                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 11-4181


LESLIE WERTH, a/k/a Les Werth,

               Plaintiff - Appellant,

          v.

UNITED STATES OF AMERICA,

               Defendant - Appellee.


                            No. 11-4444


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

CHRISTOPHER TIMBERS, a/k/a Alibi,

               Defendant - Appellant.


                            No. 11-4445


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

MARK JASON FIEL, a/k/a Jason,

               Defendant - Appellant.
                             No. 11-4446


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JACK ROSGA, a/k/a Milwaukee Jack,

                Defendant - Appellant.


                             No. 11-4448


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HARRY RHYNE MCCALL,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     Henry E. Hudson, District
Judge.    (3:10-cr-00170-HEH-23, 3:10-cr-00170-HEH-21, 3:10-cr-
00170-HEH-6, 3:10-cr-00170-HEH-1, 3:10-cr-00170-HEH-15)


Submitted:   June 15, 2012                   Decided:     August 2, 2012


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.




                                   2
J. Brian Donnelly, J. BRIAN DONNELLY, PC, Virginia Beach,
Virginia, for Appellant Mark Jason Fiel; William J. Dinkin,
STONE, CARDWELL & DINKIN, PLC, Richmond, Virginia, for Appellant
Jack Rosga; Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield,
Virginia, for Appellant Leslie Werth; Ali J. Amirshahi,
Richmond, Virginia, for Appellant Christopher Timbers; Charles
D. Lewis, LAW OFFICE OF CHARLES D. LEWIS, Richmond, Virginia,
for Appellant Harry Rhyne McCall.      Neil H. MacBride, United
States   Attorney,  Alexandria,   Virginia,  Peter  S.   Duffey,
Assistant United States Attorney, Richard D. Cooke, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

             In 2010, over twenty members of the Outlaws motorcycle

gang (“Outlaws”) were indicted for conspiracy to violate the

Racketeer Influenced and Corrupt Organizations Act (“RICO”) and

several other offenses.                Five of the Outlaws members who were

convicted    appeal       their     convictions            and    sentences    on    various

grounds.     Finding no error, we affirm.



                                             I.

                                             A.

             The    Outlaws       is    a    “one-percenter”            motorcycle      gang,

meaning    that     its     members       are       part    of    the    one   percent    of

motorcyclists who decline to abide by societal rules and laws.

Central to the organization is the culture of violence that it

fosters.           As    relayed       through          trial      testimony,       frequent

territorial disputes, particularly with the Outlaws’ main rival,

the Hell’s Angels, involved the use of force or threatened force

as the Outlaws sought to expand and maintain its territories for

the   sake    of        notoriety      and      financial         gain.        Within     the

organization, violence and the threat of violence were also used

to maintain compliance with internal rules.

             The    organization          has       a   multi-level,       well-organized

chain of command.            All Outlaws members belong to a specific

chapter,     the    chapters        are     grouped        into    several     color-coded

                                                4
regions, and the regions all fall under the authority of the

national president.            Each chapter has a clubhouse, within which

weekly chapter meetings, called “church,” take place.                         Higher

level     meetings       between    regional      bosses    or    the        national

leadership of the organization also occur on a consistent basis.

Appellant Jake Rosga was a member of the Gold Region (Milwaukee,

Wisconsin, chapter) and, at all times relevant, served as the

national president of the organization. The other appellants—

Leslie Werth, Christopher Timbers, Harry Rhyne McCall, and Mark

Jason     Fiel—were      all    members   of    chapters    within     the    Copper

Region,     which     covers      North   Carolina,     South     Carolina,      and

Virginia.       Werth was the president of the Copper Region.

