                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4907


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TRAVIS DORAN RAMSEUR, a/k/a 50,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.          Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-21)


Argued:   March 26, 2010                   Decided:    May 13, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan    wrote   the
opinion, in which Judge Motz and Judge King joined.


ARGUED: Nathan J. Taylor, ANDERSON TERPENING, PLLC, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: William R. Terpening, ANDERSON TERPENING, PLLC,
Charlotte, North Carolina, for Appellant.       Edward R. Ryan,
Acting United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

       Appellant Travis Ramseur (“Ramseur”) appeals his conviction

and    sentencing      for   conspiracy     to     possess   with    intent    to

distribute cocaine, cocaine base, and marijuana in violation of

18 U.S.C. § 846.         He challenges the district court’s decision

not to declare a mistrial after a witness mentioned a murder

charge during examination, as well as its decision to apply a

sentencing enhancement under U.S.S.G. § 2D1.1(d).                   Constrained

by the applicable standards of review, we affirm.



                                       I.

       During the course of Ramseur’s four-day trial and four-day

sentencing hearing, the government presented evidence composed

largely of witness testimony.           We provide a general recitation

of    the   relevant   facts,   but   focus   on    particular    testimony    as

needed.      We set forth the facts in the light most favorable to

the government, the prevailing party below.                  United States v.

Mehta, 594 F.3d 277, 279 (4th Cir. 2010).



                                       A.

       Between 1999 and 2004, Rickie Eckles (“Eckles”) ran a drug

distribution      operation     in    and     around     Statesville,        North

Carolina, in Iredell County.           The operation involved dozens of

individuals      and    large   quantities       of    cocaine,     crack,    and
                                       2
marijuana.              Sometime      in     the          early     2000s,   Eckles        formed    an

association         with      Ramseur,          through        which      Ramseur     bought      bulk

quantities of drugs and resold them on the street.

       After       Eckles      and     thirty-five                other    coconspirators         were

indicted,         in     their       quest       for       sentence       reductions       based     on

substantial         assistance,            he    and        seven    others    testified          about

Ramseur’s         various        roles          and        extensive      involvement        in     the

venture. 1         Also, Detective David Ramsey of the Iredell County

Sheriff’s Office testified about his in-depth investigation of

Ramseur.          Detective          Ramsey       conducted          surveillance      of    Ramseur

while       he    bought       drugs        from           Eckles,     listened       to    numerous

wiretapped phone conversations in which Ramseur talked about his

drug trafficking, and personally interviewed every cooperating

witness         prior    to    their     testifying            at    Ramseur’s      trial.         This

cumulative         testimony         painted          a    detailed       picture   of     Ramseur’s

involvement:           it   made     out     the          amounts    of    cocaine,      crack,     and

marijuana Ramseur purchased; the individuals in the conspiracy

whom       he    worked       with     to       sell       drugs;     and    the    time     period,

beginning as early as 1996, during which he trafficked in the

Statesville area.


       1
       The government produced one additional witness at trial
who was not indicted as part of the Eckles conspiracy, but who
had personal knowledge of Ramseur’s activity.



                                                       3
       During the course of Eckles’s examination, he was asked

when he began selling drugs to Ramseur.                      Eckles first said he

began dealing with Ramseur in 2000 or 2001, but later said it

was in 2003.        He maintained, however, that he stopped selling to

Ramseur in November 2004.              When defense counsel asked if he was

sure   about    when   he   stopped       selling     to    Ramseur,   Eckles     said,

“[m]y last time I dealt with him was the time -- if that was the

time when the murder charge -- that’s the last time.”                       J.A. 187.

Defense counsel moved to strike this comment, and the district

court granted the motion.               The district court also instructed

the    jury,   “[m]embers        of    the   jury,    don’t    consider     the    last

remark.      Strike it.”    Id.

       The   jury    convicted        Ramseur    of   the    sole   count   under   18

U.S.C. § 846.       In special verdicts, it attributed to Ramseur the

maximum amount of crack and cocaine charged by the government,

“50    grams   or    more   of    a    mixture    and      substance   containing    a

detectable amount of cocaine base” and “5 kilograms or more of a

mixture and substance containing a detectable amount of powder

cocaine.”       J.A. 948.         However, the jury attributed only the

minimum amount of marijuana that they had been asked to find,

“less than 50 kilograms.”             J.A. 949.




