                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 13-4472


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

MARK WILLIAM BAKER, a/k/a Lightning,

               Defendant - Appellant.



                            No. 13-4473


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DAVID CHANNING OILER, a/k/a Gravel Dave,

               Defendant - Appellant.



                            No. 13-4474


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
BRUCE JAMES LONG, a/k/a Bruce Bruce,

                Defendant - Appellant.



                              No. 13-4532


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CARLOS HERNANDEZ,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.         Cameron McGowan Currie,
District   Judge.     (3:12-cr-00430-CMC-2;  3:12-cr-00430-CMC-3;
3:12-cr-00430-CMC-4; 3:12-cr-00430-CMC-13)


Argued:   December 11, 2014                 Decided:   February 25, 2015


Before AGEE, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C.,
Greenville, South Carolina; William Michael Duncan, AUSTIN &
ROGERS, PA, Columbia, South Carolina; Cameron Bruce Littlejohn,
Jr., Columbia, South Carolina, for Appellants.       Julius Ness
Richardson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.      ON BRIEF: John D. Delgado,
BLUESTEIN & NICHOLS, LLC, Columbia, South Carolina, for
Appellant Baker.    William N. Nettles, United States Attorney,
James H. May, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


                                   2
Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

       In     2012,    a     federal     grand         jury      issued   a    107-count

superseding      indictment      against          twenty      individuals     affiliated

with the Rock Hell City Nomad Chapter of the Hells Angels (“the

Chapter”).       This consolidated appeal challenges the convictions

and sentences of four of those individuals.                       For the reasons set

forth below, we affirm the judgment of the district court.



                                          I.

       The Federal Bureau of Investigation participated in a two-

year       interagency      investigation         of    several       motorcycle   gangs

operating      in     and   around     Rock       Hill,     South     Carolina.    That

investigation         revealed    the    Chapter           was    a   motorcycle   gang

affiliated with its nationwide counterpart, had a chapter house

where local meetings took place, had a hierarchy of leadership

and membership, and required its members to pay dues. 1                              The

investigation         revealed       that,         unlike        purely     recreational

motorcycle clubs, many individuals in the Chapter also engaged

in numerous criminal activities.




       1
       The Chapter’s hierarchy included officers, as well as
“full patch” members who are senior to “prospects.”     Chapter
members referred to their meetings as “church” and paid “tithe”
to the Chapter.



                                              4
     In the spring of 2011, Joe Dillulio began cooperating with

the FBI investigation.         Dillulio, a convicted felon originally

from New York, operated a jewelry store in the Rock Hill area.

Based in part on his criminal background, Dillulio gained the

trust of the Chapter through its then-president Dan Bifield. 2

Dillulio allowed the FBI to set up surveillance and recording

equipment in his store and on his telephone.                            He then began

purchasing     narcotics     and    firearms        in     controlled            buys    from

individuals     affiliated    with    the       Chapter.           As       part    of   the

firearms purchases, Dillulio represented that he was sending the

firearms to compatriots in New York who would use the weapons in

drug robberies, then sell the drugs and launder the proceeds

back through him and conspirators inside the Chapter.

     The superseding indictment charged that the Chapter was a

criminal     “enterprise”      and     that         its     full-patch             members,

prospects,     and     associates     operated           through        a    pattern      of

racketeering,     in    violation    of       the    Racketeer      Influenced           and

Corrupt    Organizations      Act     (RICO),        18     U.S.C.          §§     1961-68.

Individuals charged in the superseding indictment were Chapter

officers, as well as full-patch members and prospects, members

of   another    local    motorcycle    gang         (the    Southern         Gentlemen),

     2
       Bifield was also named in the superseding indictment. He
later pleaded guilty to the RICO conspiracy charged in Count 1
and is not a party to this appeal.



                                          5
members   of    the       Red   Devils          (a       “support         group”      for       the       Hells

Angels), and other associates.

      Mark Baker was not only a full-patch member of the Chapter,

but he assumed the role of president during the relevant period

of the charged crimes.                  David Oiler and Bruce Long were also

full-patch members.             Baker, Oiler, and Long were tried together

along with two other co-conspirators whose cases are not before

us.     A jury convicted each of them of conspiracy to violate

RICO,   in   violation          of    18    U.S.C.            §     1962,      (Count       2       or    “RICO

conspiracy”); conspiracy to possess with intent to distribute

and   distribute       five      kilograms               or       more    of     a    mixture            and    a

substance      containing            cocaine,            50       grams     or       more       of       actual

methamphetamine, 500 grams or more of a mixture of and substance

containing      methamphetamine,                as       well       as     several          prescription

medications         (oxycodone,            hydrocodone,                  and      clonazepam),                 in

violation      of    21    U.S.C.          §§    841          and    846,        (Count         3    or     the

“narcotics conspiracy”); and money laundering, in violation of

18 U.S.C. § 1856(a)(3)(B) (Counts 49, 50, and 55, respectively).

In addition, Oiler was convicted of seven counts of narcotics

distribution, four counts of attempted narcotics distribution,

one count of possession of a firearm in furtherance of drug

trafficking, and one count of possession of a machine gun and

silencer.      Long was also convicted of seven counts of narcotics

distribution, one count of attempted narcotics distribution, and

                                                     6
one count of transfer of a firearm.                          While each man raises

various     challenges         to    his    convictions,       none      challenges   his

respective sentence.

