                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4142


UNITED STATES OF AMERICA,

                     Plaintiff – Appellee,

              v.

RANDALL STEWART HILL,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Fox, Senior District Judge. (7:15-cr-00037-F-1)


Submitted: March 31, 2017                                          Decided: April 7, 2017


Before KING, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph E. Zeszotarski, Jr., GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh,
North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, First Assistant United States Attorney, Barbara D. Kocher, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Randall Stewart Hill was convicted after a jury trial for conspiracy to manufacture,

distribute, dispense, and possess methamphetamine. The jury determined that the quantity

of methamphetamine involved was 500 grams or more. Hill received a 420-month

sentence. On appeal, Hill argues that the district court did not properly instruct the jury as

to drug quantity, that the Government made improper remarks at closing argument

requiring a new trial or resentencing, and the district court erred in applying a sentencing

enhancement for possession of a firearm in connection with the offense. We affirm.

       We review “the district court’s jury instructions in their entirety and as part of the

whole trial, and focus on whether the district court adequately instructed the jury regarding

the elements of the offense and the defendant’s defenses.” United States v. Wilson, 198

F.3d 467, 469 (4th Cir. 1999) (internal citation omitted). Hill acknowledges that his failure

to object to the quantity instructions subjects this issue to plain error review. United States

v. Robinson, 627 F.3d 941, 953 (4th Cir. 2010). To establish plain error, Hill must show:

(1) there was an error, (2) that was plain, and (3) that affected his substantial rights. United

States v. Olano, 507 U.S. 725, 732, 735-36 (1993). Further, we will exercise our discretion

and reverse a conviction based on plain error only where the error “seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Id. at 732, 736 (brackets

and internal quotation marks omitted).

       Hill argues that the district court failed to instruct the jury that the quantity of

methamphetamine attributable to him in the conspiracy is an element of the offense, and

that the quantity determination must be made beyond a reasonable doubt. He further argues

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that the court failed to instruct the jury on the proper method of determining the quantity

of methamphetamine attributable to him, in violation of United States v. Collins, 415 F.3d

304 (4th Cir. 2005).

       “The purpose of jury instructions is to instruct the jury clearly regarding the law to

be applied in the case.” United States v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995). Following

Apprendi, * it is the jury’s responsibility to determine the specific, statutory threshold drug

quantity attributable to any particular member of a drug conspiracy. Collins, 415 F.3d at

313-14. In Collins, this court held that, in a 21 U.S.C. § 846 (2012) drug conspiracy

prosecution, the threshold drug quantities for purposes of applying the graduated penalty

provisions in 21 U.S.C. § 841(b)(1) (2012) must be determined by a jury beyond a

reasonable doubt. Collins, 415 F.3d at 313-14. The court held further that a district court

must, pursuant to Pinkerton v. United States, 328 U.S. 640, 646-48 (1946) (concluding

that, in a criminal conspiracy case, a defendant can only be held liable for conduct that is

within the scope of the criminal agreement and reasonably foreseeable as a natural

consequence of the agreement), instruct the jury to determine the drug quantity attributable

to any one defendant in the conspiracy—that is, the amount that was in furtherance of the

conspiracy and reasonably foreseeable to that defendant—as opposed to the conspiracy as

a whole. Collins, 415 F.3d at 314.

       Reviewing the instructions in the context of the overall charge, we conclude that

they fairly and accurately set forth the controlling law. United States v. Woods, 710 F.3d


       *
           Apprendi v. New Jersey, 530 U.S. 466 (2000).

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195, 207 (4th Cir. 2013) (the court considers the jury charge as a whole to determine

whether the instructions accurately stated the statutory elements). The charge definitively

stated that if the jury found that Hill was guilty of the conspiracy it then had to make a

finding on drug quantity in order to convict. Hill has not demonstrated that the challenged

instructions regarding elements of the offense and quantity usurped the jury’s role in

weighing the evidence against the proper burden of proof. The district court instructed the

jury several times that the Government must prove its case beyond a reasonable doubt. No

other burden of proof was mentioned.      The court instructed the jury that it would have to

determine the drug quantity reasonably foreseeable to Hill by stating that “[if] your verdict

is guilty, you are instructed to determine the quantity of methamphetamine that the

Defendant conspired to possess with the intent to distribute.” In this trial, Hill was the only

defendant and the testimony about drug weight related only to the interactions with Hill.

