                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-3839
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                   GARY WILLIAMS,
                                             Appellant

                                   ________________

                            On Appeal from the District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 3-12-cr-00179-002)
                      District Judge: Honorable A. Richard Caputo
                                   ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 27, 2015

           Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges

                                  (Filed: April 25, 2016 )


                                   ________________

                                       OPINION*
                                   ________________

SCIRICA, Circuit Judge.



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Gary Williams was convicted by a jury of conspiracy to commit murder-for-hire

and several related crimes. He now appeals his conviction on two grounds: (1) the trial

court improperly introduced reputation evidence in violation of Federal Rule of Evidence

404(b); and (2) the court misapplied the sentencing guidelines in calculating Williams’s

murder-for-hire sentence. We will affirm.

                                             I.

       While serving time in Pike County Correctional Facility for crimes unrelated to

this case, Gary Williams entered into an agreement with his cellmate Edward

McLaughlin, who asked Williams to murder his ex-wife. Together, they agreed that

McLaughlin would provide a firearm, bullets, and a few thousand dollars to Williams to

carry out the killing, once Williams was released from jail.

       After leaving jail, Williams moved in with his girlfriend, Gloria Soto. While

living there, he received a shipment from McLaughlin containing a Mauser rifle intended

to be used to murder McLaughlin’s ex-wife. On May 29, 2012, with the Mauser rifle,

Williams shot at Soto in her apartment and beat her face with the rifle butt. Responding

to a 911 domestic violence call by Soto, police arrested Williams while he was fleeing

from the scene. They discovered bullets and a bullet hole in the apartment and

documented Soto’s bruised face.

       Subsequently, Soto told police about the murder-for-hire plot which Williams had

revealed to her while living in her apartment. She consented to a police search of her

apartment for evidence related to the Mauser rifle and the conspiracy, and police


                                             2
uncovered the rifle. Police also found letters between McLaughlin and Williams and

other evidence revealing details of the murder plan. Soto cooperated with police and

agreed to make recorded phone calls to Williams and McLaughlin to confirm details of

the plot.

       Gary Williams was indicted by a federal grand jury on five counts: conspiracy to

commit murder-for-hire, 18 U.S.C. § 1958 (Count 1); possession and carrying a firearm

during and in relation to and in furtherance of a crime of violence, 18 U.S.C. § 924(c)

(Count 2); receipt of a firearm in interstate commerce with the intent to commit a felony

offense, 18 U.S.C. § 924(b) (Count 3); unlawful possession of a firearm as a convicted

felon, 18 U.S.C. § 922(g)(1) (Count 4); and attempting to corruptly persuade a witness

with the intent to influence the witness’s testimony in an official proceeding, 18 U.S.C. §

1512(b)(1) (Count 5). Edward McLaughlin was also indicted, and the district court

severed their cases.1

       Williams was convicted on all five counts. At trial, the prosecution presented

evidence through witness testimony from Soto, police officers, and the brother and ex-

wife of co-conspirator McLaughlin. The prosecution also introduced numerous exhibits,

letters between Williams and McLaughlin that were read into evidence, and audio

recordings of telephone conversations between Williams and Soto and Williams and

McLaughlin.

       Pursuant to the pre-sentence investigation report, the court applied the sentencing

1
 This case is a companion case to United States v. McLaughlin, No. 15-1193, also
decided today. McLaughlin had pleaded guilty to conspiracy to commit murder-for-hire
and other crimes, and the companion case denies his motion to withdraw his guilty plea.
                                             3
guidelines noting the guideline for conspiracy to commit a murder-for-hire (Section

2E1.4), carried a base offense level of 32. The instructions to this guideline, however,

direct a court to apply either the base offense level of 32 or the base offense level of the

underlying unlawful conduct, whichever is higher. The underlying unlawful conduct in

this case is conspiracy to commit a crime of violence, which has a separate guideline—

Section 2A1.5—and carries a higher base offense level of 33. The court applied Section

2A1.5 and its higher base offense level along with various enhancements set forth by the

guidelines. Because Williams had a lengthy criminal history, was designated a career

offender (Criminal History Category VI), and was given an offense level of 39, the court

sentenced him to 420 months in jail.2

                                             II.

