                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5161


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

TROY HENLEY, a/k/a Chubbs, a/k/a Bill Bill,

               Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cr-00046-AMD-1)


Argued:   May 14, 2010                      Decided:   July 6, 2010
                     Amended:   April 29, 2020


Before MOTZ, KING, and KEENAN, Circuit Judges


Affirmed by unpublished opinion. Judge Keenan wrote the opinion,
in which Judge Motz and Judge King concurred.


ARGUED: Stuart O. Simms, BROWN, GOLDSTEIN & LEVY, Baltimore,
Maryland, for Appellant.   Michael Joseph Leotta, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.   ON
BRIEF: Rod J. Rosenstein, United States Attorney, Michael C.
Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury convicted Troy Henley of one count of conspiracy to

commit robbery and two counts of robbery, in violation of 18

U.S.C. § 1951(a),       and       two    counts   of   possession     of   a    firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c).

The district court sentenced Henley to a total of 38 years’

imprisonment.       Henley challenges on appeal the district court’s

refusal    to    suppress     evidence      of    statements     he   made      to   law

enforcement officers.             He also asserts that the district court

erred    in     admitting     certain      evidence,     including     evidence      of

Henley’s flight from the police, evidence of his threat against

a witness, and evidence of certain bad acts unrelated to the

robberies.       Finally, Henley challenges certain rulings regarding

jury    instructions,       and    the    procedural     reasonableness         of   his

sentence.         For   the    following         reasons,   we   affirm        Henley’s

convictions and sentence.



                                           I.

       We will review the facts in the light most favorable to the

government.       United States v. Nunez, 432 F.3d 573, 576 (4th Cir.

2005).        In 2006, Henley, along with several co-conspirators,

planned and participated in robberies at a Wal-Mart Store in

Ellicott City, Maryland, on August 2, 2006, and at a Check Point

Check    Cashing    Store     in    Baltimore,      Maryland,    on   December       30,

                                            2
2006.     During the robberies, some of Henley’s co-conspirators

entered the stores, assaulted various employees, pointed guns at

them, and left the stores with cash.

       Several months after these robberies, Baltimore City police

officers arrested Henley for an unrelated larceny that occurred

in 2004.        On March 27, 2007, Detective Julie Pitocchelli and

another officer observed Henley at a “car wash” establishment.

When Henley saw the officers, he “jumped” into the driver’s side

of a truck and drove down an alley.               Detective Pitocchelli and

several other police officers in marked police vehicles chased

the    truck    that    Henley    was   driving    through   the   streets    of

Baltimore.        Ultimately, the truck collided with a tree.                The

police officers apprehended Henley about two blocks away from

the scene of the accident and arrested him.

       After his arrest, the police took Henley to the hospital

based on his complaint that he injured his neck in the accident.

While at the hospital, Henley spoke with Special Agent Stacey

Bradley    of     the   Federal    Bureau    of   Investigation,    the   chief

officer assigned to investigate the robberies described above.

Henley told Agent Bradley that he was willing to “talk” with her

at a later date.

       On April 2, 2007, six days after Henley’s arrest on the

2004    larceny    charge,   Agent      Bradley   and   another    federal   law

enforcement officer interviewed Henley.                 At the start of the

                                         3
interview,    the    officers    informed         Henley    of     his    rights       under

Miranda v. Arizona, 384 U.S. 436 (1966), and Henley signed a

form waiving those rights.            Henley told the officers that he was

“feeling    better,”    and    that    he       had   not   been    taking       the   pain

medication he was prescribed at the hospital.

       During the interview, the officers repeatedly asked Henley

about his acquaintances and their general involvement in the

commission of robbery offenses.                 After the officers told Henley

that these acquaintances had implicated Henley in the commission

of some robberies, Henley denied any such involvement.                            He also

stated that about two or three weeks before the interview, he

learned that the “Feds” were investigating certain robberies and

were   “lookin[g]”     for    him     in    connection         with      those    crimes.