             In September 2008, Special Agents Jeffrey Grabman and

Daniel Ozbolt of the Bureau of Alcohol, Tobacco and Firearms

(“ATF”) began infiltrating the Outlaws in the Richmond, Virginia

area.     The agents posed as members of a separate motorcycle club

called the Mongols.            At that time, the Outlaws did not have a

chapter in Richmond, so conversations between the Outlaws and

the     undercover       agents    focused      initially    on      the     Outlaws

developing a relationship with the Mongols as a support club in

the   area. 1      The    Hell’s    Angels     were   beginning   to    develop     a


      1
       Support clubs are smaller motorcycle gangs that assist the
Outlaws in their efforts to dominate a particular territory.
This support comes in the form of providing intelligence on
(Continued)
                                          5
foothold   in     Richmond,      so   the    Outlaws     were   eager      to   build   a

network in the area by establishing support clubs, with hopes of

ultimately recruiting members from the support clubs and moving

into the area themselves.

            By late October, Outlaws members expressed interest in

the undercover agents joining the Outlaws and starting a chapter

in the Richmond area.            The agents were voted into the club in

January 2009 as prospective members and ultimately started an

Outlaws    chapter    in   Petersburg,           Virginia.      By   May     2009,    the

undercover agents had set up a clubhouse in the Petersburg area.

Unbeknownst to the other Outlaws members, the undercover agents

had wired the clubhouse for video and audio recording.                            During

their   time     undercover,      the       agents   participated       in      numerous

Outlaws activities in a number of different states.



                                            B.

            Search warrants for multiple Outlaws clubhouses were

executed    on    June     15,    2010,      yielding,       among   other      things,

firearms    and     illegal       drugs.          Many    Outlaws     members        were

subsequently arrested and charged with various offenses.                         During




rival gangs in the area, buying Outlaws gear to raise money, and
serving as a pool of potential new Outlaws members.



                                             6
the subsequent trials, 2 the government, with the aid of testimony

from the undercover agents and recordings from the Petersburg

clubhouse,       presented       extensive     evidence    about       the   Outlaws’

activities,      which     included    murder,      attempted    murder,     robbery,

assault,     extortion,       arson,     witness      intimidation,          narcotics

violations, illegal gambling, and weapons violations.                         Each of

the   defendants     in    this    consolidated       appeal    was    convicted   of

conspiracy to violate RICO (“Count 1”), see 18 U.S.C. § 1962(d);

and conspiracy to commit violence in aid of racketeering (“Count

2”), see 18 U.S.C. § 1959(a)(6).                Timbers and McCall were also

convicted of violence in aid of racketeering (“Count 3”), see 18

U.S.C.    §§ 1959    and    2.      McCall    was    additionally      convicted   of

possession of a firearm in furtherance of a crime of violence

(“Count 4”), see 18 U.S.C. §§ 924(c) and 2.



                                         II.

            We    first     address     related      claims     made    by   multiple

defendants concerning the disclosure of evidence and the scope

of cross-examination.            Pursuant to its obligations under Brady

      2
       The Outlaws members charged in the superceding indictment
who did not plead guilty were tried in two separate trials. Of
the five defendants in this case, only Werth was tried and
convicted in the first trial. Rosga was also tried in the first
trial, but after the jury could not reach a verdict on the
counts against him, the government retried Rosga with the second
group of defendants.



                                          7
v. Maryland, 373 U.S. 83 (1963), and its progeny, the government

disclosed     certain       information            to     the   defense        about        the

undercover ATF agents.               Specifically, the government disclosed

that Grabman had been suspended by ATF in 1991 when his training

officer    lied    about      the    circumstances          surrounding       a     speeding

incident     and    Grabman      falsely       corroborated       the     story.            The

government also disclosed that Ozbolt, during the course of his

investigation into the instant matter, received a DUI citation,

a reckless driving citation, and a speeding ticket.

            Rosga and Fiel filed a motion seeking disclosure of

supporting     documents         and    other       evidence      related          to     these

incidents.        The government thereafter filed motions seeking to

preclude the defense from cross-examining the agents about the

incidents at trial and objecting to the document request.                                 As to

the   document       request,        the      government        explained          that     the

documents relating to Agent Grabman had long ago been purged by

ATF   as   part    of   its      standard      procedures       and    were       no    longer

available.         With    regard       to        Agent    Ozbolt,     the     government

submitted the supporting documents to the court for in camera

review,    arguing      that     the   documents          contained     no    impeachment

material    that    had    not      already       been    disclosed.         The    district

court ordered the government to disclose documents relating to

Agent Ozbolt’s apparent failure to advise his superiors about

one of the citations, but the court otherwise agreed with the

                                              8
government and held that the remaining documents did not contain

“exculpatory, relevant, or admissible” information.                         J.A. 2050.

