                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5048



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


KEVIN BATTS, a/k/a K-Smooth,

                                            Defendant - Appellant.



                            No. 04-5049



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CHRISTOPHER M. BROWN,

                                            Defendant - Appellant.



                            No. 04-5050



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus
MARIO L. ALLEN,

                                             Defendant - Appellant.



                             No. 04-5051



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


KEVIN LANGSTON, a/k/a Little One,

                                             Defendant - Appellant.



                             No. 04-5052



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


ANTOINE D. ALLEN, a/k/a Ski,

                                             Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  James R. Spencer, District
Judge. (CR-03-394)


Argued:   February 3, 2006                 Decided:   March 21, 2006


                                  2
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: Charles Manley Allen, Jr., GOODMAN, ALLEN & FILETTI, Glen
Allen, Virginia, for Appellants. Roderick Charles Young, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.     ON BRIEF: Carolyn V. Grady,
EPPERLY & FOLLIS, P.C., Richmond, Virginia, for Appellant
Christopher M. Brown; Jeffrey L. Everhart, RICE, EVERHART & BABER,
Richmond, Virginia, for Appellant Mario L. Allen; Samuel P.
Simpson, V, Richmond, Virginia, for Appellant Kevin Langston; James
Mark Nachman, NACHMAN & KAUFMAN, L.L.P., Richmond, Virginia, for
Appellant Antoine D. Allen.      Paul J. McNulty, United States
Attorney, Michael J. Elston, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Kevin Batts, Christopher Brown, Kevin Langston, Mario

Allen, and Antoine Allen appeal their convictions and sentences for

Racketeer     Influenced    and    Corrupt   Organizations      Act    (RICO)

conspiracy and conspiracy to distribute cocaine base.             We affirm

the convictions.     Applying United States v. Booker, 543 U.S. 220

(2005), we vacate the sentences of Batts, Brown, and Langston and

remand their cases for resentencing.          We affirm the sentences of

Mario Allen and Antoine Allen.



                                     I.

            A grand jury in the Eastern District of Virginia handed

down a third superseding indictment against the five defendants in

March    2004.    The   indictment    charged   two   counts:      (1)   RICO

conspiracy, 18 U.S.C. § 1962(d), and (2) conspiracy to distribute

and possess with intent to distribute cocaine base, 21 U.S.C.

§ 846.     The indictment alleged the following.       The defendants were

members of the Third Ward Gang, a street gang that engaged in

extensive open-air sales of cocaine base, or crack, in a section of

Petersburg, Virginia.      The gang was organized into three factions:

the Hill Top Posse, the Bottom, and the Dirty Spurs.            Together the

factions    protected   their     sales   territory   and   promoted     their

identity through violent acts. Among these acts were the murder of

Robert Brabson, Jr. and the attempted murder of DeAndrew Carter.


                                      4
             The defendants pleaded not guilty and proceeded to trial.

The    district    court's   pretrial       discovery    order   required      the

government to provide written summaries of its expert testimony no

more than seven days prior to trial.           The government identified an

FBI agent, John Lanata, as a gang expert, but the government’s

written submission did not identify the bases and reasons for his

opinions as required by Rule 16 of the Federal Rules of Criminal

Procedure.        Before trial the defendants objected to Lanata's

testimony under both the procedural rule and Rule 702 of the

Federal Rules of Evidence.        The district court denied both the

procedural objection and the evidentiary objection, allowing Lanata

to testify at trial.

             The defendants moved for acquittal at the conclusion of

the government's case-in-chief, and the district court denied the

motions.     At closing argument defense counsel contended that to

prove Mario Allen and Antoine Allen committed first-degree murder

in shooting Brabson (a racketeering activity under Count 1), the

government was required to show that they intended to kill Brabson.

In    its   rebuttal   the   government      argued     that   the   concept    of

transferred intent allowed the jury to find an intent to kill

Brabson based on an intent to kill Carter, the shooters' actual

target.

             The jury returned guilty verdicts as to all defendants on

the two counts.        In November 2004, pursuant to United States v.


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Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381

F.3d 316, 353-54 (4th Cir. 2004) (en banc), cert. granted and

judgment vacated, 125 S. Ct. 1051 (2005), the district court

announced two sentences for each defendant:                    the actual sentence

treating the United States Sentencing Guidelines as mandatory, and

an alternate sentence treating the guidelines as advisory.                          For

Mario   Allen    and   Antoine      Allen,      the   actual   and     the   alternate

sentences were identical sentences of life in prison; for the

remaining defendants, each alternate sentence was shorter than the

actual sentence.