      Carlos Hernandez was not a member of the Chapter, but was

an    acquaintance        of    several       members       and    associates.        The

superseding indictment named Carlos Hernandez in only one count,

as a participant in the Count 3 narcotics conspiracy.                            He was

tried    separately       and       convicted.       He    does    not    challenge    his

conviction; instead, he contends there was reversible procedural

error in his sentencing.

        Additional details related to each issue raised on appeal

are     discussed    in    context         below.         Baker,    Oiler,    Long,   and

Hernandez     each    noted          timely       appeals,    and     the    Court    has

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                             II.

                                              A.

        Baker, Oiler, and Long raise three issues jointly.                            They

allege the district court abused its discretion in refusing to

instruct the jury (1) on an entrapment defense and (2) about

multiple conspiracies as an alternative to the charged narcotics

conspiracy.     They also contend the record contains insufficient

evidence of a pattern or continuity to support their convictions

for participating in a RICO conspiracy.

                                              7
                                                     1.

       Baker, Oiler, and Long first challenge the district court’s

refusal to instruct the jury on the defense of entrapment.                                           They

argue       that    they       were     entitled           to     the      instruction          because,

contrary to the court’s conclusion, the record contains more

than    a    scintilla         of     evidence        that        Dillulio        induced       them    to

participate in the charged offenses.

       “Entrapment is an affirmative defense consisting of ‘two

related elements: government inducement of the crime, and a lack

of predisposition on the part of the defendant to engage in the

criminal conduct.’”                 United States v. McLaurin, 764 F.3d 372,

379 (4th Cir. 2014) (quoting Matthews v. United States, 485 U.S.

58, 63 (1988)).             “The district court is the gatekeeper; if the

defendant          does    not      produce          more       than       a    mere    scintilla        of

evidence       of         entrapment,           the         court       need          not     give      the

instruction.”             United States v. Hackley, 662 F.3d 671, 681 (4th

Cir. 2011) (internal quotation marks omitted).                                          An appellate

court       reviews       de     novo      a    defendant’s             claim         that     the   jury

instructions          incorrectly          stated           the     law,        which        includes     a

district       court’s         refusal         to    instruct          a       jury    regarding        the

defense of entrapment.                  United States v. Ramos, 462 F.3d 329,

334 (4th Cir. 2006).

       In the context of entrapment, “inducement” is a term of art

requiring          evidence         that       the        Government           “overreach[ed]           and

                                                      8
[engaged    in]       conduct     sufficiently          excessive     to     implant     a

criminal design in the mind of an otherwise innocent party.”

United    States      v.   Daniel,      3    F.3d    775,    778   (4th     Cir.    1993).

“[S]olicitation of the crime alone is not sufficient to grant

the instruction, as that is not the kind of conduct that would

persuade    an       otherwise    innocent          person    to   commit     a    crime.”

Ramos,    462    U.S.      at   334    (internal       quotation     marks        omitted).

Instead, the evidence must demonstrate “excessive behavior on

the part of the government that could be said to be so inducive

to a reasonably firm person as likely to displace mens rea.”

United States v. DeVore, 423 F.2d 1069, 1072 (4th Cir. 1970).

     Although they each rely on their individual circumstances

to bolster their arguments, Baker, Oiler, and Long collectively

point to Dillulio’s promises of money as evidence suggesting he

crossed the line to unlawfully inducing their criminal behavior.

They claim that Dillulio lured them into criminal activity by

building a relationship with them and giving them more and more

money, all while regaling them with tales of his own financial

profit.         In   addition,        they    contend       that   Dillulio       shrewdly

adopted whatever persona he needed in order to empathize with

and gain the trust of his current target.                     And they contend that

once he had “set the financial hook,” he introduced larger and

larger schemes to fortify each man’s participation.



                                              9
       We disagree with Baker, Oiler, and Long.                      Mentioning the

prototypical motivation for crimes of the sort with which they

were charged – financial profit – is not on its own sufficient

to create a question of whether inducement existed.                      See United

States v. Sanches-Berrios, 424 F.3d 65, 76-77 (1st Cir. 2005)

(“The only inducement that the record reflects is the chance to

make money — and holding out the prospect of illicit gain is not

the sort of government inducement that can pave the way for an

entrapment defense.”); see also United States v. Spentz, 653

F.3d   815,    818-20   (9th       Cir.   2011)   (same);      United    States   v.

