                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4887



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DANNY RAY WELLS,

                                            Defendant - Appellant.


                            No. 03-7686



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DANNY RAY WELLS,

                                            Defendant - Appellant.


Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-02-234)


Submitted:   May 8, 2006                   Decided:   June 29, 2006


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
No. 03-4887 affirmed in part; vacated and remanded in part; No. 03-
7686 affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia; Sol Zalel Rosen,
Washington, D.C., for Appellant.     Kasey Warner, United States
Attorney, R. Booth Goodwin II, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

           Following a jury trial, Danny Ray Wells was convicted of

racketeering   in   violation   of    18     U.S.C.   §   1962(c)   (2000)   and

sentenced to eighty-seven months in prison followed by three years

of supervised release.     In these consolidated appeals from his

conviction and sentence (No. 03-4887) and the district court’s

order denying his pro se motion for production of documents (No.

03-7686), Wells contends his sentence constituted plain error under

United States v. Booker, 543 U.S. 220 (2005), and United States v.

Hughes, 401 F.3d 540 (4th Cir. 2005); he did not knowingly and

intelligently waive the right to seek appellate review of his

conviction; and the evidence was insufficient for the jury to find

him guilty of conduct constituting a “pattern of racketeering

activity.” We affirm the district court’s order denying his motion

for production of documents in No. 03-7686.               In No. 03-4887, we

affirm Wells’s conviction, but vacate his sentence because it

exceeded the range that was supported by the jury’s verdict and

grant the motions to remand for resentencing in accordance with

Booker.*




     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Wells’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating an error is “plain” if “the law at the time of trial was
settled and clearly contrary to the law at the time of appeal”).

                                     - 3 -
          Whether a defendant has effectively waived his right to

appeal is a matter of law we review de novo.      United States v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005).     When the Government

seeks to enforce an appellate waiver, and there is no claim the

Government breached the parties’ agreement, this court will enforce

the waiver if the record establishes the defendant knowingly and

intelligently agreed to waive the right to appeal, and the issue

being appealed is within the scope of the waiver.   Id. at 168-69.

Although the determination of whether a defendant knowingly and

intelligently agreed to waive the right to appeal is often made

based on the adequacy of the district court’s questioning, the

issue ultimately is evaluated by considering the totality of the

circumstances, including the background, experience, and conduct of

the accused.   Id. at 169 (citations and quotations omitted).

          It is not clear from the materials before us on appeal

that Wells knowingly and intelligently agreed to waive appellate

review of his conviction.    The district court did not question

Wells regarding the waiver, which was contained in an agreement

executed after the jury’s verdict, to confirm that it was knowing

and intelligent.   The only time the district court discussed the

waiver with Wells was at a post-judgment hearing in which Wells

contended his intention was always to appeal his conviction.    This

contention, although contradicted by the waiver provision, was

supported by the fact that one of his attorneys filed a notice of


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appeal      of    the    conviction     nearly         simultaneously       with   Wells’s

execution of the agreement containing the waiver provision, and his

counsel’s subsequent filing of a motion for a new trial. Moreover,

Wells alleged his other attorney advised him prior to sentencing

that the Government had repudiated the parties’ agreement.                              We

therefore        decline      to   enforce   the       waiver   of    appellate     rights

contained in this agreement and review Wells’s claim challenging

the jury’s verdict.

                 We conclude the evidence was sufficient for the jury to

find a pattern of racketeering activity beyond a reasonable doubt.

In reviewing a sufficiency challenge, the verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.                          Glasser v. United

States, 315 U.S. 60, 80 (1942).                    Reversal of a conviction for

insufficient evidence is reserved for the rare case in which the

prosecution’s failure is clear. United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997) (quotations and citations omitted).

                 A “pattern of racketeering activity” requires “at least

two acts of racketeering activity, one of which occurred after

[October 15, 1970] and the last of which occurred within ten years

.   .   .   after       the   commission     of    a    prior   act    of   racketeering

activity.”        18 U.S.C. § 1961(5) (2000).              A “pattern” is something

more than the commission of widely separated and isolated or

sporadic offenses, and it requires a relationship between the


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predicates and a threat of continuing activity.                        H.J. Inc. v.

Northwestern Bell Tel. Co., 492 U.S. 229, 238-39 (1989). The three

acts found by the jury constituted more than isolated or sporadic

offenses.     Because of their similarity in means and mode of

execution, they were both sufficiently related and implicitly

threatened   repetition       to   a     degree    consistent     with    continuing

activity.

            Because Wells was sentenced prior to Booker and he did

not raise any Booker claim in the district court, we review his

sentence for plain error.              Hughes, 401 F.3d at 547.          “In Booker,

the Supreme Court ruled that the Sixth Amendment is violated when

a district court, acting pursuant to the Sentencing Reform Act and

the    guidelines,   imposes       a    sentence     greater    than    the   maximum

authorized by the facts found by the jury’s verdict alone.”                      Id. at

546.    As conceded by Wells, his base offense level and the two-

level enhancement for abuse of a position of public trust were

supported by the jury’s verdict. However, his remaining sentencing

enhancements were based on facts not found by the jury.                    Wells was

prejudiced by the error because his sentence exceeded the range of

thirty-seven to forty-six months that would have applied without

the additional enhancements.             See id. at 550-51.

            Although    the    sentencing          guidelines     are    no      longer

mandatory, Booker makes clear that a sentencing court must still

“consult    [the]    Guidelines         and   take    them     into    account    when


                                         - 6 -
sentencing.”      Booker, 543 U.S. at 264.       On remand, the district

court should first determine the appropriate sentencing range under

the guidelines, making all factual findings appropriate for that

determination.      See Hughes, 401 F.3d at 546.             The court should

consider   this    sentencing    range   along   with    the   other   factors

described in 18 U.S.C. § 3553(a) (2000) and then impose a sentence.

Id. If that sentence falls outside the guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C. § 3553(c)(2) (2000).       Id.    The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Id. at 546-47.

           Accordingly,     in    No.     03-4887,      we   affirm    Wells’s

conviction, vacate his sentence, and grant the parties’ motions to

remand for resentencing.        In No. 03-7686, we affirm the district

court’s denial of his motion for production of documents.              We deny

Wells’s motion for leave to file a pro se supplemental brief.              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.



                                           No. 03-4887 AFFIRMED IN PART;
                                            VACATED AND REMANDED IN PART
                                                    No. 03-7686 AFFIRMED




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