The district court also granted the government’s motion to limit

the cross-examination of the agents about these incidents.

              Rosga, Timbers, and McCall challenge these rulings on

appeal. 3     We review a district court’s decision concerning the

disclosure        of     documents       reviewed     in    camera          for    clear

error, see United States v. Trevino, 89 F.3d 187, 193 (4th Cir.

1996),      and   a    district    court’s     limitations      on    a     defendant’s

cross-examination          of     government        witnesses        for     abuse     of

discretion, see United States v. Smith, 451 F.3d 209, 220 (4th

Cir. 2006).



                                               A.

              Turning     first    to    the   disclosure    of      documents,       the

district court did not clearly err in denying the defense motion

for disclosure of documents related to Grabman.                       The government

represented       that    all     such   documents      relating       to    the     1991

incident had been purged according to ATF protocol.                         The defense

does not contend otherwise, nor does the defense argue that the


     3
       Despite the fact that Fiel raised these issues below, he
failed to raise them on appeal and has therefore waived them.
See United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir.
2008).



                                           9
documents were available to the government from another source.

Because    the     documents       were   no     longer       available,    the    defense

cannot     prove     “that     the        evidence       was     suppressed        by    the

government.”       United States v. Moussaoui, 591 F.3d 263, 285 (4th

Cir.      2010)     (internal         quotation          marks       and    alterations

omitted); see also United States v. Capers, 61 F.3d 1100, 1103

(4th Cir. 1995) (explaining that government’s duty to disclose

does not extend to information not in its possession).

            The district court likewise did not clearly err in

denying the defense motion for disclosure of documents related

to Ozbolt.        The district court held that the documents provided

no impeaching information beyond that already disclosed by the

government.       Despite having access to these documents during the

pendency of this appeal, the defendants have not identified any

impeaching    facts      in   the    documents        that     had   not   already      been

disclosed.        The defendants have thus failed to establish that

the government suppressed favorable evidence.

            The defendants seem to contend that under Brady and

its progeny, the government was somehow obligated to conduct its

own investigation of the incidents and turn over the results of

that investigation to the defense.                       This argument is without

merit.     While the government is obligated to disclose favorable

evidence     in    its   possession,        it     is     not    required    to     create

evidence    that    might     be    helpful      to     the    defense.      See    United

                                            10
States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011) (“We find the

proposed extension of Brady difficult even to understand.                                       It

implies that the state has a duty not merely to disclose but

also        to    create        truthful      exculpatory           evidence.”      (internal

quotation         marks    omitted));         United       States    v.    Alverio-Meléndez,

640    F.3d       412,    424    (1st     Cir.    2011)       (“The       failure   to    create

exculpatory evidence does not constitute a Brady violation.”).



                                                      B.

                 Turning to the district court’s decision to limit the

defendants’         opportunity          to   cross-examine           Agents     Grabman      and

Ozbolt, we find that the court did not abuse its discretion.

Federal          Rule    of     Evidence       608(b)(1)          gives     district      courts

discretion          to     allow     inquiry          into        specific     instances        of

misconduct during cross-examination “if they are probative of

the character for truthfulness or untruthfulness of . . . the

witness.”          We have previously explained that the proper factors

to     be    considered         by   a     district         court     in     exercising       this

discretion         include       “the    importance          of    the     testimony     to   the

government's case, the relevance of the conduct to the witness's

truthfulness, and the danger of prejudice, confusion, or delay

raised by evidence sought to be adduced.”                                  United States v.

Leake, 642 F.2d 715, 719 (4th Cir. 1981).