                                             4
                                              B.

       Prior to Ramseur’s sentencing hearing, the United States

Probation      Office       (“Probation”)      prepared      a   presentence    report,

calculating          Ramseur’s    recommended         guidelines     sentence    under

U.S.S.G. § 2D1.1.             Based on his involvement in the conspiracy,

Ramseur’s offense level was 36.                    Probation determined, however,

that Ramseur was also directly responsible for three murders and

so,    under     § 2D1.1(d),          cross-referenced       § 2A1.1    and    assigned

Ramseur an offense level of 43. 2

       Ramseur        filed      an     objection      to    the    application      of

§ 2D1.1(d).           In response, the government sought to establish

that       Ramseur    was   responsible       for    three   murders,    “during    the

course of the conspiracy . . . [and] in furtherance of a drug

conspiracy.”           J.A.    963.      In   so    doing,   the   government     again

relied predominately on the testimony of cooperating witnesses.

       The first murder occurred on May 25, 2001, on Wilson Lee

Boulevard (the “Wilson Lee Boulevard” murder).                      This murder grew

out of a theft of drug proceeds by a dealer named Nakia White.

Demetrius Thompson, another dealer who did not receive a portion


       2
       Section 2D1.1(d) provides, “[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C.
§ 1111 . . . [one must] apply § 2A1.1 (First Degree Murder) or
§ 2A1.2 (Second Degree Murder), as appropriate.”        The base
offense level for § 2A1.1 is 43.



                                              5
of the stolen proceeds to which he felt entitled, prevailed upon

Ramseur, who was known for possessing a number of firearms and

for     using    violence          against       rival    dealers,        to       assist   in

retaliating for the slight.                    The two knew that White sold crack

with    Roxanne    Eckles          out    of    her    apartment,       and    so    went    to

Roxanne’s       apartment,         along       with   Eckles-coconspirator            O’Kiera

Myers,    and    shot    into       it,     killing      John    Lewis     Davis      in    the

process.        A week later, Ramseur returned and fired into the

apartment again, but did not manage to harm anyone.

        The other murders occurred in November 2004, on Brevard

Street (the “Brevard Street” murders).                          At the time, victims

Angelo Stockton and Timothy Cook, rival dealers in Statesville,

had been engaged in a longstanding feud with Ramseur and his

associates.       Because of the feud, gunfire had been exchanged on

several occasions.            Ramseur’s associates had shot at Stockton,

Cook,    and    their   associates,             and   Ramseur     had    participated        in

shooting up a house, seeking to kill them.                              On November 16,

2004,     Stockton      and        Cook    encountered          several       of    Ramseur’s

associates at a drinking establishment, and a fight ensued.                                 In

the course of the fight, three of Ramseur’s associates, two of

whom    were    named    in    the        Eckles      conspiracy,       summoned      Ramseur

because    they    knew       he    possessed         numerous    firearms.           Ramseur

collected Al Bellamy, an associate and member of the conspiracy,

and drove to the drinking establishment, where they encountered
                                                 6
Cook and Stockton outside.           Ramseur and Bellamy shot and killed

both.

      At   the   sentencing     hearing,       the   three    associates   who

summoned Ramseur to Brevard Street testified about the event.

Though each had personal knowledge of these murders, two said

that they did not know the reason for the underlying feud, and

the third said it was “[j]ust some beef about like neighborhoods

or   something.”      J.A.   1277.     Other    cooperators    who   testified

about their knowledge of the murders similarly disclaimed any

knowledge of the source of the feud.            The government was able to

provide an explanation, however, by calling to the stand Tyrone

Brandon, who had been convicted of unrelated charges of drug

distribution     in   the    Statesville    area.        Brandon     had   been

incarcerated with Al Bellamy in county prison after the murders

occurred, and testified to what Bellamy told him about them:

      Q:   [D]id [Bellamy] tell you what the argument was
           over?

      A:   He told me it was over drugs.

      Q:   Did he also tell you that other people thought it
           was over a girl, but it was really over drugs?

      A:   Yes ma’am.

      Q:   Did he describe in what way it was over drugs or
           he just told you it was over drugs?