Layeni, 90 F.3d 514, 518 n.2 (7th Cir. 1996) (same); United

States    v.   McKinley,      70   F.3d   1307,      1313-14    (D.C.   Cir.   1995)

(same).     There is no evidence in the record that Dillulio ever

engaged in coercive, baiting methods of persuasion that preyed

on Baker, Oiler, or Long’s particular sympathies or financial

vulnerabilities.        Contrast United States v. Kessee, 992 F.2d

1001, 1003-04 (9th Cir. 1993) (holding entrapment instruction

appropriate where government agent “flashed a roll of hundred

dollar bills” and repeatedly pressured defendant to sell drugs

in order to earn money for a period of time after the defendant

lost both of his jobs and expressed concern to the agent about

“where    he   would    get    the    money    for    rent     and   food   for   his

family”).      Indeed, there is no evidence that Dillulio was aware



                                          10
of any financial difficulties on the part of Baker, Oiler, or

Long.

     On    this     record,    we     are      left    with       the   firm    belief      that

Dillulio        “‘merely     offer[ed]         an     opportunity         to       commit    the

crime[s],’” an act that is not sufficient for a reasonable jury

to conclude that he unlawfully induced “the participation of”

Baker, Oiler, or Long.              Ramos, 462 U.S. at 335 (quoting United

States     v.     Harrison,     37     F.3d         133,    136     (4th       Cir.    1994)).

Accordingly,       the     district       court     did     not    err    in    refusing       to

instruct the jury on entrapment. 3                         Matthews, 485 U.S. at 62

(holding    that     a   defendant        is   only    entitled         to    an    entrapment

instruction       when     “there    is     sufficient        evidence         from   which    a

reasonable jury could find entrapment”).



                                               2.

     Baker,       Oiler,     and    Long       also    assert       the      district       court

abused its discretion by refusing to give the jury a multiple-

conspiracies instruction pointing out that the evidence might

show they participated in different conspiracies as opposed to

the single overarching narcotics conspiracy charged in Count 3.


     3
       The district court only addressed the inducement prong of
the offense, and because we agree with its analysis on that
issue, we do not address the separate factor of predisposition
either.



                                               11
They argue that such an instruction was appropriate because the

evidence suggests separate agreements between Dillulio and each

of them individually during discrete time frames rather than

participation in the charged narcotics conspiracy.

       A multiple-conspiracies instruction informs the jury that

it    must    acquit       a     defendant       who    has    not       participated      in    the

conspiracy          charged          even    if        there        is     evidence      that    he

participated         in     a     different,          uncharged          conspiracy.         United

States       v.    Toro,       840    F.2d   1221,      1236        (5th    Cir.    1988).       The

purpose of a multiple-conspiracies instruction is to avoid jury

confusion and the risk that it will “imput[e] guilt to [the

defendant] as a member of one conspiracy because of the illegal

activity of members of [an]other conspiracy.”                                United States v.

Roberts, 262 F.3d 286, 294 (4th Cir. 2001).                                     But it is also

well-established that conspirators need not know “all of the

details of the conspiracy.”                      Hackley, 552 F.3d at 679 (quoting

United States v. Goldman, 750 F.2d 1221, 1227 (4th Cir. 1984)).

The    Government          can       prove   a    single       conspiracy          by   direct   or

circumstantial         evidence         that      a    defendant         knew   its     “essential

object”       by    demonstrating            a    “tacit       or    mutual        understanding”

between the defendants and other conspirators even where the

connection is slight.                  Id.       For that reason, we have held that

such multiple-conspiracy instructions are “not required unless

the proof at trial demonstrates that [a defendant was] involved

                                                  12
only    in     separate      conspiracies        unrelated         to     the     overall

conspiracy      charged      in   the     indictment.”            United       States    v.

Squillacote,      221     F.3d    542,     574    (4th      Cir.       2000)    (internal

quotation marks omitted).

       We    review    the    district     court’s         decision      for    abuse    of

discretion.      United States v. Jeffers, 570 F.3d 557, 566 (4th

Cir. 2009).      The Court will only find that the refusal to give a

multiple-conspiracies         instruction        is    reversible       error    where    a

defendant “suffers substantial prejudice as a result.”                             United

States v. Bartko, 728 F.3d 327, 344 (4th Cir. 2013) (internal

quotation      marks     omitted).          “[T]he         evidence       of     multiple

conspiracies [must have been] so strong in relation to that of a

single conspiracy that the jury probably would have acquitted on

the conspiracy count had it been given a cautionary multiple-

conspiracy instruction.”           Id.

