                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4843


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PERRY COUSINS, a/k/a Pzo,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.     Rebecca Beach Smith,
Chief District Judge. (4:10-cr-00047-RBS-TEM-1)


Submitted:   July 17, 2012                       Decided:   July 31, 2012


Before MOTZ and    DAVIS,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Howard J. Zlotnick, Robert E. Bradenham, II, Assistant
United States Attorneys, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Perry Cousins appeals his convictions following a jury

trial      on    charges          of    a    racketeering          conspiracy        (Count         1),    in

violation         of     18        U.S.C.         §     1962(d)      (2006);         conspiracy           to

distribute and possess with intent to distribute drugs (Count

2), in violation of 21 U.S.C. § 846 (2006); conspiracy to commit

robbery         (Count       3)    and        robbery        (Counts     6,     9,    and       12),       in

violation        of    18     U.S.C.          §   1951(a)      (2006);         murder      in       aid    of

racketeering           activity             (Count     4),    in    violation         of       18   U.S.C.

§ 1959(a)(1) (2006); use of a firearm in relation to a crime of

violence and resulting in death (Counts 5 and 13), in violation

of    18   U.S.C.        §    924(c)(1),              (j)   (2006);      use    of    a    firearm         in

relation to a crime of violence (Counts 7, 10, and 19), in

violation of 18 U.S.C. § 924(c)(1); possession with intent to

distribute fifty grams or more of cocaine base (Counts 8 and

11), in violation of 21 U.S.C. § 841(a)(1) (2006); assault with

a    dangerous         weapon          and    assault        resulting         in    serious        bodily

injury      (Count       18),          in    violation        of    18    U.S.C.      §        1959(a)(3)

(2006); possession of an unregistered firearm (Count 28), in

violation of 26 U.S.C. §§ 5841, 5845(a) & (d), 5861(d), & 5871

(2006); and possession of a firearm by a convicted felon (Count

29), in violation of 18 U.S.C. § 922(g)(1) (2006).                                         On appeal,

Cousins challenges the sufficiency of the evidence supporting

the    racketeering-related                    convictions         and    Counts          18    and       29.

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Cousins also contends that the district court erred in failing

to declare a mistrial following an allegedly improper remark by

counsel for the Government.          Finding no error, we affirm.

            A jury verdict must be upheld “if there is substantial

evidence, viewed in the light most favorable to the Government,

to support it.”         United States v. Perkins, 470 F.3d 150, 160

(4th Cir. 2006).          “[S]ubstantial 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).

We draw all reasonable inferences from both circumstantial and

direct evidence in the government’s favor.                            United States v.

Harvey, 532 F.3d 326, 333 (4th Cir. 2008).                           However, “[w]e may

not   weigh    the    evidence      or     review        the    credibility          of     the

witnesses     [because]    [t]hose       functions         are       reserved       for     the

jury.”   United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997) (internal citation omitted).

            Cousins     first    argues        that   the      Government          presented

insufficient    evidence       of   an     enterprise          for    purposes       of     the

racketeering-related       offenses        set     out    in     Count       1.      Because

Cousins failed to file a motion for judgment of acquittal in the

district court, we review only for plain error.                                   See United

States   v.    Wallace,    515      F.3d       327,      331-32       (4th    Cir.        2008)

(discussing standard of review).                 We conclude that, viewed in

                                           3
the light most favorable to the Government, there was no error—

plain or otherwise—because the testimony was sufficient for a

reasonable jury to find the existence of an enterprise.                                See 18

U.S.C. § 1961(4) (2006); Boyle v. United States, 556 U.S. 938,

946 (2009) (defining enterprise); United States v. Turkette, 452

U.S. 576, 583 (1981) (same).

             Cousins        next    argues      that      the   Government       presented

insufficient evidence to prove that he committed the assault

charged in Counts 18 and 19 in order to maintain or increase his

position in the racketeering enterprise.                        “The phrase ‘for the

purpose of . . . maintaining or increasing position in . . .’

the enterprise should be accorded its ordinary meaning.”                               United

States      v.    Fiel,     35     F.3d    997,       1004    (4th    Cir.     1994).      A

defendant’s motive “of retaining or enhancing [his] position [is

met] . . . if . . . a jury could properly infer that the

defendant committed his violent crime because he knew it was

expected of him by reason of his membership in the enterprise or

that   he    committed       it     in    furtherance[]         of    that     membership.”

United     States      v.   Tipton,       90   F.3d     861,    891     (4th    Cir.    1996)

(internal quotation marks omitted).                         Moreover, “self-promotion

need   not       be   the   defendant’s        only    or    primary     concern.”        Id.

(internal quotation marks omitted).                     Evidence that an enterprise

has    a    “polic[y]       of     retaliatory         violence       against     any     who

sufficiently          antagonized        any   of   its      members”    may     support    a

                                               4
finding that violence was committed, in part, to maintain or

increase position in the enterprise.                  Id.        With these standards

in mind and viewing the evidence in the light most favorable to

the Government, we conclude that the testimony was sufficient

for a reasonable jury to find that Cousins committed the charged

assault in order to maintain or increase his position in the

enterprise.

             Cousins      also    argues     that     the    Government        failed    to

present sufficient evidence to demonstrate that the firearm he

possessed in connection with the assault charged in Count 18 was

operable.       Because the Government did not need to prove that the

firearm      was     operable,      we     conclude       that    the    evidence       was

sufficient to convict Cousins on Count 29.                       See United States v.

Williams, 445 F.3d 724, 732 n.3 (4th Cir. 2006) (citing cases

and noting that firearm is not required to be operable to meet

definition of 18 U.S.C. § 921(a)(3) (2006)).

             Finally, Cousins argues that the district court erred

in failing to declare a mistrial following an allegedly improper

remark    by     a     Government     attorney      during        a   witness’    cross-

examination.         An improper remark by counsel “may so infect the

trial    with      unfairness    as   to    make    the     resulting    conviction       a

denial of due process.”             United States v. Lighty, 616 F.3d 321,

359   (4th      Cir.    2010)    (internal       quotation       marks   and     brackets

omitted).       In this case, however, the district court established

                                             5
through   voir   dire   that   no   juror   actually    heard   the   alleged

improper remark by the Government’s counsel.            Thus, the district

court did not err in failing to declare a mistrial.               See United

States v. Olano, 507 U.S. 725, 732 (1993) (detailing plain error

standard).

           Accordingly, we affirm the district court’s judgment

and deny Cousins’ motion to reconsider the denial of his motion

to   rescind   counsel’s   opening    brief.     We    dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.



                                                                      AFFIRMED




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