                                                                      NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 09-1080
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    JEFFREY GRAY,
                                              Appellant


                       Appeal from the United States District Court
                               for the District of Delaware
                            (Crim. No. 1-07-cr-00137-001)
                         District Judge: Hon. Joseph J. Farnan, Jr.


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 24, 2010

      Before: McKEE, Chief Judge, and AMBRO and CHAGARES, Circuit Judges

                           Opinion Filed: September 27, 2010

                                           OPINION

McKEE, Chief Judge.

       Jeffrey Gray appeals the district court’s judgment of conviction and sentence. For

the reasons that follow, we will affirm.

                                              I.



                                              1
       Because we write primarily for the parties, we will recite only the facts and

procedural history that are necessary for the disposition of this appeal.

       On October 11, 2007, a federal grand jury returned a five-count indictment

charging Gray with conspiracy to distribute more than five kilograms of cocaine, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 21 U.S.C. § 846 (Count I); attempted

possession with the intent to distribute more than 500 grams of cocaine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B) and 21 U.S.C. § 846 (Count II); possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count III);

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Count IV); and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count

V). A jury convicted Gray on all counts. The district court sentenced Gray to a total of

480 months imprisonment. The judgment of conviction and sentence was entered on

January 12, 2009.

                                             II.

       On appeal, Gray argues that there was insufficient evidence to support the jury’s

conviction on Count I, conspiracy to distribute more than five kilograms of cocaine, and

Count IV, money laundering.

       “Where, as here, a defendant does not preserve the issue of sufficiency of the

evidence by making a timely motion for judgment of acquittal at the close of the

evidence, this Court reviews the sufficiency of the evidence for plain error.” United



                                              2
States v. Mornan, 413 F.3d 372, 381 (3d Cir. 2005). When evaluating a sufficiency of the

evidence challenge, “[w]e must view the evidence in the light most favorable to the

government and must sustain a jury’s verdict if ‘a reasonable jury believing the

government’s evidence could find beyond a reasonable doubt that the government proved

all the elements of the offenses.’” United States v. Rosario, 118 F.3d 160, 163 (3d Cir.

1997) (quoting United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)).

Accordingly, “[a] claim of insufficiency of evidence places a very heavy burden on the

appellant.” United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).

       Gray contends that the evidence was insufficient to support the jury’s finding that

he was guilty of the offense charged in Count I. The government relies on Gray’s very

cursory discussion of the issue to assert that Gray does not actually contest that the

evidence was sufficient to demonstrate that he participated in a cocaine conspiracy.

Rather, the government asserts that Gray claims that the evidence was only insufficient to

prove that the conspiracy involved more than five kilograms of cocaine. Gray does not

rebut the government’s reading of his brief, and we cannot discern a contrary argument.1

       Gray’s co-conspirator, Jeffrey Shepherd, testified that he began having regular

meetings with Gray sometime in the winter of 2005 and that he would sell three




       1
         Gray’s brief devotes less than one page to his argument that the evidence was
insufficient to support his conviction on Count I and fails to cite even a single case or law
for support. Although Gray had the option to file a reply brief, in which he could have
rebutted the government’s interpretation of his argument, no reply brief was filed.

                                              3
kilograms of cocaine to Gray at each meeting. Shepherd testified that he was selling Gray

an average of twelve kilograms of cocaine per month by the beginning of 2006. Gray’s

co-conspirator, Bradley Torrence, testified that he twice witnessed Shepherd sell four

kilograms of cocaine to Gray. This is more than enough evidence for the jury to have

concluded that the conspiracy involved more than five kilograms of cocaine, and Gray’s

argument to the contrary is nothing short of frivolous.

       Gray also contends that the evidence was insufficient to support the jury’s finding

that he was guilty of Count IV, money laundering. According to Gray, the evidence is

insufficient to convict him of money laundering because there was no evidence that he

engaged in “deceptive conduct” when he used funds obtained from cocaine sales to

gamble and purchase a vehicle. The argument ignores the fact that the offense Gray was

convicted of does not require proof of “deceptive conduct.” See 18 U.S.C. §

1956(a)(1)(A)(i).

       Rather, § 1956(a)(1)(A)(i), requires that the government prove: “(1) an actual or

attempted financial transaction [;] (2) involving the proceeds of specified unlawful

activity; (3) knowledge that the transaction involves the proceeds of some unlawful

activity; and (4) . . . an intent to promote the carrying on of specified unlawful activity.”

United States v. Morelli, 169 F.3d 798, 804 (3d Cir. 1999). Gray is correct that 18 U.S.C.