Several months after the interview, Henley was arrested for his

involvement in the present offenses.

       A few weeks after his arrest, Henley placed a telephone

call   to    his    sister    from    jail.           During     this     conversation,

Henley’s sister talked about the police and asked the name of

the female police officer involved in Henley’s case.                               Henley

responded, “Stacey Bradley,” and stated in part, “I hate that

bitch.   I’ll kill that bitch.”

       Henley’s case proceeded to trial on the present offenses.

Before trial, Henley filed a motion in limine seeking to exclude

certain evidence.        The challenged evidence included testimony

                                            4
that he fled from police on March 27, 2007, and his statement to

his   sister     threatening          to    kill      Agent     Bradley.        Henley      also

sought to exclude the testimony of three witnesses, described

below, on the basis that evidence of those witnesses’ criminal

activity        unrelated        to        the       present     robberies        would       be

prejudicial.          The   district          court      denied       Henley’s    motion     in

limine and admitted the challenged evidence at trial.

        Also prior to trial, Henley filed a motion to suppress the

statements he made during his April 2, 2007 police interview.

The district court denied Henley’s motion and permitted Agent

Bradley    to    testify     at       trial      that    during       the    April    2,    2007

interview,       Henley     provided         her      with     his    cell    phone    number.

Agent Bradley testified that this information assisted in her

investigation and resulted in her conclusion that Henley’s cell

phone    was    located     at    the       scene       when    the    present       robberies

occurred.        In   addition,            the   district       court       permitted      Agent

Bradley to testify that Henley told her during the interview

that he was aware he was under investigation for the commission

of some robberies.

      At the close of trial, the district court considered the

parties’ submissions of proposed jury instructions.                              As relevant

to this appeal, Henley submitted a jury instruction addressing

multiple conspiracies, which the district court rejected.                                  Also,



                                                 5
over     Henley’s         objection,          the       district       court    gave       a     jury

instruction regarding Henley’s flight from police.

       Finally,          the    district        court      gave    the       jury    a     limiting

instruction             regarding       the      evidence         of     criminal          activity

unrelated to the present robberies.                          That instruction informed

the jury that it could not “use” evidence of unrelated crimes

committed          by    Henley’s        acquaintances            to    infer       that       Henley

“carried out the acts charged in this case.”                                   The instruction

also stated that even if the jury found that Henley committed

unrelated          crimes           “similar”       to     those        committed          by     his

acquaintances,            the   jury     could      not    consider          such   evidence       to

support an inference that Henley committed the crimes charged in

the indictment.

       After the jury convicted Henley of conspiracy to commit

robbery, two counts of robbery, and two counts of possession of

a firearm, the district court conducted the sentencing phase of

trial.         The       presentence          report      (PSR)        recommended         a    total

Guidelines range for the conspiracy and robbery counts of 210-

262 months, and the statutory minimum sentence for the firearm

counts    of       384     months.        Henley         objected       to    the    recommended

Guidelines         range       on    several     grounds     and       urged    the      court     to

consider       a    total       Guidelines       range      of     78-97      months       for    the

conspiracy and robbery convictions.



                                                    6
                                            II.

                                            A.

       We   first   consider        whether       the     district      court       erred   in

denying Henley’s motion to suppress his statements made to law

enforcement officers during the April 2, 2007 interview.                               Henley

asserts that these statements were involuntary.                               According to

Henley, the interviewing officers failed to determine whether

any injuries from the March 27, 2007 automobile accident “could

have    affected”       Henley’s       ability      to       waive   his     rights    under

Miranda v. Arizona, 384 U.S. 436 (1966).                             Henley also argues

that because of the “congenial” nature of the interview, the

officers persuaded Henley to make incriminating statements that

he   did    not   intend      to   volunteer.           We     disagree      with   Henley’s

arguments.

