                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 14-4186


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

KENTRELL TYRONE MCINTYRE, a/k/a Mustafa,

               Defendant - Appellant.



                            No. 14-4337


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

JAIMEL KENZIE DAVIDSON, a/k/a I-Shine,

               Defendant - Appellant.



                            No. 14-4339


UNITED STATES OF AMERICA

               Plaintiff – Appellee,

          v.
PERRY GORONTENT WILLIAMS, a/k/a P-Flame, a/k/a Flame,

                Defendant - Appellant.



                             No. 14-4343


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

NATHANIEL GRAHAM, a/k/a Nasty,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.      Frank D. Whitney,
Chief District Judge. (3:12-cr-00188-FDW-DSC-18; 3:12-cr-00188-
FDW-DSC-9; 3:12-cr-00188-FDW-DSC-28; 3:12-cr-00188-FDW-DSC-13)


Submitted:   January 29, 2016              Decided:   February 9, 2016


Before AGEE and    WYNN,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


W.H. Paramore, III, W.H. PARAMORE, III, P.C., Jacksonville,
North   Carolina;  J.   Clark   Fischer,   RANDOLPH  &   FISCHER,
Winston-Salem, North Carolina; Eric J. Foster, Asheville, North
Carolina; M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellants. Jill
Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

      A federal jury convicted Kentrell Tyrone McIntyre, Jamiel

Kenzie Davidson, Perry Gorontent Williams, and Nathaniel Graham,

of   conspiracy        to     participate       in   racketeering          activity,     in

violation of 18 U.S.C. § 1962(d) (2012); and convicted McIntyre,

Williams, and Graham of conspiracy to commit murder in aid of

racketeering activity, in violation of 18 U.S.C. § 1959(a)(5)

(2012).    The district court sentenced McIntyre to a total of 192

months    of    imprisonment,      sentenced         Davidson       to    150   months   of

imprisonment, sentenced Williams to 360 months of imprisonment,

and sentenced Graham to 240 months of imprisonment, and they now

appeal.        For the reasons that follow, we affirm the district

court’s judgments.

      Each Appellant challenges the sufficiency of the evidence

to   support     his    convictions.            We   review     a    district     court’s

decision to deny a Fed. R. Crim. P. 29 motion for a judgment of

acquittal de novo.             United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).            A defendant challenging the sufficiency of the

evidence faces a heavy burden.                  United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).                     In determining whether the

evidence is sufficient to support a conviction, we determine

“whether       there   is     substantial       evidence      in    the    record,     when

viewed in the light most favorable to the government, to support

the conviction.”            United States v. Palacios, 677 F.3d 234, 248

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(4th Cir. 2012) (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).      Furthermore,          “[d]eterminations         of

credibility are within the sole province of the jury and are not

susceptible to judicial review.”                  Id. (internal quotation marks

omitted).

       “To satisfy § 1962(d), the government must prove that an

enterprise      affecting        interstate      commerce       existed;       that    each

defendant knowingly and intentionally agreed with another person

to conduct or participate in the affairs of the enterprise; and

that each defendant knowingly and willfully agreed that he or

some other member of the conspiracy would commit at least two

racketeering acts.”            United States v. Cornell, 780 F.3d 616, 621

(4th   Cir.),      cert.       denied,   136     S.    Ct.     127   (2015)     (internal

quotation    marks       and    alterations      omitted).           Racketeering       acts

include     any     act     or     threat       involving       murder,    kidnapping,

gambling, arson, robbery, bribery, extortion, dealing in obscene

matter,   or      felony   controlled       substance        offenses.         18     U.S.C.

§ 1961(1) (2012).          Completion of any overt act is not an element

of a RICO conspiracy offense; rather the Government need only

demonstrate       that    the    conspirators         agreed    to    pursue    the    same



                                            4
criminal objective, whether that objective is started or carried

out.       Cornell, 780 F.3d at 624.

          To demonstrate a violation of § 1959(a)(5), the Government

had       to   prove          that    the       Appellants      agreed      with    each    other    to

commit         a    murder          for   the     purpose      of     gaining      entrance    to   or

maintaining              or     increasing         their       positions      in    an     enterprise

engaged            in    racketeering             activity.           See     United       States    v.