       The district court did not abuse its discretion in refusing

a multiple-conspiracies instruction.                  Baker, Oiler, and Long are

correct that since Dillulio was a Government agent during the

relevant      periods,       he   cannot     serve         as    the    requisite       co-

conspirator      link     between    members          of   the    conspiracy.           See

Hackley, 662 F.3d at 679 (“[A] government agent . . . cannot be

a   co-conspirator.”).            Their    remaining        arguments      assert       that

since each of them dealt with Dillulio at different periods of

time and because there was little-to-no contact between each of

                                           13
them    personally,         they       cannot       have    been     members      of    the    same

conspiracy.       By focusing on the lack of personal and temporal

overlap    between         each     other,         they    ignore    the    broader        charged

conspiracy       and       the    totality         of     the    record    evidence        showing

connections between the charged conspirators and others.

       The conspiracy charged in Count 3 was large, naming fifteen

individuals       alleged         to    have       participated       together,        and     with

others who were not charged, in a narcotics conspiracy spanning

five years.       To satisfy its burden, the Government did not have

to prove that Baker, Oiler, and Long acted in concert with each

other, but rather that they participated in the Chapter-centered

narcotics conspiracy charged in Count 3.                             See United States v.

Leavis,    853    F.2d       215,      218     (4th       Cir.    1988)    (noting      that   the

existence of a single conspiracy depends on “the overlap of key

actors, methods, and goals”); see also United States v. Johnson,

54 F.3d 1150, 11154 (4th Cir. 1995).                             The Government’s evidence

tied Baker, Oiler, and Long individually to others who were also

involved     in        that       same        endeavor,          demonstrating         a   single

conspiracy       to    participate            in    the     sale     and    distribution        of

narcotics in South Carolina, as well as laundering money from

the    proceeds       of    drug       sales    occurring          elsewhere.          While    the

evidence against Baker, Oiler, and Long obviously focused on

their    individual         roles,       it    also       included    evidence         that    they

worked    with    other          members      and       associates    of    the    Chapter      to

                                                   14
purchase      and   sell     narcotics       in    and    around    Rock     Hill.      In

addition, the evidence established that they each agreed with

other indicted and unindicted individuals to aid Dillulio in

laundering the alleged proceeds of the narcotics Dillulio’s New

York compatriots sold.

       That Baker, Oiler, and Long’s specific roles encompassed

only one type of narcotic charged in the conspiracy, or spanned

a discrete period of time within the five-year period charged,

or did not connect with each other and only occasionally had

direct coordination with other participants, does not alter the

conclusion     that    the    evidence       points      to   the   existence    of    the

single   charged      conspiracy.            We    have    often    remarked    on     the

inherent “clandestine and covert” nature of a conspiracy, which

often leads to there being only circumstantial evidence of its

existence.      E.g., United States v. Burgos, 94 F.3d 849, 857 (4th

Cir. 1996); see also Blumenthal v. United States, 332 U.S. 539,

557 (1947) (“Secrecy and concealment are essential features of

successful conspiracy.”).             Moreover, “one may be a member of a

conspiracy without knowing its full scope, or all its members,

and without taking part in the full range of its activities or

over   the    whole    period    of    its    existence.”           United    States    v.

Banks,   10    F.3d    1044,    1054    (4th       Cir.   1993).      And,     once    the

existence      of     the    conspiracy           was    proven,    each     individual



                                             15
defendant’s connection to it need only have been “slight” to tie

him to that charged conspiracy.                Burgos, 94 F.3d at 861.

      Simply put, the evidence of multiple conspiracies is not

“so   strong”    in     this    case    in     relation     to     that    of   a   single

conspiracy      to    suggest     that       “the    jury    probably       would     have

acquitted on the [narcotics] conspiracy count had it been given

a cautionary multiple-conspiracy instruction.”                       Cf. Bartko, 728

F.3d at 344.         Accordingly, the district court did not abuse its

discretion in refusing to give such an instruction.



                                             3.

        Baker, Oiler, and Long next challenge the sufficiency of

the evidence to support their convictions for participating in a

RICO conspiracy.         Count 2 alleged that beginning from 2008 to

the date of the superseding indictment, Baker, Oiler, Long, and

eight     others      conspired         with      each      other     and       uncharged

individuals, as “persons employed by and associated with the

Enterprise      known    as    the     Hells      Angels    Rock    Hell    City     Nomad

Chapter of the Hells Angels,” to violate RICO through a pattern

of racketeering activity consisting of multiple violations of

the     Hobbs    Act,     money        laundering,         arson,     and       narcotics

trafficking.         (J.A. 190-91 (citing 18 U.S.C. § 1962(c), (d)).)