       On    appeal,       we      review     de        novo     a    district        court’s

determination regarding the voluntary nature of a defendant’s

statement.        United States v. Abu Ali, 528 F.3d 210, 232 (4th

Cir. 2008).       In assessing whether a statement was voluntary, we

examine the totality of the circumstances in which the statement

was given.        Id.         A statement is voluntary when it represents

the free and unconstrained choice by the speaker.                              Schneckloth

v.   Bustamonte,        412     U.S.   218,       225    (1973).        In    contrast,      a

statement is involuntary when the speaker’s will is overborne



                                              7
and his capacity for self-determination is critically impaired.

Id. at 225; Abu Ali, 528 F.3d at 232.

       We observe that Henley fails to assert that any injury he

suffered as a result of the March 27, 2007 accident actually

affected his ability to waive his rights and to speak freely.

Contrary    to    Henley’s        assertion          that    the    officers       failed    to

assess the presence and severity of Henley’s injuries, Agent

Bradley    testified       that     on    the    day        of    the    interview,    Henley

indicated      that   he    felt     better      and        was    not    taking    the    pain

medication he had been prescribed.

       During the time that the interviewing officers engaged in

general conversation with Henley, they made clear their desire

to obtain information about the commission of robberies.                                    The

officers repeatedly asked Henley whether he or his acquaintances

participated in such acts.                  The officers also advised Henley

that his acquaintances had told the officers that Henley had

committed some robberies.                Additionally, over the course of the

interview, Henley stated that he was aware that he was being

investigated      for      his    involvement          in    the    commission       of    some

robberies.

       Based     on   the        totality       of     the        circumstances       of    the

interview, we conclude that Henley’s will was not overborne, and

that his statements were voluntary.                         See Abu Ali, 528 F.3d at

232.    The evidence showed that in seeking to elicit information

                                             8
from Henley about the commission of robberies, the officers did

not    make        any    promises        or    otherwise          induce       Henley      to    make

statements          that      he    did        not       wish    to      make    freely.           See

Schneckloth,            412   U.S.     at      225;        Abu    Ali,    528     F.3d      at    232.

Therefore,         we     hold     that     the      district      court        did   not    err    in

denying Henley’s motion to suppress.

                                                     B.

       Next,       Henley         argues    that          the    district       court    erred     in

admitting evidence of his attempt to flee from the police as

proof of his consciousness of guilt.                              Henley also argues that

the    district          court     erred       in    giving      the     jury    an   instruction

regarding flight.             Henley notes that after he attempted to evade

capture, he was arrested on an outstanding, unrelated warrant

from       2004.         Therefore,        Henley         asserts,     the      evidence     of    his

flight showed no more than a general consciousness of guilt and

did    not     reflect        a    particular            sense    of     guilt    based      on    his

involvement in the present robberies. ∗

       In response, the government argues that because Henley knew

he was under investigation for his involvement in some robberies

at the time he fled from the police, the district court properly


       ∗
       Henley also argues that because he was not the driver of
the truck, his action did not constitute flight from the police.
This argument is without merit because two officers testified
that Henley was the driver of the truck.



                                                     9
admitted the evidence of flight.                  The government further argues

that this evidence supported the district court’s decision to

instruct the jury on flight.                  We agree with the government’s

arguments.

       On appeal, we review under an abuse of discretion standard

a district court’s decision to admit certain evidence and to

give     an    accompanying      jury       instruction.         United    States   v.

Udeozor, 515 F.3d 260, 265 (4th Cir. 2008); United States v.

Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006).                     We have recognized

that     evidence         regarding     a    criminal      suspect’s      flight     is

inherently weak because one who flees to evade capture by the

police does not necessarily do so based on his consciousness of

guilt for committing a certain crime.                      See United States v.