                                                 11
            With     regard      to     questioning         Grabman         about     the       1991

incident,     the    court       doubted       the    relevance           of    the    possible

testimony in light of the fact that the incident was remote in

time.    The court also expressed concern about delaying a long

trial with what it viewed as “a complete diversion of th[e]

jury’s   time      and    attention.”              J.A.     328.          Thus,     the        court

considered the proper factors and did not abuse its discretion.

            We      likewise      find       no     abuse       of    discretion          in     the

district    court’s       decision       to       limit    the       cross-examination            of

Agent Ozbolt.        Ozbolt received the citations at issue while he

was working undercover on this case, and the “false statements”

at   issue—Ozbolt’s        use    of     his       undercover          identification—were

necessary     for    Ozbolt’s         own     safety       and       to   ensure      that      the

investigation       was   not    compromised.              If    the      defense     had       been

permitted    to     cross-examine           Ozbolt    about      these         incidents,        the

government likely would have had to question Ozbolt about agency

rules and policies for working undercover and about the dangers

to Ozbolt and the investigation on whole if Ozbolt’s cover had

been blown.         Permitting inquiry into these issues would have

needlessly    complicated         the    case       and    confused         the    jury.         The

district         court,          therefore,               did         not         abuse          its

discretion.       See United States v. Bynum, 3 F.3d 769, 772 (4th

Cir. 1993) (“The purpose of [Rule 608(b)] is to prohibit things



                                              12
from       getting    too   far   afield—to       prevent    the   proverbial    trial

within a trial.”). 4



                                       III. Jack Rosga

               Along with the arguments addressed in Section II(A) &

(B), Rosga advances two additional arguments on appeal.                           His

first       contention      is    that    the        district   court   abused    its

discretion, see United States v. Summers, 666 F.3d 192, 197 (4th

Cir. 2011), in refusing to admit a recorded statement of Outlaws

member       Joseph    Allman     in   which      Allman    allegedly   ordered   the

shooting of a Hell’s Angels member.                   Although the district court

initially admitted the evidence for a limited purpose, the court

later admitted the evidence without limitation.                     Therefore, this

claim is without merit.

               Rosga’s second contention is that the district court

made two errors at sentencing.                 Applying an abuse of discretion

standard,      we     review     sentences     for    reasonableness    and   examine

sentences for substantive and procedural errors.                         See United

States v. Hornsby, 666 F.3d 296, 312 (4th Cir. 2012).                     We review




       4
       To the extent that the defendants are also suggesting that
the district court’s limitation on cross-examination violated
their rights under the Confrontation Clause, we find that
contention to be unpersuasive.



                                             13
factual findings, however, for clear error.                                 See United States

v. Powell, 680 F.3d 350, 359 (4th Cir. 2012).

             Rosga         first      contends           that        the     court        committed

procedural error by considering the attempted murder of a Hell’s

Angels     member        by   two    other     Outlaws          members       to    be     relevant

conduct under U.S.S.G. § 1B1.3(a) (2010).                             Under the Guidelines,

“relevant        conduct”      includes       “all      acts”        that    were    “reasonably

foreseeable”        to    Rosga      and   within        “the    scope        of    the    criminal

activity     [that       he]    agreed       to     jointly      undertake.”               U.S.S.G.

§ 1B1.3(a) & cmt. n.2.               At sentencing, the district court relied

on   extensive        trial         testimony          showing       that     Rosga,       as   the

president of the organization, “promoted a culture of violence,”

“gave      the     green      light     to     retaliate             and     assault”       others,

“instructed Grabman, and other Outlaw members, to shoot Hells

Angels’ members . . . if necessary,” and “had declared war on

the Hells Angels.”             J.A. 4644-46.            In light of this evidence, we

conclude that the district court did not commit clear error in

finding the shooting to be relevant conduct.

             Rosga also challenges the substantive reasonableness

of   his    sentence.          Although       his       Guidelines          range   was     324-405

months,      the     district         court       imposed        a     240-month          sentence,

composed of the statutory maximum on Count 1, see 18 U.S.C.