      A:   He said that [Stockton] refused to pay [Cary
           Phifer] for the drugs that [Cary] had fronted him
           to sell.

                                       7
J.A. 1413-14.

     At    the   conclusion     of   the     hearing,   the   district     court

overruled Ramseur’s objection to the application of § 2D1.1(d),

finding that Ramseur was “directly accountable” for the Wilson

Lee Boulevard and Brevard Street murders.                 J.A. 1783-84.     The

district court adopted Probation’s recommendation, and sentenced

Ramseur to life imprisonment.          He now appeals.



                                       II.

     On    appeal,    Ramseur    challenges      his    conviction   and     his

sentencing.      Ramseur contends that the district court should

have declared a mistrial after Rickie Eckles referenced a murder

charge while testifying about Ramseur’s involvement in the drug

conspiracy.      Ramseur further contends that his sentence should

be vacated because the district court erred in finding that the

murders of Davis, Cook, and Stockton were “relevant conduct”

under    U.S.S.G.    § 1B1.3,    and    thus    grounds    for   applying   the

§ 2D1.1(d) sentencing enhancement. 3           We consider these arguments

in turn.



     3
       We are aware that the district court is obligated to
consider evidence of relevant conduct under U.S.S.G. § 1B1.3,
United States v. Hayes, 322 F.3d 792, 801 (4th Cir. 2003), and
that in this case, the district court did not make its
determinations explicit. Ramseur, however, does not argue that
(Continued)

                                        8
                                       A.

      We first consider Ramseur’s challenge to his conviction.

Ramseur   argues     that   Eckles’s    comment    was   prejudicial   to    the

point that the district court had to dismiss the jury, because

the comment informed them of highly damaging information about

Ramseur that did not relate to the drug charge for which he was

being tried.   Because Ramseur did not move for a mistrial below,

we review the district court’s decision not to declare one sua

sponte for plain error.           See United States v. Castner, 50 F.3d

1267, 1272 (4th Cir. 1995).

      A   criminal     defendant     suffers      sufficient    prejudice     to

warrant a new trial if “there is a reasonable possibility that

the   jury’s   verdict      was     influenced     by    the   material     that

improperly came before it.”            United States v. Barnes, 747 F.2d




the district court failed to consider § 1B1.3. This is probably
so because the district court responded to the government’s
stated intention of proving that the murders were committed
“during . . . [and] in furtherance of a drug conspiracy,” J.A.
963, by finding that Ramseur was “directly responsible” for the
murders, J.A. 1783-84. This finding clearly indicates that the
district court found the conduct relevant under § 1B1.3.
Accordingly, although it would have been preferable for the
district court to make an express finding of relevance, because
the record clearly demonstrates considerations relevant to
§ 1B1.3, we will not find clear error on these facts based on a
failure to consider that guideline.



                                        9
246,   250   (4th    Cir.    1984)    (internal          quotations      and    citation

omitted).       In   the    context       of    witness    testimony,       sufficient

prejudice does not exist if, despite the testimony, the jury

“could   make    individual     guilt      determinations          by    following   the

court’s cautionary instructions.”                     United States v. West, 877

F.2d 281, 288 (4th Cir. 1989), cert denied, 493 U.S. 959 (1989).

When   considering        whether    the       jury    could    make    individualized

determinations       by   following    the       court’s       instructions,     several

factors are relevant: (1) whether the prosecutor sought to bring

out the comment and, if so, whether that was with an improper

purpose;      (2)     whether       the        district        court’s     instruction

sufficiently informed the jury that it could not consider the

testimony; (3) whether the jury’s verdict fairly implies that it

was not influenced by the testimony; and (4) the weight of the

evidence.       United States v. Dorsey, 45 F.3d 809, 817-18 (4th

Cir. 1995).

       As a threshold matter, we are unconvinced that Eckles’s

comment could be considered prejudicial.                       Eckles stated, “[m]y

last time I dealt with him was the time -- if that was the time

when the murder charge -- that’s the last time.”                               J.A. 187.

This comment does not provide any insight into who was charged

with a murder.        Upon hearing it, all the jury could infer is

that Eckles sold drugs to Ramseur until the time that a “murder


                                           10
charge” interrupted their association.                  This inference, standing

alone, is hardly prejudicial to Ramseur.