Foutz, 540 F.2d 733, 739-40 (4th Cir. 1976).                     Therefore, we have

held that before a jury may be allowed to consider evidence of

flight, the following links in a chain of inferences must be

established         and    adequately       supported    by     the    evidence:    (1)

between a defendant’s behavior and his flight, (2) between his

flight        and   his    consciousness          of   guilt,    (3)    between     his

consciousness of guilt and his consciousness of guilt concerning

the crime charged, and (4) between his consciousness of guilt

concerning the crime charged and his actual guilt of the crime

charged.        United States v. Obi, 239 F.3d 662, 665-65 (4th Cir.

2001).

                                             10
      In the present case, Henley challenges only the adequacy of

the evidence to support the third link, the connection between

his   consciousness   of    guilt     and   his   consciousness     of   guilt

concerning the present robberies.             Even though the robberies

occurred several months prior to Henley’s flight from police,

Henley told the officers during his April 2, 2007 interview that

he had learned just three weeks before his attempt to evade

capture that he was under investigation for his participation in

some robberies.     In contrast, the criminal activity that served

as the basis for Henley’s arrest took place at least three years

before his flight from police.

      The close connection in time between Henley’s flight and

his recently acquired knowledge that he was under investigation

for some robberies supports the inference that Henley fled from

the   police    because    of   his    involvement     with   the    present

robberies.     Therefore, we conclude that the evidence established

and adequately supported the link between Henley’s consciousness

of guilt and his consciousness of guilt for the crimes charged.

See Obi, 239 F.3d at 665.

      We also conclude that the evidence of Henley’s flight was

sufficient to support the court’s decision to give the jury a

“flight” instruction.      This jury instruction read:

      You have heard evidence that defendant fled from law
      enforcement after he believed that he was about to be
      arrested for certain crimes. If proved, the flight of

                                      11
       a defendant after he knows he is to be accused of a
       crime may tend to prove that the defendant believed he
       was guilty.      It may be weighed by you in this
       connection and weighed with all the other evidence.
       However, flight may not always reflect feelings of
       guilt.   Moreover, feelings of guilt which are present
       in many innocent people do not necessarily reflect
       actual guilt.

       We observe that the language of the jury instruction was

balanced and informed the jurors that evidence of flight may not

reflect Henley’s consciousness of guilt.                   We conclude that this

instruction      fairly       addressed   the    inherent    weakness     of   flight

evidence and permitted the jury to evaluate the evidence in this

case in determining whether the evidence of flight demonstrated

Henley’s consciousness of guilt for the crimes charged.                          See

Foutz,    540    F.2d    at    739-40.        Accordingly,    we   hold   that   the

district    court       did    not    abuse     its   discretion    in    admitting

evidence of Henley’s flight and in instructing the jury on this

issue.

                                          C.

       We next consider Henley’s argument that the district court

erred in admitting into evidence his statement threatening to

kill     Agent   Bradley.            Henley     contends    that   his    statement

constituted an isolated expression of anger unaccompanied by a

plan to carry out the threat.                  Henley asserts that because he

did not intend to harm or influence a potential witness, the




                                          12
court     improperly          admitted       the        statement       into    evidence.        We

disagree with Henley’s arguments.

       We review a district court’s admission of evidence for an

abuse of discretion.                 Udeozor, 515 F.3d at 265.                    We have held

that      evidence       of     a    threat        against       an     adverse    witness       is

admissible to prove a defendant’s consciousness of guilt if the

evidence relates to the offense charged and is reliable.                                     United

States v. Young, 248 F.3d 260, 272 (4th Cir. 2001).                                         We have

explained        that    such       evidence        is    admissible       because      a    threat

against     an    adverse       witness           indicates      a    defendant’s       awareness

that his case is weak or unfounded.                            United States v. Van Metre,

150 F.3d 339, 352 (4th Cir. 1998).

       We    observe          that    Henley’s           statement       was    admitted       into

evidence to show Henley’s consciousness of guilt of the crimes

charged and not to prove a separate criminal offense.                                       In this

context, we conclude that the district court did not abuse its

discretion          in    admitting               Henley’s        threatening          statement.