1963(a), and a concurrent 36-month sentence on Count 2.                                          On

appeal, Rosga argues that a 240-month sentence is greater than

                                                  14
necessary to protect the public and creates unwarranted sentence

disparities.         See    18   U.S.C.      § 3553(a)(2)(C),       (6).    Having

reviewed the arguments and the sentencing transcript, we find

the sentence imposed to be reasonable and, therefore, find that

the district court did not abuse its discretion.



                                    IV. Leslie Werth

           Werth’s only argument on appeal is that the evidence

adduced at the first trial was insufficient to convict him on

the   predicate      drug   offense        for   maintaining    a    drug-involved

premises, see 21 U.S.C. § 856(a), necessary for conviction on

the RICO conspiracy count, see 18 U.S.C. § 1962(d), because he

himself did not use, sell, or condone the use or sale of illegal

drugs.   Although Werth made a motion for judgment of acquittal

before the district court pursuant to Federal Rule of Criminal

Procedure 29, advancing certain arguments, he did not assert the

argument that he makes now on appeal.                    Werth, therefore, has

waived this claim of error.           See United States v. Chong Lam, 677

F.3d 190, 200 (4th Cir. 2012) (“When a defendant raises specific

grounds in a Rule 29 motion, grounds that are not specifically

raised are waived on appeal.”).

           In    any   event,       even    if   Werth   had   not    waived     this

challenge,      we   find    that    sufficient      evidence       supported     his

conviction   for     maintaining      a     drug-involved      premises.        Werth

                                           15
argues that he did not personally use or condone the use of

drugs and that the primary purpose of the clubhouses was not the

use and distribution of drugs.              As to the former argument, Werth

need not have committed the substantive offense himself.                        “[I]t

suffices that he adopt the goal of furthering or facilitating

the criminal endeavor.”            Salinas v. United States, 522 U.S. 52,

65 (1997).        As to the latter argument, drug use need not be the

primary purpose of the clubhouses.                    It is sufficient under 21

U.S.C. § 856 that the use and distribution of drugs was one of

the purposes of the clubhouses.                  See United States v. Roberts,

913 F.2d 211, 220 (5th Cir. 1990).                   Therefore, even if Werth had

preserved this challenge, it would be without merit.



                              V. Christopher Timbers

             In    addition   to    the    arguments       addressed     in    Section

II(A) & (B), Timbers raises several other arguments.



                                                A.

             His first additional contention is that the district

court abused its discretion, see Summers, 666 F.3d at 197, by

permitting the government to present evidence of an assault.

According to the evidence adduced at trial, Grabman and Ozbolt

met   with    Timbers,    Fiel,      and        another   Outlaws    member     in   a

restaurant    to    discuss   the     possibility         of   Grabman   and   Ozbolt

                                           16
joining the Outlaws.               At some point during this meeting, Timbers

and    Fiel,       unprovoked,          attacked          Clifford         Diggs,     an     African-

American male and restaurant patron.                                  Fiel allegedly uttered

racial       epithets      during       the    course       of        this    event,       and    Diggs

ultimately         suffered        a   broken       nose        and    a     broken      jaw. 5     The

district court permitted the government to introduce evidence of

the        assault      itself         but     restricted              the     government          from

introducing evidence of the racial epithets uttered by Fiel or

the racial motivation underlying the attack.                                  Timbers challenges

this ruling on appeal, arguing that the district court abused

its    discretion          under       Federal           Rule     of       Evidence       404(b)     by

permitting the government to introduce evidence of the assault.

                  “Rule 404(b) limits only the admission of evidence of

acts       extrinsic     to    the      one    charged,          but       does    not     limit    the

admission         of   evidence        of    intrinsic          acts.”        United       States    v.

Lighty, 616 F.3d 321, 352 (4th Cir. 2010).                                 An act is intrinsic

to the charged act, in this case the RICO conspiracy (Count 1),

if “both acts are part of a single criminal episode,” United

States       v.    Chin,      83   F.3d       83,    88     (4th       Cir.       1996)    (internal

quotation marks omitted), or if evidence of the intrinsic act


       5
       Based on this incident, the government also charged Fiel
and Timbers with a civil rights violation, but that count in the
indictment was severed from the others and is not at issue in
this appeal.