§ 1956 criminalizes financial transactions intended “to conceal or disguise the nature, the

location, the source, the ownership, or the control of the proceeds of specified unlawful



                                               4
activity.” 18 U.S.C. § 1956(a)(1)(B)(i). However, 18 U.S.C. § 1956 also criminalizes

engaging in financial transactions, knowing that the property involved represents the

proceeds of unlawful activity, “with the intent to promote the carrying on of specified

unlawful activity.” 18 U.S.C. § 1956(a)(1)(A)(i). Gray was convicted of violating

Section 1956(a)(1)(A)(i) and not Section 1956(a)(1)(B)(i). Accordingly, concealment

was not an element of the crime.

                                             III.

       Gray also challenges the district court’s calculation of his sentence. Specifically,

he challenges its determination of drug weight under U.S.S.G. § 2D1.1(c)(2) and the

application of the reckless flight enhancement under U.S.S.G. § 3C1.2. Relying on

Apprendi v. New Jersey, 530 U.S. 466 (2000), Gray argues that both of these issues

should have been presented to a jury to be proved beyond a reasonable doubt. This

argument can readily be dismissed based upon our subsequent ruling in United States v.

Grier, 475 F.3d 556, 562 (3d Cir. 2007) (en banc) (“Judicial factfinding in the course of

selecting a sentence within the permissible range does not offend the Fifth and Sixth

Amendment rights to a jury trial and proof beyond a reasonable doubt.”). In Grier, we

also held that “the right to proof beyond a reasonable doubt does not apply to facts

relevant to enhancements under an advisory Guidelines regime.” 475 F.3d at 565; see

also United States v. Fisher, 502 F.3d 293, 306 (3d Cir. 2007) (a district court may make

findings of fact that are necessary to the determination of the applicability of a sentence



                                              5
enhancement by a preponderance of the evidence). We also affirmed that “district courts

should continue to make factual findings by a preponderance of the evidence and courts

of appeals should continue to review those findings for clear error.” Grier, 475 F.3d at

561.

       Gray also argues that the district court erred in finding that the cocaine conspiracy

involved a weight of 50 to 150 kilograms of cocaine, a fact that was used to calculate his

offense level under U.S.S.G. § 2D1.1(c)(2). Gray contends that he was not a “direct co-

conspirator with Shepard and Torrence” and that “any weight of cocaine they had shipped

should not be lumped on him.” Appellant Brief 15. Additionally, he argues that the

judge should have calculated his offense level using a weight of six kilograms or less

because he was only involved in the one transaction on October 30, 2006.

       There is enough evidence for the district judge to have concluded by a

preponderance of the evidence that the cocaine conspiracy involved a weight of 50 to 150

kilograms. By finding Gray guilty of Count I, the jury established that the conspiracy

between Shepherd and Gray began in January 2005 and lasted until their arrest on

October 30, 2006. Thus, the district court correctly calculated the drug weight based on

the entire period of the conspiracy, rather than limiting its calculation of the drug weight

to the transaction between Shepherd and Gray on October 30, 2006. Indeed, given

Sheperd’s testimony, the weights attributed to Gray for purposes of sentencing are

conservative.



                                              6
       Shepherd testified that, beginning in early 2005, he would sell cocaine to Gray

once every week or week and a half. At first, these sales involved one kilogram of

cocaine, but by the winter of 2005, Shepherd was regularly selling Gray three kilograms

of cocaine at each meeting. Additionally, Gray would sometimes purchase more than

three kilograms of cocaine. Gray continued to buy three kilograms of cocaine every week

to week and a half from Shepherd at least until the spring of 2006. Moreover, Shepherd

testified that on October 30, 2006, Gray gave him $60,000 to purchase three kilograms of

cocaine. According to Shepherd’s testimony, he directly sold to Gray at least 50

kilograms of cocaine over the course of the conspiracy. Therefore, the district court did

not clearly err in finding that the drug weight amounted to between 50 and 150 kilograms

of cocaine throughout the duration of the conspiracy.

       Lastly, Gray argues that the district court improperly applied a two-level sentence

enhancement for reckless endangerment during flight. Under the Guidelines, a defendant

receives a two-level sentence enhancement “if the defendant recklessly created a

substantial risk of death or serious bodily injury to another person in the course of fleeing

from a law enforcement officer.” U.S.S.G. § 3C1.2. Gray argues that the factual record

does not support this sentence enhancement. We review a district court’s application of

the Sentencing Guidelines to the facts for abuse of discretion. United States v. Hawes,

523 F.3d 245, 248 (3d Cir. 2008).

       The testimony at trial established that Gray floored the accelerator in his car and


                                             7
drove directly at officers. Gray almost ran over one officer, and he barley missed a head-

on collision with two surveillance vehicles while driving at a speed of 40 to 50 miles per

hour. Testimony also established that Gray sped through two public hotel parking lots

while attempting to flee.

       The district court relied on that testimony in concluding that Gray recklessly

endangered the lives of others while fleeing from law enforcement, and in applying the

two-level enhancement pursuant to U.S.S.G. § 3C1.2. The court did not clearly err in

doing so.

                                            IV.

       For all of the above reasons, we will affirm the district court’s judgment of

conviction and sentence.




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