Basciano, 599 F.3d 184, 198-99 (2d Cir. 2010).                                     In addition, to

demonstrate withdrawal from a conspiracy, a “defendant must show

affirmative acts inconsistent with the object of the conspiracy

and communicated in a manner reasonably calculated to reach his

coconspirators.”                    United States v. Green, 599 F.3d 360, 370 (4th

Cir.       2010).             The    defendant         bears    the    burden      of    proving    his

withdrawal from the conspiracy.                             Id. at 370.       We have thoroughly

reviewed           the    record          and    the    relevant          legal    authorities      and

conclude           that       there       was    substantial        evidence       to    support    the

jury’s verdicts of guilt as to both counts.

          Williams also challenges the district court’s order denying

his motion to appoint substitute counsel.                                   We review the denial

of    a    motion         for       substitute      counsel         for    abuse    of   discretion.

United States v. Horton, 693 F.3d 463, 466 (4th Cir. 2012).                                         In

so doing, we consider (1) the timeliness of the motion, (2) the

adequacy of the court’s inquiry, and (3) whether the conflict

between attorney and client was so great that it resulted in

                                                        5
total lack of communication preventing an adequate defense.                                 Id.

at    466-67.         We    conclude       that       the       court   did   not   abuse   its

discretion       in        refusing    to     appoint            substitute     counsel     for

Williams one week prior to trial.

       Graham argues on appeal that the court plainly erred in

failing to instruct the jury on withdrawal from a conspiracy.                                 A

district court errs in failing to provide an instruction to the

jury where the instruction is legally correct, not substantially

covered by the charge to the jury, and dealt with a point in the

trial so important that the failure to provide the instruction

seriously impaired the defendant’s ability to conduct a defense.

United States v. Smith, 701 F.3d 1002, 1011 (4th Cir. 2012).

       Here,    as     Graham     failed          to    request         an    instruction    on

withdrawal and failed to object to the court’s jury charge, we

review this issue for plain error.                          United States v. Nicolaou,

180 F.3d 565, 570 (4th Cir. 1999).                          “Under plain error review,

[Graham] must show that (1) the district court committed error,

(2)   the     error    was     plain,       and       (3)   the     error     affected    [his]

substantial rights.”            United States v. Wilson, 484 F.3d 267, 279

(4th Cir. 2007).             Our review of the record leads us to conclude

that the court committed no error in charging the jury.

       Finally, McIntyre and Davidson challenge the reasonableness

of    their     sentences.            We    review          a    sentence     for   abuse    of

discretion, determining whether the sentence is procedurally and

                                                  6
substantively reasonable.         United States v. Heath, 559 F.3d 263,

266 (4th Cir. 2009).         In so doing, we examine the sentence for

“significant procedural error,” including “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)     [(2012)]   factors,         selecting      a   sentence        based     on

clearly erroneous facts, or failing to adequately explain the

chosen    sentence”.     Gall     v.      United     States,     552   U.S.     38,    51

(2007).     We then review the substantive reasonableness of the

sentence, presuming that a sentence within a properly calculated

advisory    Guidelines    range      is    reasonable.          United       States    v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United

States, 551 U.S. 338, 346-56 (2007) (upholding presumption of

reasonableness for within-Guidelines sentence).

     McIntyre     challenges    the       procedural     reasonableness         of    his

sentence, contending that the district court erred in applying a

base offense level based on conspiracy to commit murder.                               We

reject     McIntyre’s    argument.             The    district       court    properly

calculated the advisory Guidelines range and sentenced McIntyre

within that range.

     Davidson      asserts      on     appeal         that     his     sentence        is

substantively     unreasonable.           If    a    district    court       imposes    a

variant     or   departure    sentence,         it    must     provide       sufficient

justification to support the degree of variance, although need

                                           7
not     find   that     extraordinary         circumstances       exist.         United

States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).                       We conclude

based    on    our   review    of   the   record    that    the    district       court

provided       sufficient      justification       to      support    the        chosen

sentence.        Based    on    the   court’s      stated    justification,         the

sentence is substantively reasonable.               See id. at 160 (appellate

court can only reverse a sentence if it is unreasonable, even if

the court would have imposed a different sentence).

       Accordingly, we affirm the judgments of the district court.

We    dispense   with    oral    argument      because     the    facts    and    legal

conclusions      are   adequately     presented     in   the     materials       before

this court and argument would not aid in the decisional process.



                                                                             AFFIRMED




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