                                                    17
“serve[s] to complete the story with respect to the scope of the

. . . conspiracy,” United States v. Lipford, 203 F.3d 259, 268

(4th    Cir.        2000),    and     “provide[s]       context     relevant       to        the

criminal charges,” United States v. Cooper, 482 F.3d 658, 663

(4th Cir. 2007).             In this case, the assault occurred while the

undercover agents were meeting with Outlaws members to discuss

joining       the    group.          Moreover,    the     assault       occurred        in     a

geographical area where the Outlaws sought to expand and needed

to establish their dominance in order to control the territory.

Given these facts, we find that the assault was intrinsic to the

RICO conspiracy and, therefore, conclude that the district court

did not abuse its discretion in permitting the government to

introduce evidence of the assault.



                                                 B.

              Timbers’        second     additional       challenge        is    to          the

sufficiency of the evidence as to each of the counts in the

indictment for which he was convicted, Counts 1-3.                          “We review

the    sufficiency       of    the    evidence    to     support    a    conviction           by

determining whether there is substantial evidence in the record,

when viewed in the light most favorable to the government, to

support the conviction.”              United States v. Jaensch, 665 F.3d 83,

93     (4th     Cir.     2011)       (internal        quotation     marks       omitted).

“[S]ubstantial evidence is evidence that a reasonable finder of

                                            18
fact   could    accept       as    adequate       and    sufficient            to    support    a

conclusion      of     a     defendant's          guilt        beyond          a     reasonable

doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc).

            With      regard      to     Count    1,    the     RICO      conspiracy,        the

government     contends           that     Timbers          waived        his       sufficiency

challenge    on      appeal.         Assuming,        but     without      deciding,        that

Timbers preserved this claim on appeal, we find that substantial

evidence supported his conviction.                      To prove a RICO conspiracy

under 18 U.S.C. § 1962(d), the government had to establish that

Timbers   conspired         to    engage    in     a    “‘pattern         of       racketeering

activity,’” which “requires at least two acts of racketeering

activity.”       18 U.S.C. § 1961(5).                  The jury found that Timbers

conspired to plan or commit more than two predicate acts of

racketeering, including multiple acts of extortion, a single act

of witness tampering, multiple acts of interstate travel in aid

of racketeering, and multiple acts of distribution of controlled

substances.          The    jury’s       finding       that    Timbers          conspired      to

distribute     controlled          substances           was    supported            by   direct

testimony      from        Outlaws       member        Lyle     Beaty          that      Timbers

distributed cocaine on several occasions.                        Likewise, the jury’s

finding   that     Timbers        conspired      to     commit       an    act      of   witness

tampering was supported by direct testimony from Agent Ozbolt.



                                            19
Therefore,     the     evidence     was    sufficient    to    support    Timbers’

conviction for the RICO conspiracy. 6

             Similarly,    with     regard      to   Count    2,   conspiracy   to

commit violence in aid of racketeering, and Count 3, violence in

aid   of   racketeering,       substantial      evidence      supported   Timbers’

convictions.     As to Count 3, the government presented evidence

that Timbers participated in an assault of and standoff with a

rival     motorcycle    gang   in    a    bar   in   Richmond.      Specifically,

Timbers was engaged in planning sessions before the incident,

and he served as a cover for another Outlaws member who stood

across the street from the bar and attempted to draw in members

of a rival motorcycle gang.              After a fight ensued in the bar and

a rival gang member was seriously injured, Timbers joined other

Outlaws members outside the bar in a “battle wedge” formation to

search for members of the rival gang.                    The group found and

approached rival gang members, and one of the Outlaws members


      6
       Our conclusion in this regard makes it unnecessary to
consider Timbers’ sufficiency-of-the-evidence arguments as to
the other predicate offenses. We note, however, that the thrust
of Timbers’ arguments is that he did not personally engage in or
plan the multiple acts of extortion and interstate travel in aid
of racketeering. However, this level of personal involvement is
not necessary to prove guilt on predicate offenses sufficient to
uphold a RICO conspiracy conviction.    See Salinas, 522 U.S. at
65 (“A conspirator must intend to further an endeavor which, if
completed, would satisfy all of the elements of a substantive
criminal offense, but it suffices that he adopt the goal of
furthering or facilitating the criminal endeavor.”).