      Furthermore,       even    if    Eckles’s       comment    had    the    power    to

prejudice Ramseur, under the Dorsey factors, Ramseur has failed

to show that the comment was sufficiently prejudicial to warrant

a mistrial.      First, as Eckles was responding to defense counsel,

there is no evidence here that the prosecutor sought to bring

out the comment, which means the prosecutor did not attempt to

mislead    the     jury.        Where     the     prosecutor          cannot   be     held

accountable for the comment, we customarily find insufficient

prejudice to warrant a mistrial.                United States v. Johnson, 610

F.2d 194, 197 (4th Cir. 1979).                 Second, the district court ably

addressed Eckles’s comment, giving the jury a firm, immediate

instruction that they could not consider it.                      Third, the jury’s

verdict    demonstrates         that    the     jury    was     not     influenced     by

Eckles’s comment.          The jury could have attributed the maximum

amount of marijuana to Ramseur but did not, thereby evidencing

that it paid attention to the evidence and not the comment.

Fourth, the weight of the evidence “clearly establishe[d] all

the   facts   necessary         for    proof    of     the    illegal     conspiracy.”

United    States    v.     Socony-Vacuum        Oil    Co.,     310    U.S.    150,    235

(1940).    Notably, Ramseur did not argue that the evidence was

insufficient to convict him, thereby conceding that the jury had

enough to rely upon in its deliberation.
                                          11
        Accordingly, we find that the district court committed no

error when it did not order a mistrial.



                                            B.

      We turn now to Ramseur’s challenges to his sentencing.                          He

argues that the district court erred when enhancing his offense

level under U.S.S.G. § 2D1.1(d) because it based the enhancement

on murders that were not relevant to his crime of conviction

under § 1B1.3.        We review the district court’s legal conclusions

de novo and its factual findings for clear error.                        United States

v.   Martinez-Melgar,       591    F.3d     733,    737   (4th     Cir.      2010).    As

Ramseur’s arguments concern whether the murders applied under

§ 2D1.1(d) are relevant conduct within the meaning of § 1B1.3,

we begin with a brief discussion of these provisions.

      If      an    individual     being     sentenced         under     §    2D1.1   has

committed a crime that would constitute murder under 18 U.S.C.

§ 1111     within     federal     jurisdiction,         the     district      court   may

enhance       the   offense-level     calculation         under       § 2D1.1(d).      In

order    to    do   so,   the    district    court      must    determine      that   the

murders       are   relevant     within     the    meaning       of    § 1B1.3.       The

district      court    first    determines        the   scope     of   the    underlying

relevant conduct based on “all acts and omissions committed,

aided [and] abetted . . . that were part of the same course of

conduct or common scheme or plan as the offense of conviction.”
                                            12
See § 1B1.3(a)(1)(A), (2).     A murder is then relevant if it

occurs during and in furtherance of the crime of conviction, or

conduct that is part of a same course of conduct or common

scheme or plan as the crime of conviction.   See United States v.

Pauley, 289 F.3d 254, 259 (4th Cir. 2002).

     When determining if conduct is part of a “common scheme or

plan” or of the “same course of conduct,” we apply “a fairly

straightforward test.”   Pauley, 289 F.3d at 259.   We consider:

     such factors as the nature of the defendant’s acts,
     his role, and the number and frequency of repetitions
     of those acts, in determining whether they indicate a
     behavior pattern.     The significant elements to be
     evaluated are similarity, regularity and temporal
     proximity between the offense of conviction and the
     uncharged conduct. Although an appellate court cannot
     formulate precise recipes or ratios in which these
     components must exist in order to find conduct
     relevant, a district court should look for a stronger
     presence of at least one of the components if one of
     the components is not present at all.         If the
     uncharged conduct is both solitary and temporally
     remote, then there must be a strong showing of
     substantial similarity.

Id. (quoting United States v. Mullins, 971 F.2d 1138, 1144 (4th

Cir. 1992).   With this framework in mind, we consider Ramseur’s

arguments.