                                          II.

           The defendants first argue that the trial evidence was

insufficient      to   sustain      the   jury's        verdict   of    guilt.       In

particular, the defendants contend that there was not enough

evidence to prove (A) Count 1's allegation that the Third Ward Gang

was a racketeering organization subject to RICO, or (B) Count 2's

allegation      that   the   gang    members      had    formed   an    agreement    to

distribute drugs.       The jury's verdict "must be sustained if there

is substantial evidence, taking the view most favorable to the

Government, to support it." United States v. Glasser, 315 U.S. 60,

80 (1942).




                                          6
                                         A.

            The defendants argue that they were entitled to acquittal

on the RICO conspiracy count because there was not enough evidence

to show the Third Ward Gang was an "enterprise" covered by the

statute.       They claim a lack of evidence that the gang had a

discernible hierarchy with superior and subordinate members.                   They

also   claim     that   in   selling    drugs   there    was   competition,    not

cooperation, among the gang members.

            A RICO "enterprise" is a "group of persons associated

together for a common purpose of engaging in a course of conduct,"

which is "proved by evidence of an ongoing organization, formal or

informal, and by evidence that the various associates function as

a continuing unit."          United States v. Turkette, 452 U.S. 576, 583

(1981).     We have held that a RICO enterprise is characterized by

"continuity, unity, shared purpose and identifiable structure."

United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994).

            We    affirm     because    substantial     evidence    supports   the

jury's conclusion that the Third Ward Gang was a racketeering

enterprise.        Although     the    defendants   assume     an   "identifiable

structure" can only be proven by evidence of a distinct hierarchy,

they cite no precedent imposing such a requirement.                     Nor does

internal competition prevent the gang from being an enterprise.

See United States v. Fernandez, 388 F.3d 1199, 1224 (9th Cir. 2004)

(conflict        between       gang     factions        supported      enterprise


                                          7
characterization because opponents were jockeying for "position

within and control of the organization").

            The government's witnesses testified that the common

purpose of the gang was dealing crack cocaine, a goal pursued

regularly for many years.        For example, witness Ernest Booker

testified that gang members "looked out for the police for one

another" and protected each other when they went to clubs.              J.A.

539.   He also testified that when a member ran out of drugs he

routinely   referred   his   customers   to   other   gang   members.    In

addition, witness Ronald Blowe testified that gang members took

turns selling "[s]o everybody can get a sale," J.A. 672, and that

some gang members gave orders that others obeyed.             The evidence

also showed Third Ward Gang members committed violent crimes to

intimidate rivals (such as the "Carter Boys" from the city's Fifth

Ward) and preserve turf.

            This evidence was sufficient to prove that the Third Ward

Gang was an ongoing organization with a structure and the shared

purpose of enriching members and preserving the gang's power over

its section of Petersburg.     In sum, substantial evidence supports

the jury's guilty verdicts on Count 1.



                                   B.

            The defendants argue that the evidence was insufficient

to sustain their convictions on Count 2 because they often competed


                                    8
with one another in selling drugs and their common association with

the gang is not enough to show agreement.   To prove conspiracy to

distribute a controlled substance, the government must establish

that: (1) two or more persons agreed to distribute the substance;

(2) the defendant knew of the conspiracy; and (3) the defendant

knowingly and voluntarily became part of the conspiracy.    United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).

          The government’s evidence was sufficient to establish

that the defendants all were members of the Third Ward Gang, that

they sold drugs within a defined territory, and that they barred

outsiders from selling drugs within that territory.   For example,

witness Fred Jones identified all defendants (except Batts) as his

"fellow drug dealers," J.A. 451, and he identified Batts as a

member of the Spurs sub-gang. Jones also indicated that only Third

Ward Gang members were allowed to sell within the gang's defined

territory. This evidence shows that gang members tacitly agreed to

maintain their control over the crack "market" in the neighborhood.

The defendants cooperated by, for example, "look[ing] out for the

police for one another."   J.A. 539.

          Thus, substantial evidence supports the jury’s verdicts

on Count 2 that convicted the defendants of conspiracy to deal in

crack.