                                          20
made threatening comments while showing that he was carrying a

pistol.      Although Timbers may not have engaged in any violence

personally, he certainly aided and abetted the violence central

to   this    incident.         Therefore,          the    evidence    is     sufficient           to

uphold      Timbers’        conviction        on     Count     3.       See          18    U.S.C.

§§ 1959(a)(3) and 2; Va. Code Ann. §§ 18.2-22, -51, -282.                                        And

although this incident alone did not serve as the basis for

Timbers’ conviction on Count 2, having determined, based on the

evidence discussed above, that sufficient evidence supported his

conviction       on    the    substantive          offense     in    Count      3,        we    also

conclude that sufficient evidence supported his conviction for

conspiracy to commit the substantive offense in Count 2.                                   See 18

U.S.C. § 1959(a)(6).



                                       VI. Harry McCall

             In   addition       to     the    arguments       addressed         in       Section

II(A) & (B), McCall also challenges the denial of his motion for

acquittal as to Count 4, possession of a firearm in furtherance

of   a   crime    of   violence.         We    review        this    claim      de    novo       and

“decide      whether,        viewing     the       evidence     in     the       light          most

favorable to the government, any rational trier of facts could

have     found        the     defendant         guilty        beyond        a        reasonable

doubt.      United States v. Ramos-Cruz, 667 F.3d 487, 499 (4th Cir.

2012)     (internal         quotation    marks           omitted).         In    this          case,

                                              21
multiple   witnesses      testified   that       McCall    possessed      a   firearm

when he and other Outlaws members entered a bar in Petersburg,

Virginia, and assaulted members of a rival group in an attempt

to assert control over the territory.                 Therefore, substantial

evidence   supports     McCall’s      conviction      for      possession       of     a

firearm during the commission of the assault, and the district

court did not err in denying the motion for acquittal.



                                 VII. Mark Fiel

           Finally, Fiel raises two claims on appeal, both of

which can be resolved summarily.            His first challenge is to the

district   court’s     denial   of    his    motion       to   suppress       evidence

seized from his vehicle.        Specifically, Fiel’s motion sought to

suppress a semiautomatic Glock handgun, evidence seized from the

search of his backpack, and his cellular phone, the contents of

which   were   searched    pursuant    to    a    warrant.       On   appeal,        the

government contends that none of this evidence was introduced at

his trial.     Fiel does not dispute this contention nor does he

direct the court to a place in the record where any of this

evidence was used at trial.           Therefore, any error the district

court may have made in denying the motion to suppress would be

harmless. See United States v. Ford, 986 F.2d 57, 60 n.2 (4th

Cir. 1993) (applying harmless error to denial of suppression

motion); United States v. Civella, 666 F.2d 1122, 1130 (8th Cir.

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1981) (finding denial of motion to suppress to be harmless where

“[n]one    of   the    material     [at      issue]    was     introduced     into

evidence”).

           Fiel’s second argument, which he makes for the first

time on appeal, is that the district court failed to provide

notice of its intent to depart from the Guidelines range, as

required   by   Federal    Rule    of   Criminal      Procedure    32(h).       The

district   court,     however,    imposed      a    variance    rather   than    a

departure, and Rule 32(h) does not require a district court to

provide    notice     of   its    intent       to   impose     a   variance     at

sentencing.     See Irizarry v. United States, 553 U.S. 708, 714

(2008).



                                  VIII. Conclusion

            For the foregoing reasons, we affirm the convictions

and sentences addressed herein.              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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