       Williams appeals his conviction on two separate grounds.3 First, he contends the

trial court improperly admitted reputation evidence in violation of Rule 404(b) of the

Federal Rules of Evidence. Because Williams did not object to admission of this

evidence at trial, we review for plain error. United States v. Christie, 624 F.3d 558, 567

(3d Cir. 2010).

       Second, Williams argues the court incorrectly applied the sentencing guidelines by

applying Section 2A1.5 rather than Section 2E1.4. Williams contends the court’s

application of the guidelines highlights a redundancy and leads to an unintended result—

that Section 2E1.4 will never be applied to conspiracy to commit murder-for-hire and is

2
 His sentencing range under the sentencing guidelines was 420 months to life in jail.
3
 The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                              4
therefore superfluous. We review a court’s interpretation of the sentencing guidelines de

novo when a defendant makes an objection at sentencing. United States v. Fountain, 792

F.3d 310, 318 (3d Cir. 2015). But where, as here, “an objection [to application of

sentencing guidelines] is not preserved at sentencing, we review that challenge for plain

error.” Id.; see United States v. Bernard, 373 F.3d 339, 341 (3d Cir. 2004) (same);

United States v. Knight, 266 F.3d 203, 206-07 (3d Cir. 2001) (applying plain error

standard to defendant’s unpreserved claim of error regarding application of sentencing

guidelines); 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.”).

                                             III.

       Williams argues the prosecution introduced reputation evidence which lacked a

proper purpose and violated Rule 404(b) of the Federal Rules of Evidence. Where

reputation evidence is extrinsic to a charged offense, it falls under Rule 404(b) and may

be admitted if “it is (1) offered for a proper purpose under Rule 404(b)(2); (2) relevant to

that purpose; (3) sufficiently probative under the Rule 403 balancing requirement; and (4)

accompanied by a limiting instruction, if requested.” United States v. Davis, 726 F.3d

434, 441 (3d Cir. 2013); see also Huddleston v. United States, 485 U.S. 681, 691-92

(1988); United States v. Green, 617 F.3d 233, 244 (3d Cir. 2010).

       But “Rule 404(b) does not extend to evidence of acts which are ‘intrinsic’ to the

charged offense.” United States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002) (quoting

Advisory Committee Notes to Fed. R. Evid. 404(b)). When evidence is intrinsic to proof

of the crimes charged, “there is no other wrongful conduct at issue; the evidence is

                                              5
admissible as part and parcel of the charged offense.” Green, 617 F.3d at 245 (internal

quotation marks omitted). Evidence is intrinsic if it directly proves the charged crime, or

if it is concerned with contemporaneous acts which facilitated the commission of a

charged offense. See Green, 617 F.3d at 248-49.

       The government contends the evidence Williams challenges was intrinsic to the

charged crimes, and as a result, the Rule 404(b) restrictions do not apply. 4 See Davis,

726 F.3d at 441. The prosecution gave Williams advance notice of the categories of the

evidence it planned to introduce at trial. As noted, Williams did not object to admission

of the evidence or request limiting instructions. His failure to object deprived the court of

the opportunity to rule or give limiting or curative instructions to the evidence now

contested.

       We have reviewed the record and all the evidence. Most of it is intrinsic but some

may be difficult to categorize. But no objection was made to the evidence, and as noted

we review under plain error.

                                              A.

       Williams describes several instances of evidence which he says violated Rule

404(b). We have grouped the allegedly improper character evidence into five categories

to facilitate our analysis, and discuss each of them in turn.




4
 The government also contends that even if any of the evidence is extrinsic evidence, it
would satisfy Federal Rule of Evidence 404(b). We do not reach this issue because we
conclude that, even if the evidence was extrinsic, its admission does not warrant reversal
under our plain error review.
                                              6
                                             B.

       Williams met McLaughlin in jail where they formed a friendship and discussed the

details and motive of the plot to murder McLaughlin’s ex-wife. Williams now objects to

the admission of evidence about his incarceration, including jail records confirming he

spent time there. This evidence was introduced through letters and phone calls between

Williams and McLaughlin which were read to the jury. These calls and letters, often

made from jail or referring to jail, were integral to the formation and development of their

relationship and established the details of the murder-for-hire conspiracy and other

charged crimes.5 Testimony from Soto also referred to Williams’s imprisonment in the

context of describing their abusive relationship. This evidence is directly probative of, or

is concerned with contemporaneous acts which facilitated, the conspiracy to commit

murder-for-hire, the corruptly persuading a witness charge, and the firearm charges.