                                 9
                                         III.

           The defendants next argue that they suffered prejudice

when the district court (A) allowed expert Lanata to testify, and

(B) permitted the government to explain the concept of transferred

intent in its rebuttal closing argument even though the jury never

received an instruction on that concept.



                                          A.

           The defendants press two arguments that Lanata's expert

testimony for the government should have been excluded.                      First,

they argue that the government's brief disclosure of the content of

Lanata's opinion did not comply with Fed. R. Crim. P. 16(a)(1).

The   government    retorts     that     it    obeyed   the   rule   by   providing

Lanata's name and curriculum vitae four months before trial,

summarizing his testimony in responding to the defense motion to

exclude, and making him available for cross-examination at the

pretrial evidentiary hearing.

           Fed.     R.    Crim.     P.   16     (a)(1)(G)     requires    that   the

government furnish, upon the defendant's request, a written summary

of any expert testimony that the government intends to use under

Fed. R. Evid. 702, 703, or 705 during its case-in-chief at trial.

The summary must describe the witness's opinions, the bases and

reasons for those opinions, and the witness's qualifications. Even

where   there     has    been     an   abuse     of   discretion,    reversal     is


                                          10
inappropriate    unless   the    defendant    establishes     prejudice   by

demonstrating that it is likely that had the government complied

with the discovery rule (not had the evidence been suppressed), the

verdict would have been different.         See United States v. Chastain,

198 F.3d 1338, 1348 (11th Cir. 1999).

            Assuming   without     deciding      that   the   government's

disclosure did not satisfy the requirements of Fed. R. Crim. P.

16(a)(1)(G) because it did not provide the bases and reasons for

Lanata’s conclusions, we are not persuaded that the defendants were

prejudiced by this error.        Defendant Brown's counsel questioned

Lanata at the pretrial hearing, and all the defendants had access

to the information elicited. Lanata's responses to these questions

furnished   counsel    with   ample   material    for   meaningful   cross-

examination at trial, and counsel's decision not to capitalize on

that material is not fairly traceable to government conduct.

Because the error, if any, was harmless, we cannot reverse on this

basis.

            Second, the defendants argue that Lanata's opinion did

not meet the requirements of Fed. R. Evid. 702 for the admission of

expert testimony because Lanata did not have scientific expertise.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).

District court evidentiary decisions are reviewed for abuse of

discretion.     United States v. Forrest, 429 F.3d 73, 79 (4th Cir.

2005).


                                      11
            Law   enforcement     officials    are     allowed,   within   the

discretion of district courts, “to testify as experts concerning

the modus operandi of drug dealers in areas concerning activities

which are not something with which most jurors are familiar."

United States v. Sarabia-Martinez, 276 F.3d 447, 452 (8th Cir.

2002); see United States v. Boissoneault, 926 F.2d 230, 232 (2d

Cir. 1991) (same).         Allowing expert testimony on gangs who deal

drugs also falls within this discretion.         A witness relying solely

or primarily on experience, of course, "must explain how that

experience leads to the conclusion reached, why that experience is

a sufficient basis for the opinion, and how that experience is

reliably    applied   to    the   facts,"    because    "the   trial   court's

gatekeeping function requires more than simply taking the expert's

word for it."     Fed. R. Evid. 702 Advisory Committee's Notes to 2000

Amendments (citations omitted).

            Here, the district court amply satisfied the gatekeeping

standard.    For example, the court asked Lanata at the pretrial

hearing what texts he used in teaching his gang course to new FBI

recruits, and the court clarified to the parties that Lanata's

expertise on gangs generally did not constitute expertise on the

Third Ward Gang in particular.              Based on the extent of this

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

discretion in admitting Lanata’s testimony under Rule 702.

            Thus, admission of the expert testimony was proper.


                                      12
                                   B.

            The defendants contend that the district court erred in

permitting the government's rebuttal argument at closing that the

transferred intent concept applied to the Brabson murder. Virginia

law explains this concept as follows:       "[I]f an accused shoots at

another intending to kill him, and a third person is killed because

of the act, that same intent follows the bullet and is transferred

to the killing of the third person, even if such death was

accidental or unintentional."     Riddick v. Commonwealth, 308 S.E.2d

117, 119 (Va. 1983).     The district court itself never instructed

the jury on transferred intent.