Henley’s     statement,          “I’ll       kill       [Agent    Bradley],”      demonstrated

his    present      desire      to        harm    an    investigator       of    the   robberies

charged in the indictment.                   Also, Henley made the statement only

a   few     weeks      after        his    arrest        for    these    robberies.           Thus,

Henley’s threatening statement directly related to the charged

offenses, and the district court did not abuse its discretion in

admitting        the     statement               into    evidence        to     show     Henley’s

                                                   13
consciousness of guilt.           See Young, 248 F.3d at 272; Van Metre,

150 F.3d at 352.

                                          D.

      Henley   also      argues    that     the         district    court      erred    in

permitting     testimony     by     three       witnesses         about   “bad     acts”

unrelated to the robberies charged in the indictment.                             Henley

asserts that he was unduly prejudiced by the testimony of

       and                            concerning          their    “other”      criminal

activity, and                      ’ testimony concerning his “scouting”

of check cashing store locations with Henley.                       We disagree with

Henley’s assertions.

      Under Rule 403 of the Federal Rules of Evidence, evidence

is   admissible    when    the    danger       of   unfair    prejudice        does    not

outweigh the probative value of the evidence.                       See also United

States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).                                 With

regard to potentially prejudicial evidence, we have acknowledged

that cautionary and limiting instructions given to the jury may

alleviate slight dangers of prejudice.                    Id. at 833 n.15 (citing

United States v. Queen, 132 F.3d 991 (4th Cir. 1997) and United

States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995)).

      At trial,            testified that he had entered into a plea

agreement    and   had    pled    guilty    to      a    charge    of   bank    robbery.

       clearly stated, however, that Henley was not involved in

the commission of that bank robbery.                      This portion of               ’s

                                          14
testimony,       therefore,         related    only       to           ’s    own       criminal

activity and served to impeach                       ’s credibility.

                also testified that Henley told him that Henley had

committed       some     robberies      at    gas        stations.          This       evidence

provided        the    jury     with      background           information         concerning

Henley’s    confidential            relationship      with             .     The       district

court    mitigated       any    prejudicial         effect      of   this    testimony        by

giving     an     immediate         cautionary       instruction           and     a    similar

limiting    jury       instruction      at    the    conclusion        of        trial.      See

Grimmond, 137 F.3d at 833, n.15.

                      testified that Henley discussed the possibility of

committing        “other       robberies”          with                     before          their

participation in the robbery at the Check Point store.                                       This

evidence    likewise          was    probative      of    the     relationship          between

Henley and one of his co-conspirators.                         Additionally,                    ’

testimony about his “scouting” missions with Henley of check

cashing establishments directly related to the robbery at the

Check    Point        store     and,    therefore,         was       probative         evidence

regarding the crimes charged against Henley.                               Accordingly, we

conclude that          the    probative      value    of    the      testimony         by   these

three witnesses outweighed its prejudicial effect, and that the

district court did not err in admitting this testimony.                                      See

id., 137 F.3d at 833.



                                              15
                                             E.

      Henley also challenges the district court’s refusal to give

the jury an instruction regarding multiple conspiracies.                               Henley

asserts      that     the     evidence       showed       that    his     co-conspirators

engaged in “different enterprises” beyond the conspiracy charged

in   the    indictment       and    that,     without       the    multiple       conspiracy

instruction,        the     jury       improperly        could    impute       evidence    of

unrelated activity to Henley.                 Henley argues that this evidence

showed      that    Henley’s       co-conspirators          committed       robberies       at

banks      and    were    suspects      in   some     robberies      that       occurred    at

restaurants.         Finally, Henley asserts that this evidence also

included information that he routinely sold illegal drugs, which

did not relate to the overall conspiracy at issue in his case.

We are not persuaded by Henley’s arguments.