                                             C.

       Second, Williams contests the admission of evidence highlighting his abusive

behavior toward Soto. Much of this evidence came from testimony by Soto who told the

jury of Williams’s possession of the rifle, the nature of his and her relationship with

5
  For example, in correspondence to Soto from jail, Williams described his efforts to send
letters out of jail to McLaughlin without jail officials noticing: “Oh, by the way, I’m
getting letters out to Ed. They don’t know it, nor will they be able to figure it out. I
established a new underground way to write him through a third party and have them
mail it to someone else to him, or someone he knows. Cool thing about being around
state convicts. Yeah, I have a whole block of state guys just begging to help me out.” In
a separate letter to Soto, mailed from jail, Williams said “The feds did not offer me any
deal so I did not give up Ed as far as his wife. Besides, I do not know if I could have
gone through with it anyway. Now you have to do your part.” He then instructs Soto on
what to say to investigators in order to hide evidence of his wrongdoing and “get us both
off the hook.”
                                              7
McLaughlin, and Williams’s efforts to convince Soto to lie to the police and cover up

evidence of his illegal actions. With respect to his upcoming trial and her anticipated

testimony on behalf of the prosecution, Williams told her to be “afraid” because she “lied

and perjured” herself and threatened to “get [her] thrown out of housing.” He

summarized his anger toward her by saying “[i]t’s about time you got a little pay back”

and “then your worst nightmare will come true. So you do what you got to do, cause I’m

gonna do what I got to do.” On a separate occasion, he threatened to kill her if she ever

revealed the conspiracy.6 Furthermore, Williams routinely threatened Soto with violence

and claimed he would end their relationship.7 These threats and other statements are

directly probative of, or are concerned with contemporaneous acts which facilitated, the

conspiracy to commit murder-for-hire, the corruptly persuading a witness charge, and the

firearm charges. This evidence is also probative of Soto’s fear of Williams based on his

previous abusive behavior toward her, a fear which he exploited in threatening or cajoling

her to alter or fabricate her testimony. It is, therefore, intrinsic to proving that Williams

attempted to corruptly persuade a witness.

                                              D.

       Third, Williams takes issue with evidence of his drug use. Williams called Soto

from jail to complain about being in the jail’s “detox” unit for heroin use—a statement

6
  Williams displayed a longstanding pattern of violence and abuse toward Soto. On one
occasion, he told her “to either start cleaning the house or he was going to shoot [her].”
He then retrieved the Mauser rifle and shot at her.
7
  He once said “You best be cleaning that f***ing house too you lazy f***. God, you’re
so much like your mother. I hope you break that habit, baby, otherwise I can’t promise
you a successful [traumatic brain injury] treatment. We don’t need any more outbursts
now, do we?”
                                               8
calculated to elicit her sympathy and assistance so that she would fabricate stories to the

government to help secure his release. This statement occurred during a phone

conversation to Soto that was played for the jury which consisted of threats8 alongside

apologies for his aggression toward Soto, combined with entreaties to talk to the

government and help him get out of jail. The conversation also contained references to

the conspiracy to commit murder-for-hire. It followed a pattern of correspondence

designed to coerce Soto into helping him get out of jail through false statements. It is

directly probative of, or is concerned with contemporaneous acts which facilitated, his

efforts to corruptly persuade Soto to alter or fabricate her testimony.

                                             E.