Baker, Oiler, and Long moved for a judgment of acquittal as to

Count 2, arguing that the Government failed to show that the

                                             16
conspiracy    entailed    a     “pattern    of   racketeering”         because    the

predicate acts the Government relied on were “both unrelated and

they don’t have the threat of future conduct based on the time

period[.]”      (J.A.    1579-80.)         The   district      court    denied    the

motions.

     We review the district court’s denial of this motion de

novo, viewing all the evidence and drawing all inferences in

favor of the Government.         United States v. Penniegraft, 641 F.3d

566, 571 (4th Cir. 2011).         We must affirm the verdict so long as

a reasonable fact finder could find the essential elements of

the offense beyond a reasonable doubt.                 United States v. Higgs,

353 F.3d 281, 313 (4th Cir. 2003).

     Under 18 U.S.C. § 1962(d), it is unlawful to “conspire to

violate” RICO.     RICO makes it unlawful “for any person employed

by   or    associated    with    any   enterprise        engaged       in,   or   the

activities of which affect, interstate or foreign commerce, to

conduct or participate, directly or indirectly, in the conduct

of such enterprise’s affairs through a pattern of racketeering

activity.”     18 U.S.C. § 1962(c).              A “pattern of racketeering

activity,”    consists    of     “at   least     two    acts    of     racketeering

activity”     occurring       within   a    ten-year      period,       18    U.S.C.

§ 1961(5), that are related and “amount to or pose a threat of

continued criminal activity.”           H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229, 239 (1989).

                                       17
      The Government initially responds that Baker, Oiler, and

Long’s      challenge     fails     because      “so    long     as       the   necessary

conspiratorial agreement exists, no pattern of racketeering acts

with continuity and relatedness need be proven to sustain a RICO

conspiracy        conviction.”      (Resp.      Br.    52.)      The      Government   is

partially correct.            In Salinas v. United States, 522 U.S. 52

(1997), the Supreme Court held that a RICO “conspirator must

intend to further an endeavor which, if completed, would satisfy

all of the elements of a substantive criminal offense,” and that

he may do so without personally committing or agreeing to commit

the   two    or    more   acts     of    racketeering       activity        required   to

establish a “pattern.”            Id. at 63, 65; see also United States v.

Mouzone, 687 F.3d 207, 213 (4th Cir. 2012) (holding that because

a RICO conspiracy does not “criminalize mere association with an

enterprise,” “criminal liability will attach only to the knowing

agreement     to    participate     in    an    endeavor      which,       if   completed

would     constitute      a    violation        of    the     substantive       statute”

(internal quotation marks omitted)).

      To establish a RICO conspiracy, the Government need not

prove     that     a   “pattern     of     racketeering         activity”       actually

occurred.        It need only prove that the conspirators intended to

further      an     endeavor      that     would       include        a    “pattern    of

racketeering activity.”             Because the intended objective of a

“pattern of racketeering activity” has the same definition in

                                           18
either context, there still must be some proof in the conspiracy

prosecution that the conspiracy was to commit acts that would

satisfy the relatedness and continuity criteria of a “pattern of

racketeering      activity.”        The    concepts       of    “relatedness”      and

“continuity” do not vanish simply because this is a conspiracy

rather than a substantive RICO violation.                      Instead, it is the

nature of the Government’s burden, and the proof sufficient to

meet it, that necessarily differ between a RICO conspiracy and a

substantive RICO violation.           E.g., United States v. Cianci, 378

F.3d 71, 88 (1st Cir. 2004) (“For purposes of a RICO conspiracy,

the sufficiency question[] boils down to whether a jury could

have found that the defendants intended to further an endeavor

which,     if    completed,       would    have     satisfied         the    ‘pattern’

requirement of RICO.” (citing Salinas, and then analyzing under

H.J. Inc.)); United States v. Corrado, 227 F.3d 543, 554 (6th

Cir. 2000) (same).

     The    Government      has   satisfied       its   burden       to    establish   a

conspiracy to engage in a “pattern of racketeering activity.”

In H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239

(1989),    the    Supreme     Court   explained         that    to    be    “related,”

predicate acts must “have the same or similar purposes, results,

participants, victims, or methods of commission, or otherwise

[be] interrelated by distinguishing characteristics [as opposed

to being] isolated events.”               Id. at 240 (quoting § 3575(e)).

                                          19
While   Baker,     Oiler,   and    Long    argue     their    membership     in    the

Chapter     was   incidental    to   any       criminal   activity,    the   record

belies that assertion.            The Government’s evidence demonstrated

that the Chapter served as a central force in the conspiracy.

