                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4573


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

IZELL DELOREAN GRISSETT, JR., a/k/a Buddy,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Senior
District Judge. (3:13-cr-00134-JFA-2)


Submitted:   March 27, 2015                 Decided:     April 13, 2015


Before KEENAN and    HARRIS,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David Bruce Betts, Columbia, South Carolina, for Appellant.
Nancy Chastain Wicker, William Kenneth Witherspoon, Assistant
United States Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Izell Delorean Grissett, Jr., was charged in five counts of

a seven-count indictment with:                (1) conspiracy to distribute and

distribution of 5 kilograms or more of cocaine and 280 grams or

more of crack cocaine, 21 U.S.C. §§ 841(a)(1), 846 (2012) (Count

One); (2) Hobbs Act robbery, 18 U.S.C. § 1951 (2012) (Count

Four); (3) using and carrying a firearm during and in relation

to a drug trafficking crime and a crime of violence, 18 U.S.C.

§ 924(c) (2012) (Count Five); (4) being a felon in possession of

a firearm and ammunition, 18 U.S.C. § 922(g) (2012) (Count Six);

and (5) possession with intent to distribute 500 grams or more

of   cocaine    and   a    quantity      of     crack      cocaine,      21   U.S.C.    §

841(a)(1) (2012) (Count Seven).                The jury found Grissett guilty

on   all   counts;    he   was       sentenced        to   life   plus    ten    years’

imprisonment.    Grissett noted a timely appeal.

     Counsel    has   filed      a    brief    in     accordance   with       Anders   v.

California, 386 U.S. 738 (1967), conceding that there are no

meritorious     issues     for       appeal     but    questioning       whether       the

district court erred in denying Grissett’s motion for judgment

of acquittal pursuant to Fed. R. Crim. P. 29.                            Grissett has

filed a pro se supplemental brief raising two additional issues:

(1) the district court erred when it issued a modified Allen

charge to the jury; and (2) the district court erred in applying

the murder cross-reference at sentencing.

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       This court reviews de novo the district court’s denial of a

motion for judgment of acquittal.                      United States v. Strayhorn,

743 F.3d 917, 921 (4th Cir.), cert. denied, 134 S. Ct. 2689

(2014).        In    assessing       the       sufficiency      of       the    evidence,         we

determine whether there is substantial evidence to support the

conviction    when        viewed    in     the      light    most        favorable      to    the

Government.         Id.         “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.”             United States v. Jaensch, 665 F.3d 83, 93

(4th Cir. 2011) (internal quotation marks omitted).                                 The test is

whether    “any     rational       trier       of     fact     could      have       found    the

essential    elements       of     the    crime       beyond    a    reasonable         doubt.”

United States v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir.

2009) (internal quotation marks omitted).                            An appellate court

“may   not    weigh       the    evidence        or    review       the       credibility         of

witnesses. . . . [t]hose functions are reserved for the jury.”

United    States    v.     Wilson,       118    F.3d    228,    234       (4th      Cir.     1997)

(internal citation omitted).

       With these standards in mind, we have reviewed the record

and find that the evidence presented was sufficient to support a

conviction as to each of the counts with which Grissett was

charged.      Testimony         established         that     Grissett         was   part     of    a

long-term cocaine and crack cocaine distribution operation in

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the    Columbia,       South    Carolina       area.      According         to     witnesses,

Grissett       and     his    co-conspirator          planned       and    carried       out     a

robbery of one of their suppliers in June 2010, during which

Grissett       shot     and    killed     Hector       Carrion.            Based    on        this

evidence, we find that the district court did not err in denying

Grissett’s motion for judgment of acquittal.

       Turning to Grissett’s pro se claims, he first argues that

the district court erred in issuing a modified Allen charge that

eliminated any mention of the words “minority” or “majority”

with regard to the jurors’ votes.                      The modification was agreed

upon by both parties because the jurors had mistakenly indicated

their split in the votes in their message to the judge.                                        “An

Allen charge, based on the Supreme Court’s decision in Allen v.

United       States,     164    U.S.     492       (1896),     is     ‘[a]n      instruction

advising deadlocked jurors to have deference to each                                  other’s

views,       that     they    should     listen,      with     a    disposition          to     be

convinced, to each other’s argument.’”                       United States v. Burgos,

55    F.3d    933,     935    (4th     Cir.   1995)    (quoting       United       States       v.

Seeright, 978 F.2d 842, 845 n.* (4th Cir. 1992)).                            We review the

content of an Allen charge for abuse of discretion.                                      United

States v. Burgos, 55 F.3d at 935.                       An “Allen charge must not

coerce the jury, and it must be fair, neutral and balanced.”

United       States    v.     Cropp,    127    F.3d    354,     359       (4th   Cir.     1997)

(internal citations omitted).                      We conclude that the district

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court’s charge was not coercive nor can Grissett show that he

suffered any prejudice as a result.                       Finally,              Grissett

challenges         the    application     of       the   murder    cross-reference     at

sentencing.          The     advisory   Sentencing         Guidelines    provide      that

“[i]f       a    victim    was   killed        under     circumstances       that   would

constitute murder under 18 U.S.C. § 1111 had such killing taken

place within the territorial or maritime jurisdiction of the

United States, apply § 2A1.1 (First Degree Murder) . . . if the

resulting offense level is greater than that determined under

this    guideline.”              U.S.     Sentencing         Guidelines       Manual     §

2D1.1(d)(1)         (2013).       The     Government        must     prove    the   facts

underlying a cross-reference by a preponderance of the evidence.

United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012).                             We

find that the testimony established that the killing of Hector

Carrion constituted first degree murder within the meaning of 18

U.S.C. § 1111.            Also, because the application of               § 2D1.1(d)(1)

did    not      increase     Grissett’s    mandatory         minimum    sentence,      his

reliance on the Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013) is misplaced.

       In       accordance    with   Anders,        we   have     reviewed   the    entire

record in this case and have found no meritorious issues for

appeal.         We therefore affirm the district court’s order.                       This

court requires that counsel inform Grissett, in writing, of the

right to petition the Supreme Court of the United States for

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further review.      If Grissett requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this Court for leave to withdraw from

representation.      Counsel’s motion must state that a copy thereof

was served on Grissett.       We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before    this   Court   and   argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED




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