       Fourth, Williams challenges other evidence of verbal and physical abuse against

Soto, including the 2012 domestic violence incident when Williams shot at her and beat

Soto with the rifle. Most of these comments occurred in the context of letters between

Williams and Soto or their telephone conversations which were recorded by the police

with Soto’s permission. Williams’s actions in furtherance of the conspiracy intimately

involved his relationship with Soto. The rifle was mailed to her apartment, and she

accompanied Williams to the shooting range and to the intended victim’s home to scope

out the property. Williams frequently used her telephone to communicate with

McLaughlin. This evidence is directly probative of, or is concerned with

contemporaneous acts which facilitated, the conspiracy to commit murder-for-hire and

8
 For example, Williams told Soto “Now listen, we can, if you help me . . . I promise
nothing ever bad is going to happen to you I wasn’t making, I wasn’t trying to have
anything bad happen to you to begin with, I was just trying to scare you, okay?”
                                              9
the firearm possession charges. And as discussed, the evidence of abuse is probative of

the corruptly persuading a witness charge because his pattern of alternating threats

against Soto and pleas for her help sought to compel her to lie to investigators.

                                               F.

       Fifth, Williams objects to the admission of evidence in letters he sent to Soto from

jail that he had a mental illness or a traumatic brain disorder and that he planned to file

various lawsuits against government entities for “illegally locking [him] up” and other

mistreatment. He requested her help in researching various mental illnesses or brain

defects in an attempt to self-diagnose himself and convince Soto he was not culpable for

various past misdeeds. Williams made statements while in jail, at the same time that he

was urging Soto to alter or fabricate her testimony to the government. The statements are

directly probative or are concerned with contemporaneous acts which facilitated the

charge of corruptly persuading a witness because they are part of a pattern of abuse

designed to induce Soto to alter or fabricate her testimony.

                                               G.

       Even if there was error in admitting any of the evidence in question, there was no

violation of Williams’s substantial rights. Under the plain error doctrine, we may correct

an error not raised at trial only if “(1) there is an ‘error’; (2) the error is ‘clear or obvious,

rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s

substantial rights, which in the ordinary case means’ it ‘affected the outcome of the

district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’” United States v. Marcus, 560 U.S. 258, 262

                                               10
(2010) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If there was error, it

was not clear or obvious. Rather it was subject to reasonable dispute. Furthermore, it did

not seriously affect the fairness, integrity or reputation of the trial. And significantly,

because there is ample evidence supporting Williams’s conviction, evidence that does not

implicate Rule 404(b), admission of the evidence in question did not affect the outcome

of the trial, even if it was erroneous.9

       Principally and significantly, the government presented correspondence found in

Soto’s home between McLaughlin and Williams revealing details of the murder-for-hire

conspiracy, an analysis of phone records probative of contact with each other, and other

supporting evidence probative of the crime. The government proved Williams took overt

acts in furtherance of the murder conspiracy, including taking the rifle to the shooting

range and staking out the intended victim’s house. The government also provided

evidence obtained as a result of lawful searches of Williams’s and McLaughlin’s homes

probative of the crimes. This evidence included a Mauser rifle box with a shipping label

from McLaughlin’s home city, the Mauser rifle, 8mm Mauser bullets, a bullet hole in the

wall and casings on the floor of Soto’s apartment, laptop, documents and a letter in

McLaughlin’s home sent by Williams. In addition, the government proved that the rifle in

question was mailed by McLaughlin to Williams for use in the planned murder.

9
 Because admission of the evidence did not affect the outcome of the trial, it did not
affect Williams’s substantial rights. As such any error was harmless and we would
disregard it. Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.”); United States v. Lewis, 802 F.3d 449,
454 (3d Cir. 2015) (internal quotation marks omitted) (“[T]he over-arching consideration
of Rule 52 is whether an error affects substantial rights.” (quoting United States v.
Adams, 252 F.3d 276, 281 (3d Cir. 2001))).
                                              11
                                            IV.

       Williams also appeals the trial court’s application of the sentencing guidelines in

calculating his sentence for conspiracy to commit murder-for-hire (Count 1). Under any

standard of review, including de novo review, the court did not commit error by applying

Section 2A1.5 and sentencing Williams to a higher term than he would have received had

the court applied Section 2E1.4 (which would have resulted in a sentencing range of 235-

293 months, followed by the mandatory 60 month sentence for Count 2).10 See Br.

Appellant at 19.