            As we stated in United States v. Tipton, 90 F.3d 861 (4th

Cir. 1996),

      [t]here is no question of the court’s discretionary power
      to give post-argument instructions “to remedy omissions
      in pre-argument instructions or to add instructions
      necessitated by the arguments.”     Fed. R. Crim. P. 30
      advisory committee's note to 1987 Amendment.      But the
      rule plainly contemplates that parties will know what the
      court will instruct before they make their arguments.
      See id.

90   F.3d   at   886.   In   crafting   their   closing   arguments,   the

defendants understandably relied on the initial jury instructions,

which omitted the transferred intent theory.          (The government's

contention that it was entitled to explain transferred intent to

the jury because the defense closing argument invited this reply is

not persuasive.     The invited reply rule covers only prosecutorial

comments "responsive to an inflammatory attack from defense counsel

                                   13
or an accusation of perjury."              United States v. Ollivierre, 378

F.3d   412,     422   (4th   Cir.   2004),      vacated   on     other    grounds    by

Ollivierre v. United States, 543 U.S. 1112 (2005)).

              The     defendants    argue       that   only      by   applying      the

transferred intent concept could the jury have concluded Brabson's

murder    was    intentional,       and   that     this    application      was     not

legitimate because the jury's understanding of the concept came not

from the district court's instructions but from the government's

rebuttal.       This claim does not, however, warrant reversal of the

defendant's RICO conspiracy convictions.                 The government rebuttal

argument simply did not misstate any legal rule or suggest that the

government's burden of proof fell below the standard of beyond a

reasonable doubt.         It may well have been wiser for the district

court to exercise its "discretionary power," Tipton, 90 F.3d at

886, to give a post-argument instruction, but we cannot say that

the court's failure to do so here amounted to reversible error.

Fed. R. Crim. P. 52(a).



                                          IV.

              Finally,    the   defendants       argue    that    their    sentences

contravened Booker. Under Booker there are two types of sentencing

errors.       First, pursuant to a mandatory guidelines regime, "a

sentencing court commits Sixth Amendment error if it enhances a

sentence beyond the maximum authorized by facts found by a jury


                                          14
beyond a reasonable doubt or admitted by the defendant."             United

States v. Rodriguez, 433 F.3d 411, 414 (4th Cir. 2006).             This is

because the Sixth Amendment guarantees that "[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury . . . ."       U.S. Const. amend. VI.

Second,   "[a]   court   commits   statutory   error   if   it   treats   the

Guidelines as mandatory, rather than as advisory."          Rodriguez, 433

F.3d at 414.     The defendants appear to assert both types of error.

           By objecting to their sentences based on Blakely v.

Washington, 542 U.S. 296 (2004), each defendant preserved his

Booker claim.    Rodriguez, 433 F.3d at 415.     We therefore review for

harmless error.       The government bears the burden in harmless

constitutional error review of showing beyond a reasonable doubt

that the error did not affect the defendant's substantial rights.

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).               An

error that affected the outcome of the proceedings is one that

affected substantial rights.        United States v. Stokes, 261 F.3d

496, 499 (4th Cir. 2001).     We may disregard an error in sentencing

if we are certain that the error "did not affect the district

court's selection of the sentence imposed."            Williams v. United

States, 503 U.S. 193, 203 (1992).

           Although the district court sentenced the defendants

under a mandatory guidelines regime, we conclude that this error

was harmless as to defendants Mario Allen and Antoine Allen.


                                    15
Because the district court announced that even under an advisory

regime   it    would   impose   the   same   life   sentence   that   it   had

ascertained for these defendants by treating the Guidelines as

mandatory, the outcome of the sentencing proceedings was not

changed by the error, so no substantial rights were affected.               We

accordingly affirm these life sentences.

              The government concedes, however, that it cannot show

that the error as to defendants Batts, Brown, and Langston was

harmless because the alternative sentence (treating the guidelines

as advisory) that the district court announced for each was shorter

than the sentence actually imposed.            We accordingly vacate the

sentences as to these defendants and remand for resentencing.

United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).



                                      V.

              For the foregoing reasons we affirm the defendants’

convictions. We vacate the sentences of Batts, Brown, and Langston

and remand for resentencing, but we affirm the sentences of Mario

Allen and Antoine Allen.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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