Its members and associates were the participants.                     The Chapter

received proceeds from the illicit activities.                    The presidents

of    the   Chapter    (first     Dan     Bifield,     later    Baker)     received

kickbacks from Dillulio in order to solicit new participants to

the activities, recommend who was trustworthy or could be used

for particular roles, and generally to keep other conspirators

“in   line.”      In   addition,     the       conspirators    used   common      drug

suppliers and other connections to facilitate their own roles.

      The record also shows continuity of criminal enterprise.

While Baker, Oiler, and Long each participated in the conspiracy

for a more limited timeframe, the broader charged conspiracy

showed that Chapter members were engaged in ongoing criminal

activity that had no inherent end.               See id. at 241 (stating that

continuity can be shown by either “a closed period of repeated

conduct, or . . . past conduct that by its nature projects into

the future with a threat of repetition”).                     Indeed, the record

suggests that the instigation of criminal proceedings is what

ended the conspiracy.           See, e.g., Heinrich v. Waiting Angels

Adoption Servs., 668 F.3d 393, 410 (6th Cir. 2012) (“‘The lack

of a threat of continuity of racketeering activity cannot be

                                          20
asserted merely by showing a fortuitous interruption of that

activity such as by an arrest, indictment or guilty verdict.’”

(quoting United States v. Busacca, 936 F.2d 232, 238 (6th Cir.

1991)).     This evidence is sufficient to satisfy the Government’s

burden    of    showing     that    Baker,      Oiler,   and    Long       conspired   to

engage in an endeavor that sought to undertake a “pattern” of

racketeering activity.



                                           B.

       While the above analysis resolves Baker’s appeal, Oiler,

Long, and Hernandez each raise an additional separate claim of

error.      Oiler     challenges     the     sufficiency       of    the    evidence   to

support his conviction for possession of a firearm during a drug

trafficking crime.           Long raises a sufficiency of the evidence

challenge to his conviction for transferring a firearm for use

in a crime of violence.             Hernandez contends the district court

committed procedural error during sentencing by including a 1989

state felony conviction in his criminal history computation and

that   he      is   entitled   to    be    resentenced.             Each    argument   is

addressed in turn.



                                           1.

       Oiler challenges the sufficiency of the evidence to support

his    conviction      on   Count    37,     that    “beginning        in    or   around

                                           21
February of 2012 up to June 7, 2012, [he] knowingly did carry a

firearm during, and in relation to, and did possess the firearm

in furtherance of, a drug trafficking crime,” in violation of 18

U.S.C. § 924(c).           (J.A. 208.)          In his oral motion for judgment

of    acquittal,     Oiler       argued   the       evidence     was    insufficient          to

support his guilt because the audio recording the Government

relied on to show Oiler stating he possessed a gun during a drug

deal   was    muffled      and    could    be       interpreted       differently.           The

district court denied the motion.

       The Court reviews the district court’s denial of a motion

for judgment of acquittal de novo.                        United States v. Hamilton,

699 F.3d 356, 361 (4th Cir. 2012).                        The Court will uphold the

jury’s    verdict     if,    “viewing       the      evidence     in    the    light     most

favorable to the government, there is substantial evidence in

the record to support the verdict.”                       United States v. McFadden,

753 F.3d 432, 444 (4th Cir. 2014).                         “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).

       To support a conviction under § 924(c), the record must

contain      evidence      from     which       a     jury     could    find        beyond    a

reasonable doubt that the defendant (1) possessed a firearm, and

(2)    that    the       possession       was       “in    furtherance         of    a   drug

                                            22
trafficking crime[.]”             Jeffers, 570 F.3d at 565.          A firearm is

possessed “in furtherance of a drug crime,” when “the possession

of   a       firearm    furthered,     advanced,    or   helped   forward        a    drug

trafficking crime.”              United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002).

         The    record    supports     Oiler’s    conviction.       At    trial,       the

Government        introduced       a   recording     from    a    March    1,        2012,

conversation           between    Oiler   and    Dillulio   during       which       Oiler

picked up money from Dillulio in order to purchase narcotics.

As Oiler prepares to leave, Dillulio says, “do well nobody’s

gonna bother you with money [sic].”                      Oiler responds, “F[---]

I’ve got my gun.”           (J.A. 1888.)        While Oiler challenges what the

voices on the recording actually say, that constitutes a factual

dispute that the jury was entitled to determine.                     Viewed in the

light most favorable to the Government, the recording is proof

that Oiler carried a gun as he went to purchase narcotics for

Dillulio. 4       As such, the district court did not err in denying

Oiler’s motion for judgment of acquittal.


         4
       Oiler’s additional assertion that a single reference to
carrying a firearm cannot support his conviction finds no
support in the statute or case law.        18 U.S.C. § 924(c)
(requiring that a person “possess[] a firearm” “in furtherance
of” a drug trafficking crime); see, e.g., United States v.
Perry, 560 F.3d 246, 256 (4th Cir. 2009) (“In order to convict
[the defendant] of a § 924(c) crime, the government was only
required to prove that [he] possessed a firearm in furtherance
of a single drug-trafficking offense[.]”).   Nor is there merit
(Continued)
                                           23
                                             2.

