UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4304
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL T. MCGEE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:13-cr-00023-FPS-JES-1)
Submitted: December 31, 2014 Decided: February 10, 2015
Before WILKINSON, GREGORY, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elgine McArdle, MCARDLE LAW OFFICES, Wheeling, West Virginia,
for Appellant. William J. Ihlenfeld, II, United States
Attorney, Robert H. McWilliams, Jr., Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael McGee was convicted, following a jury trial,
of conspiracy to possess cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012) (“Count
One”), and was acquitted of possessing cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(“Count Two”). The district court sentenced McGee to 262
months’ imprisonment. McGee timely appeals his conviction and
sentence, arguing that (1) the district court erred in admitting
evidence pursuant to Federal Rule of Evidence 404(b); (2) there
was insufficient evidence to convict him on Count One; (3) the
district court violated McGee’s constitutional right to be
present during discussion and formulation of a response to a
jury question during deliberations; (4) the district court erred
in designating McGee a career offender; and (5) the district
court erred in applying a two-level enhancement for obstruction
of justice. Finding no reversible error, we affirm.
I.
We review a district court’s evidentiary rulings for
abuse of discretion. United States v. Taylor, 754 F.3d 217, 226
n.* (4th Cir.), petition for cert. filed, ___ S. Ct. ___ (Sept.
4, 2014) (No. 14-6166). An abuse of discretion occurs only when
the district court “acted arbitrarily or irrationally in
admitting evidence.” United States v. Williams, 445 F.3d 724,
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732 (4th Cir. 2006) (citation and internal quotation marks
omitted).
Rule 404(b) prohibits the admission of “[e]vidence of
a crime, wrong, or other act . . . to prove a person’s character
in order to show that on a particular occasion the person acted
in accord with the character.” Fed. R. Evid. 404(b). Such
evidence is “admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Id. To be
admissible, the evidence must be “(1) relevant to an issue other
than the general character of the defendant; (2) necessary to
prove an element of the charged offense; and (3) reliable.”
United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004).
Additionally, the prejudicial effect of the evidence must not
substantially outweigh its probative value. Id.
Evidence of other bad acts also “may be introduced if
it concerns acts intrinsic to the alleged crime because evidence
of such acts does not fall under Rule 404(b)’s limitations.”
United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013)
(internal quotation marks and brackets omitted), cert. denied,
134 S. Ct. 1279 (2014). Evidence is intrinsic “if it arose out
of the same . . . series of transactions as the charged offense,
. . . or if it is necessary to complete the story of the crime
(on) trial.” United States v. Kennedy, 32 F.3d 876, 885 (4th
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Cir. 1994) (internal quotation marks omitted). Evidence is also
intrinsic “if it is necessary to provide context relevant to the
criminal charges.” United States v. Basham, 561 F.3d 302, 326
(4th Cir. 2009) (internal quotation marks omitted).
McGee argues that the district court erred in
admitting evidence of five controlled buys in November 2012
involving a Government informant. He contends that this
evidence served no purpose other than to “pollute the waters” of
McGee’s conspiracy charge because the buys were too remote in
time or geography to be relevant. McGee also argues that the
district court abused its discretion in admitting evidence of
uncharged drug distribution. We disagree. Here, the Government
introduced the controlled buys as evidence of the conspiracy.
The court also properly admitted the contested evidence under
Kennedy because it arose out of the same series of transactions
and was necessary to complete the story of the crimes on trial.
II.
McGee next asserts that the evidence presented at
trial was insufficient to sustain his conviction on Count One.
“A defendant challenging the sufficiency of the evidence to
support his conviction bears a heavy burden.” United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation
marks omitted). The jury verdict must be sustained when “there
is substantial evidence in the record, when viewed in the light
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most favorable to the government, to support the conviction.”
United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011)
(internal quotation marks omitted). “[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.” Id. (internal quotation marks
omitted). We do not weigh the credibility of the evidence or
resolve any conflicts in the evidence. Beidler, 110 F.3d at
1067. “Reversal for insufficient evidence is reserved for the
rare case where the prosecution’s failure is clear.” Id.
(internal quotation marks omitted).
To convict McGee of Count One, the Government was
required to prove beyond a reasonable doubt the following
elements: (1) an agreement between McGee and one or more people
to engage in conduct that violates federal drug law; (2) McGee’s
knowledge of the conspiracy; and (3) McGee’s knowing and
voluntary participation in the conspiracy. See United States v.
Howard, No. 13-4296, __ F.3d __, 2014 WL 6807270, at *4 (4th
Cir. Dec. 4, 2014). This may be done by either direct or
circumstantial evidence. United States v. Hickman, 626 F.3d
756, 763 (4th Cir. 2010).