       Specifically, Williams takes issue with the decision to apply Section 2A1.5

(Conspiracy or Solicitation to Commit Murder) instead of Section 2E1.4 (Use of

Interstate Commerce Facilities in the Commission of Murder-For-Hire). But the plain

language of Section 2E1.4 compels this result. It directs a court to apply the greater base

offense level of either Section 2E1.4, which is 32, or that of the “underlying unlawful

conduct.” U.S.S.G. § 2E1.4. The underlying conduct is conspiracy to commit murder,

which is covered by Section 2A1.5 of the sentencing guidelines. Section 2A1.5 results in

a higher base offense level—33.

       The court added four levels to the base offense level of 33 in accordance with

Section 2A1.5 because Williams was convicted of conspiracy to commit murder-for-hire.

U.S.S.G. § 2A1.5(b)(1) (“If the offense involved the offer or the receipt of anything of

pecuniary value for undertaking the murder, increase by 4 levels.”). Following Section

10
  Williams has an extensive criminal history record which was not disclosed during trial
but which was considered by the court in his sentencing. At the time of sentencing
Williams had a criminal history category of VI.
                                            12
3C1.1 of the guidelines, the court added two more levels to Williams’s offense level

because of his attempts to corruptly persuade a witness, resulting in an aggregate level of

39. The court then sentenced Williams to 420 months in jail (360 months, plus a

mandatory 60 month consecutive sentence for Count 2, possession and use of a firearm

during and in relation to a crime of violence). The sentencing guidelines, through the

language in Section 2E1.4, plainly require a more severe penalty for conspiracy to

commit murder when another guideline with a higher base offense level is available.

U.S.S.G. § 2E1.4 (“Apply the greater” base offense level of “32; or the offense level

applicable to the underlying unlawful conduct.”).

       Williams has not been able to point to a case in any circuit that contradicts this

application of the guidelines. On the contrary, the Courts of Appeals for the First,

Second, Eighth, and Ninth Circuits have upheld this application of the guidelines. See,

e.g., United States v. Lisyansky, 806 F.3d 706, 709-11 (2d Cir. 2015); United States v.

Temkin, 797 F.3d 682, 695 (9th Cir. 2015); United States v. Smith, 755 F.3d 645, 647 (8th

Cir. 2014); United States v. Dotson, 570 F.3d 1067, 1069-70 (8th Cir. 2009); United

States v. Vasco, 564 F.3d 12, 23 (1st Cir. 2009); see also United States v. Garcia, 204 F.

Supp. 2d 790, 795 (D.N.J. 2002) (applying the cross reference to Section 2A1.5).

       Williams claims the cross reference to Section 2A1.5 creates a redundancy. Due

to the cross reference, he contends, there will almost never be a time when a defendant

convicted of conspiracy to commit murder-for-hire, 18 U.S.C. § 1958, will be sentenced

under Section 2E1.4 and its lower base level offense. We disagree. As noted in United

States v. Smith:

                                             13
        To be convicted of violating 18 U.S.C. § 1958(a) an individual need only travel
        or use a facility of interstate commerce, or cause another to do so, intending a
        murder be committed for hire. Although an offer of something of value in
        exchange for the commission of murder will be made at some point, 18 U.S.C. §
        1958(a) does not require that the offer have been made or accepted before the
        statute is violated. As a violation of 18 U.S.C. § 1958(a) does not require the
        unlawful conduct involve an offer or receipt of something of pecuniary value per
        se, U.S.S.G. § 2E1.4(a)(1) is not superfluous.

755 F.3d at 647. Even if this were not so, we would still uphold the guideline because the

guidelines reflect a deliberate choice to incorporate the cross reference: “The Sentencing

Commission uses the cross-referencing provision in U.S.S.G. § 2E1.4(a) to ensure this

Guidelines section keeps pace with increases to the base offense level set forth in

U.S.S.G. § 2A1.5 and related Guidelines sections, while maintaining a minimum base

offense level of 32.” Temkin, 797 F.3d at 695-96 & n.4 (“A Sentencing Commission

representative confirmed that it was proper to . . . us[e] U.S.S.G. § 2E1.4(a)(2)’s cross-

reference to incorporate U.S.S.G. § 2A1.5’s base offense level of 33.”).

       We agree with our sister circuits that the best interpretation of Section 2E1.4 is its

plain meaning. Because the district court followed the clear instructions of the guidelines

in a reasonable manner, we do not find error.

                                             V.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.




                                             14