        Long challenges the sufficiency of the evidence to support

his   conviction     on   Count    70,       that   he   “knowingly      did    transfer

firearms, that is, a Norinco model SKS 7.62 caliber rifle and a

Tanfoglio    Titan    model      .25   caliber        pistol,    knowing       that    the

firearms    would    be   used    in     a    crime      of   violence    and    a    drug

trafficking crime,” in violation of 18 U.S.C. § 924(h). 5                            (J.A.

228.)     Long does not dispute that on September 28, 2011, he sold

the two firearms to Dillulio.                 Instead, Long argues the record

evidence does not prove beyond a reasonable doubt that he “knew”

when he transferred the firearms to Dillulio that they would be

used to commit a crime of violence.

      Because Long did not move for a judgment of acquittal on

this count, we review for plain error.                        See United States v.

Wallace, 515 F.3d 327, 332 (4th Cir. 2008) (discussing standard

of review for sufficiency of evidence claims that have not been




to Oiler’s argument that the conviction cannot stand because the
district court dismissed a count (Count 36) that was added
against him at the same time as Count 37. The dates set out in
Count 37 encompass the March 1, 2012, act of possession, and
that was the basis for the Government’s prosecution of Count 37.
We therefore reject these arguments as well.
     5
        Eighteen U.S.C. § 924(h) states: “Whoever knowingly
transfers a firearm, knowing that such firearm will be used to
commit a crime of violence . . . or [a] drug trafficking crime
. . . shall be imprisoned not more than 10 years, fined in
accordance with this title, or both.”



                                             24
preserved below); see also United States v. Olano, 507 U.S. 725,

732-34 (1993) (stating that to demonstrate plain error, there

must be (1) error; (2) that was plain; and (3) that affected the

defendant’s “substantial rights”).               The jury verdict will be

upheld if “there is substantial evidence, viewed in the light

most favorable to the Government, to support it.”               United States

v. Cardwell, 433 F.3d 378, 390 (4th Cir. 2009).

     Applying these standards, we affirm Long’s conviction for

violating      §    924(h).     At     trial,    the   Government    introduced

recordings in which Dillulio and Long discussed Dillulio’s plan

to have his New York “crew” rob a “Mexican . . . with like four

pounds of meth,” then sell it in Canada and give the proceeds to

Dillulio    to      be   laundered    locally.     (J.A.   1728,     1733.)    A

conversation between Dillulio and Dan Bifield recorded around

this same time featured Bifield telling Dillulio that Long could

obtain an AK47 for him.              A later conversation between Dillulio

and Long confirms that Bifield had relayed this information to

Long, and that Long needed to check what he could supply.                  A few

days later, Long told Dillulio that he could provide a firearm

“similar” to the AK47.          (J.A. 435.)       During that conversation,

Long also mentioned “find[ing] out who’s got some [drugs] and

knock[ing] them off,” and Dillulio again mentioned the New York

robbery to obtain narcotics for resale.                (J.A. 436.)      Lastly,

during   the       firearms   transfer,    Dillulio    asked   how   the   rifle

                                         25
works,    and    Long    replied      that     “whoever         is    going       to   get   it,

they’ll    know    what     to    do.”        (J.A.       1221.)           This    record     is

sufficient for a jury to have concluded that Long “knew” from

both Bifield and Dillulio directly that the firearm would be

used “in a crime of violence or a drug trafficking crime.”                                    We

therefore affirm this conviction.



                                             3.

       Hernandez was charged and convicted of participating in the

narcotics       conspiracy       (Count      3).          The     pre-sentence            report

included three criminal history points for a 1989 South Carolina

conviction      for     criminal      sexual       conduct,      third      degree        (“1989

state    felony    conviction”).            Consequently,            it    set    Hernandez’s

criminal history category at IV, which, when coupled with his

total offense level of 36, resulted in a Sentencing Guidelines

range of 262 to 327 months’ imprisonment.

       Over     Hernandez’s        objection         to     the       criminal           history

computation,       the    district         court     adopted         all    of     the    PSR’s

recommendations and sentenced Hernandez to the low end of the

calculated        Sentencing           Guidelines           range,           262         months’

imprisonment.

       Hernandez      argues,    as    he    did    below,       that      his     1989    state

felony conviction falls outside the 15-year look-back period for

when    prior    offenses    can      be    included      in    computing          a   criminal

                                             26
history category. 6     He contends that his term of imprisonment for

the 1989 state felony conviction ended on December 31, 1996;

that the 15-year look-back period thus expired on December 31,

2011; and that there was no evidence in the record that his

participation in the narcotics conspiracy began prior to January

2012.       Accordingly,     he     argues      that   his   1989   state     felony

conviction should not have been included as part of his criminal

history computation.

