waiver provision, was
supported by the fact that one of his attorneys filed a notice of
- 4 -
appeal of the conviction nearly simultaneously with Wells’s
execution of the agreement containing the waiver provision, and his
counsel’s subsequent filing of a motion for a new trial. Moreover,
Wells alleged his other attorney advised him prior to sentencing
that the Government had repudiated the parties’ agreement. We
therefore decline to enforce the waiver of appellate rights
contained in this agreement and review Wells’s claim challenging
the jury’s verdict.
We conclude the evidence was sufficient for the jury to
find a pattern of racketeering activity beyond a reasonable doubt.
In reviewing a sufficiency challenge, the verdict of a jury must be
sustained 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). Reversal of a conviction for
insufficient evidence is reserved for the rare case in which the
prosecution’s failure is clear. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997) (quotations and citations omitted).
A “pattern of racketeering activity” requires “at least
two acts of racketeering activity, one of which occurred after
[October 15, 1970] and the last of which occurred within ten years
. . . after the commission of a prior act of racketeering
activity.” 18 U.S.C. § 1961(5) (2000). A “pattern” is something
more than the commission of widely separated and isolated or
sporadic offenses, and it requires a relationship between the
- 5 -
predicates and a threat of continuing activity. H.J. Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229, 238-39 (1989). The three
acts found by the jury constituted more than isolated or sporadic
offenses. Because of their similarity in means and mode of
execution, they were both sufficiently related and implicitly
threatened repetition to a degree consistent with continuing
activity.
Because Wells was sentenced prior to Booker and he did
not raise any Booker claim in the district court, we review his
sentence for plain error. Hughes, 401 F.3d at 547. “In Booker,
the Supreme Court ruled that the Sixth Amendment is violated when
a district court, acting pursuant to the Sentencing Reform Act and
the guidelines, imposes a sentence greater than the maximum
authorized by the facts found by the jury’s verdict alone.” Id. at
546. As conceded by Wells, his base offense level and the two-
level enhancement for abuse of a position of public trust were
supported by the jury’s verdict. However, his remaining sentencing
enhancements were based on facts not found by the jury. Wells was
prejudiced by the error because his sentence exceeded the range of
thirty-seven to forty-six months that would have applied without
the additional enhancements. See id. at 550-51.
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
- 6 -
sentencing.” Booker, 543 U.S. at 264. On remand, the district
court should first determine the appropriate sentencing range under
the guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000) and then impose a sentence.
Id. If that sentence falls outside the guidelines range, the court
should explain its reasons for the departure as required by 18
U.S.C. § 3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47.
Accordingly, in No. 03-4887, we affirm Wells’s
conviction, vacate his sentence, and grant the parties’ motions to
remand for resentencing. In No. 03-7686, we affirm the district
court’s denial of his motion for production of documents. We deny
Wells’s motion for leave to file a pro se supplemental brief. 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.
No. 03-4887 AFFIRMED IN PART;
VACATED AND REMANDED IN PART
No. 03-7686 AFFIRMED
- 7 -