                                13
      We limit our consideration to the Brevard Street murders. 4

Ramseur does not contest that he committed these murders during

his crime of conviction.                  Rather, he contends only that the

district    court        relied    on    insufficient           evidence     to   find    them

relevant, because it relied on the statements of Tyrone Brandon,

a   witness    who       testified       that      the    murders       occurred    because

Stockton refused to pay Ramseur’s associate, Cary Phifer, for

drugs Phifer had fronted Stockton.                       First, Ramseur argues that

Brandon was not a credible witness because he was “a felon [who

testified]     .     .    .   with       an   expectation          of    a   reduction     in

sentence,” Appellant’s Br. at 27, and so could not provide a

reliable explanation as to why Ramseur killed Stockton and Cook.

Second, Ramseur argues that Brandon’s hearsay testimony could

not be used to find the murders relevant because other witnesses

testified     from       personal       knowledge        that    the    murders    were    not

drug-related.

     Ramseur’s first argument is a challenge to the district

court’s     credibility           determination           on     Brandon,     a    kind     of

determination we can scarcely reverse.                         As we have said, “when a


     4
       Section 2D1.1(d) requires only a single murder to support
the cross-reference.    Accordingly, because we find that the
district court did not clearly err in concluding that the
Brevard Street murders were relevant conduct, we need not
consider the Wilson Lee Boulevard murder.



                                              14
district court’s factual finding is based upon assessments of

witness credibility, such finding is deserving of the highest

degree of appellate deference.”               United States v. Thompson, 554

F.3d 450, 452 (4th Cir. 2009) (internal quotations omitted).

Ramseur provides no compelling reason why we should not apply

that level of deference here.            Not only is it accepted practice

for the government to produce cooperating witnesses at trial --

so much so that § 5K1.1 of the Sentencing Guidelines provides a

means to decide how much credit cooperators should receive --

but Ramseur does not even complain about the credibility of the

other cooperating witnesses, who all were in the same position

as Brandon.     Moreover, the district court had the opportunity to

hear Brandon’s testimony, as well as defense counsel’s effort to

impeach him on cross-examination.                In such circumstances, the

district court’s credibility determination is not reversible.

     Ramseur also fails to show that the district court erred by

finding   facts     based   on    Brandon’s      hearsay    instead   of       those

witnesses     who   testified     from    personal     knowledge.         At    the

sentencing stage, the district court is entitled to hear any

relevant information, so long as it bears “sufficient indicia of

reliability to support its probable accuracy.”                United States v.

Hernandez-Villanueva,       473    F.3d        118,   122   (4th   Cir.        2007)

(internal quotations and citation omitted).                 The district court

may find hearsay sufficiently reliable, and rely on it to find
                                         15
facts.       See United States v. Carter, 300 F.3d 415, 427 (4th Cir.

2002).       The hearsay can come from any source, even convicted

felons      seeking    a    sentence       reduction.         See    United   States    v.

Johnson,      489    F.3d     794,   797    (7th    Cir.   2007)      (“[T]he   district

court may credit testimony that is totally uncorroborated and

comes from an admitted liar, convicted felon, or large scale

drug-dealing, paid government informant.”) (internal quotations

and citations omitted).              Here, the differing rationales offered

by    the    witnesses      required       the     district    court     to   resolve    a

question of fact based on whose testimony ought to be credited,

and it was not error for the district court to rely on Brandon

in resolving that issue.             See Carter, 300 F.3d at 425.

        In particular, the district court did not err here because,

as Ramseur effectively concedes, it did not have to resolve any

real conflicts in the witness testimony.                      The witnesses who were

present      on     Brevard    Street      had     personal    knowledge      about    the

murders, but not the cause of the feud underlying them.                               Only

one   actually       suggested       a    rationale    different       from   Brandon’s,

that the feud was about territory.                     This explanation, however,

could well be construed as drug-related.                            The district court

therefore heard alternative testimony that the source of the

feud was unknown, or that it was for a reason that could also be

about       drugs.      Neither          explanation    logically       precludes      the


                                             16
finding    that    drugs    were,       at    minimum,    a    principal    reason

underlying the murders.

      In   this   case,    the   record       supports   a    determination   that

these murders were committed in furtherance of Ramseur’s crime

of   conviction,    and    so    were    relevant    within     the   meaning   of

§ 1B1.3.     The district court therefore did not clearly err by

enhancing Ramseur’s sentence under § 2D1.1(d) on this basis.



                                        III.

      For the foregoing reasons, we affirm Ramseur’s conviction

and sentence.

                                                                           AFFIRMED




                                         17