     The     Government      bore    the     burden    of    proving    the    facts

necessary     to   establish       the   applicability       of   any   Guidelines

enhancements by a preponderance of the evidence.                    United States

v. McGee, 736 F.3d 263, 271 (4th Cir. 2013).                        We review the

district court’s factual findings for clear error, and its legal

conclusions de novo.         Id.    We will reverse under the clear error

standard    only   if   we   are     “‘left     with   the   definite    and   firm

conviction that a mistake has been committed.’”                     United States


     6
       U.S.S.G. § 4A1.2 instructs how a defendant’s                       criminal
history is to be computed. Subsection (e)(1) states:
     Any prior sentence of imprisonment exceeding one year
     and one month that was imposed within fifteen years of
     the defendant’s commencement of the instant offense is
     counted.      Also   count   any    prior   sentence   of
     imprisonment   exceeding   one   year   and  one   month,
     whenever imposed, that resulted in the defendant being
     incarcerated during any part of such fifteen-year
     period.




                                           27
v.   Stevenson,        396   F.3d     538,     542   (4th    Cir.      2005)   (quoting

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

       Because the record contains ample evidence to support the

district        court’s    finding    that     Hernandez     participated        in   the

narcotics conspiracy in December 2011, we hold that it did not

err by including Hernandez’s 1989 state felony conviction as

part       of   his    criminal     history       computation.         That    evidence

consisted of both telephone toll records and recordings from

wiretapped telephone conversations and in-person conversations.

Although there are not recordings of Hernandez talking to any

co-conspirators during December 2011, the Government’s evidence

nonetheless        proved    by   a   preponderance         of   the    evidence      that

Hernandez was participating in the conspiracy during that month.

       At trial, the Government introduced evidence that Dillulio

would       purchase      narcotics     from      co-conspirator        Oiler,     whose

supplier was co-conspirator Kerry Chitwood, 7 whose supplier was

Hernandez.        In December 2011, the FBI only had recordings of the

telephone and in-person conversations between Dillulio and Oiler

because they had not yet obtained wiretap warrants for Oiler and

Chitwood’s        telephones.         In   January     2012,     the     FBI   obtained

permission to wiretap Oiler’s telephone, and in February 2012,

       7
       Chitwood was also named in the superseding indictment; he
pleaded guilty to the narcotics conspiracy charged in Count 3
and is not a party to this appeal.



                                             28
they    wiretapped          Chitwood’s    telephone.         Based       on     when    the

Government began obtaining this evidence, then, it introduced

recordings    of       conversations       between      Oiler   and       Dilluio      that

occurred in December 2011, recordings of conversations between

Chitwood     and       Oiler    (and     between    Oiler    and        Dillulio)      that

occurred     in    January       2012,     and     recordings      of     conversations

between Hernandez and Chitwood (and between Chitwood and Oiler,

and Oiler and Dillulio) in February and March 2012.                           Because it

lacked audio recordings of conversations between Hernandez and

Chitwood before February 2012, the Government introduced toll

records    from        December    2011     through      February        2012     showing

telephone calls placed to and from the numbers identified as

belonging to Oiler, Chitwood, and Hernandez.

       Cross-referencing this data demonstrates that the pattern

established       by    a   “complete”     set     of   recordings       arranging      the

deals in February and March 2012 is consistent with a pattern

also indicated by the combination of “incomplete” recordings and

telephone toll records for similar deals in January 2012 and —

fatal to Hernandez’s claim on appeal — December 2011.                                  Thus,

while Hernandez was not recorded on a wiretap in December 2011,

the evidence nonetheless demonstrated, by a preponderance of the

evidence, a pattern of telephone communications from each lower-

level conspirator to Hernandez in December 2011.



                                            29
       In sum, then, the district court did not clearly err in

determining that the Government established by a preponderance

of the evidence that in December 2011, Hernandez was supplying

narcotics   to   Chitwood,    on    behalf    of    Oiler,    to   be   sold    to

Dillulio.     Because   the    evidence      connected    Hernandez      to    the

narcotics conspiracy in December 2011, he was serving a term of

imprisonment for his 1989 state felony conviction during the 15-

year    look-back   period    set   out      in    U.S.S.G.   §    4A1.2(e)(1).

Accordingly, the district court did not err by including points

for the 1989 state felony conviction in Hernandez’s criminal

history computation.



                                    III.

       For the reasons set forth above, we affirm the judgments of

conviction and sentences of Baker, Oiler, Long, and Hernandez.



                                                                        AFFIRMED




                                     30