      We review a district court’s decision to give or refuse a

jury instruction for an abuse of discretion.                         Hurwitz, 459 F.3d

at 474.      We have held that a district court is not required to

instruct the jury on multiple conspiracies unless the evidence

demonstrates        that     the    defendant       was     involved      in    a     separate

conspiracy unrelated to the overall conspiracy charged in the

indictment.        Nunez, 432 F.3d at 578.

      In     this    case,       the    evidence      did    not    show       that     Henley

participated        in     any     conspiracies       other       than    the     conspiracy

charged      in     the     indictment.           With     regard    to     the       evidence

                                             16
concerning    robberies         committed      at    banks     and   restaurants,        the

evidence demonstrated that Henley did not participate in these

crimes.      The       only    evidence       of    Henley’s     unrelated       criminal

activity involved Henley’s sale of drugs and his commission of

robberies    at     gas       stations.            This    evidence,      however,       was

insufficient      to     support      Henley’s       requested       jury      instruction

because the evidence failed to show that Henley entered into any

agreements or otherwise conspired with other criminal agents to

commit these crimes.            See Nunez, 432 F.3d at 578.               Additionally,

the district court’s cautionary and limiting instructions to the

jury mitigated any potential prejudice caused by this evidence.

Therefore, we conclude that the district court did not abuse its

discretion     in       refusing         to    give       a     multiple        conspiracy

instruction.

                                              F.

     Finally, Henley asserts that his sentence was procedurally

unreasonable.          He     contends    that      the   district      court    erred    in

failing to calculate the appropriate Guidelines range at the

outset of the sentencing proceeding.                      According to Henley, the

district court’s error prejudiced him because the court did not

consider and rule on Henley’s objections to the Guidelines range

recommended in the PSR for his conspiracy and robbery counts.

     Henley concedes that he did not make this argument in the

district    court      and    that,   therefore,          we   review    his    claim    for

                                              17
plain error.           United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010) (citing Fed. R. Crim. P. 52(b)).                       To demonstrate plain

error, a defendant must show that the district court erred, that

the error was plain, and that the error affected the defendant’s

substantial rights.            United States v. Olano, 507 U.S. 725, 732

(1993).       In       the   context   of   sentencing,      an    error    affects     a

defendant’s substantial rights if the defendant can show that

his imposed sentence was longer than it would have been absent

the district court’s error.                 United States v. Angle, 254 F.3d

514, 518 (4th Cir. 2001).

      In this case, we first consider whether the district court

committed significant procedural error.                  Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155,

161 (4th Cir. 2008).            As a matter of procedure, a district court

must begin its sentencing proceeding with a correct calculation

of   the   applicable        Guidelines     range.      Gall,      552   U.S.    at   49;

Evans, 526 F.3d at 161.

      Here,      the     district      court     did   not   err    by     failing     to

calculate     the       applicable     Guidelines      range,      because,      at   the

beginning of the sentencing proceeding, the court adopted the

“approach” and the calculated range set forth in the PSR.                             The

PSR recommended the statutory minimum sentence for the firearm

counts     and     a     Guidelines     range     of   210-262     months       for   the

conspiracy and robbery counts.

                                            18
      Even if we assume, however, that the district court erred

in    failing     to   announce     a    “final”        Guidelines     range     before

considering the factors under 18 U.S.C. § 3553(a), Henley has

failed to show that, absent such error, his sentence would have

been shorter than the one actually imposed.                      See Angle, 254 F.3d

at 518.        In fact, Henley’s 72-month sentence for the conspiracy

and   robbery      counts   was   shorter           than   the    “low-end”    of   the

Guidelines range of 78-97 months that Henley urged the district

court     to     consider   based       on        his   objections    to   the      PSR.

Therefore, we conclude that the district court did not plainly

err in imposing Henley’s sentence, and that Henley’s sentence

was procedurally reasonable.



                                         III.

      Based on our holdings stated above, we affirm the district

court’s judgment.

                                                                               AFFIRMED




                                             19