       Further, if the evidence “overwhelmingly establishe[s]” that the defendant was

personally responsible for the threshold quantity of drugs, and if his assertions at trial

“primarily focused on whether he committed the offenses and not on the drug quantities

reasonably foreseeable to him,” this court may decline to recognize a plain Collins error.

United States v. Foster, 507 F.3d 233, 252 (4th Cir. 2007). Here, the evidence was

overwhelming that Hill was responsible for 500 grams of more of methamphetamine. We

do not review the credibility of witnesses and assume the jury resolved all contradictions

in testimony in favor of the Government. United States v. Sun, 278 F.3d 302, 312 (4th Cir.

2002). Therefore there is no error to be recognized by the court.



                                              4
       Next, Hill argues that the Government’s allegedly improper arguments during

closing statements rendered the trial unfair. He contends that the Government made three

improper references: an inference casting him as the devil, a statement that the witness who

set him up was now dead, and a statement that witness Billie Jo Fife had sex with him in

exchange for methamphetamine. With respect to these arguments, however, Hill did not

raise an objection in the district court. Therefore, we review only for plain error. See

United States v. Mitchell, 1 F.3d 235, 239 (4th Cir. 1993).

       A prosecutor’s improper remarks during closing argument will mandate retrial only

if they “so infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Id. at 240 (internal quotation marks omitted). This court considers six factors

in determining whether a prosecutor’s arguments are so prejudicial as to have deprived the

defendant of a fair trial:

       (1) whether the government’s remarks misl[ed] the jury, (2) whether they
       were extensive, (3) the strength of the evidence supporting conviction absent
       the comments, (4) whether the government deliberately made the comments
       to mislead the jury, (5) whether the defendant invited the comments, and (6)
       the presence of a curative instruction.

United States v. Chong Lam, 677 F.3d 190, 197 (4th Cir. 2012).

       We assume without deciding that the challenged remarks on appeal were improper.

However, the cumulative effect of improper remarks only mandate retrial if they “so infect

the trial with unfairness as to make the resulting conviction a denial of due process.”

Mitchell, 1 F.3d at 239. Considering the statements and evidence in light of Chong Lam,

we conclude that the Government’s remarks did not infect the trial with unfairness so as to

rise to a denial of due process and that any plain error need not be noticed.

                                              5
       Finally, we review application of the U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (2015) enhancement for clear error. United States v. Manigan, 592 F.3d

621, 630–31 (4th Cir. 2010). In order for the enhancement to apply, “the Government must

prove by a preponderance of the evidence that the weapon was possessed in connection

with drug activity that was part of the same course of conduct or common scheme as the

offense of conviction.” Id. at 628–29 (internal quotation marks omitted). However, the

Government need not prove that possession of the firearm was “precisely concurrent” with

the criminal act. Id. at 629 (internal quotation marks omitted). “[P]roof of constructive

possession of the [firearm] is sufficient, and the Government is entitled to rely on

circumstantial evidence to carry its burden.”      Id.; see USSG § 2D1.1 cmt. n.11(A)

(providing that enhancement should apply if weapon was present near illicit drugs “unless

it is clearly improbable that the weapon was connected with the offense”). The defendant

bears the burden of establishing such a clear improbability. United States v. Slade, 631

F.3d 185, 189 (4th Cir. 2011).

       Hill cannot make this showing. The evidence at trial was that Ralph Stroud, a person

who had been trading pseudoephedrine for methamphetamine with Hill, approached Hill

at a gas station and Hill offered Stroud 28 grams of methamphetamine for $1500. Hill was

sitting in his truck and Stroud saw a handgun in between the seats of the truck. This court

has explained that “so long as a firearm’s location makes it readily available to protect

either the participants themselves during the commission of the illegal activity or the drugs

and cash involved in the drug business, there will be sufficient evidence to connect the

weapon to the offense conduct.” Manigan, 592 F.3d at 629 (alterations and internal

                                             6
quotation marks omitted). We conclude that the district court did not clearly err in applying

the enhancement. Further, as Hill admits, any error did not affect the advisory Guidelines

range.

         Accordingly, we affirm the 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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