We conclude that that there was sufficient evidence
for a reasonable jury to find beyond a reasonable doubt that a
conspiracy existed. The evidence at trial established the
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existence of a drug distribution system involving McGee as
cocaine supplier. Although McGee did not know everyone
involved, the Government did not have to prove that McGee “knew
all of his co-conspirators or all of the details of the
conspiracy.” United States v. Burgos, 94 F.3d 849, 861 (4th
Cir. 1996) (en banc). Instead, McGee knew that his buyer acted
as a middleman for a third person; this proved a conspiracy.
Moreover, through its informant, the Government showed
that McGee was involved in a conspiracy in November 2012.
Testimony from the informant revealed that McGee had controlled
substances readily available and worked with a supplier to
ensure quick sales. This correlated with other testimony that
McGee completed cocaine sales within twenty-four hours of a buy
request. Therefore, a jury could infer that, as early as
November 2012, McGee had a steady supplier who knew that he was
redistributing the cocaine to others.
The Government also introduced evidence of overt acts
within the Northern District of West Virginia. Co-conspirators
testified that they met in West Virginia prior to driving to
McGee in Ohio for the actual buy. Thus, even if McGee never
sold drugs in West Virginia, his co-conspirators met there,
which established an overt act in West Virginia in furtherance
of the conspiracy.
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To the extent that McGee argues that his acquittal on
Count Two undermines his conviction on Count One, he is
incorrect. “[I]t is well-settled that a defendant cannot
challenge his conviction merely because it is inconsistent with
a jury’s verdict of acquittal on another count.” United States
v. Louthian, 756 F.3d 295, 305 (4th Cir.), cert denied, 135 S.
Ct. 421 (2014). Moreover, the Government is not required
“either to allege or prove an overt act in a conspiracy charged
under 21 U.S.C. § 846.” United States v. Clark, 928 F.2d 639,
641 (4th Cir. 1991). Thus, McGee’s acquittal of an underlying
overt act did not negate the existence of a conspiracy.
III.
McGee next asserts that the district court violated
his right to be present during discussion and formulation of a
response to a jury question during deliberations. Federal Rule
of Criminal Procedure 43 provides that a defendant has the right
to be present at every stage of trial, including when the judge
communicates with the jury. When a defendant fails to raise
this argument before the district court, we review for plain
error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir.
2012). To establish plain error, an appellant must show “(1)
error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Thomas, 669 F.3d 421, 424 (4th Cir.
2012) (internal quotation marks omitted).
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While the district court should not have begun to
discuss and formulate a response to the jury question while
McGee was absent, McGee has not shown that his substantial
rights were affected. McGee’s attorney was present at all times
during the court’s discussion, and McGee’s absence was brief;
upon his arrival in the courtroom, the court re-read the
question to him, after which the bulk of the discussion and
formulation occurred. See United States v. Harris, 814 F.2d
155, 157 (4th Cir. 1987) (per curiam) (finding no prejudice “in
light of the fact that defendant’s counsel was present and that
prompt remedial measures were taken by the district court” once
defendant was brought into courtroom).
Moreover, the question itself was one of law, not
fact, to which the court gave a direct answer guiding the jury
to the instructions and no more. See United States v.
Arriagada, 451 F.2d 487, 489 (4th Cir. 1971). Also, McGee’s
counsel never challenged this issue until the instant appeal.
See id. (“Had it appeared to the appellant or his counsel that
the action of the District Court involved any prejudice,
objection would have been promptly entered by the appellant and
not tardily raised after verdict.”). Accordingly, we find no
reversible error.
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IV.
McGee next contends that the district court erred in
sentencing him as a career offender based on his convictions for
aggravated robbery in 1989, drug trafficking in 2004, and drug
trafficking in 2009. When a defendant challenges the district
court’s calculation of the Sentencing Guidelines, we review the
district court’s “legal conclusions de novo and its factual
findings for clear error.” United States v. Medina-Campo, 714
F.3d 232, 234 (4th Cir.), cert. denied, 134 S. Ct. 280 (2013).
The Guidelines provide that a defendant is a career
offender if he was at least eighteen years old at the time of
the instant offense, the instant offense is a drug felony or
crime of violence, and the defendant has at least two prior
felony convictions for drug offenses or crimes of violence.
U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a) (2013). A
prior conviction qualifies as a predicate offense only if the
sentence of imprisonment exceeded thirteen months and “was
imposed within fifteen years of the defendant's commencement of
the instant offense . . . [or] resulted in the defendant being
incarcerated during any part of such fifteen-year period.” USSG
§§ 4A1.2(e)(1), 4B1.2 cmt. n.3. We have reviewed McGee’s
arguments as to each of the three convictions at issue and
conclude that the district court properly determined that all of
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the convictions were predicate offenses for designating him a
career offender.
V.
Finally, McGee challenges the two-level enhancement
for obstruction of justice. We find that this issue is moot
because the offense level established under the career offender
Guideline was greater than the offense level calculated using
the Guidelines for drug offenses and any specific offense
characteristic or adjustment. Thus, the obstruction enhancement
did not affect McGee’s sentence.
Accordingly, we affirm the district court’s judgment.
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
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