                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 11-4284


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra,

               Defendant – Appellant.



                            No. 11-4300


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JOHNNY ELIAS GONZALEZ, a/k/a Solo,

               Defendant – Appellant.



                            No. 11-4319


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
ELVIN PASTOR FERNANDEZ-GRADIS, a/k/a Tigre,    a/k/a   Juan
Alberto Irias, a/k/a Freddy, a/k/a Flaco,

               Defendant – Appellant.



                            No. 11-4320


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JULIO CESAR ROSALES LOPEZ, a/k/a Stiler,

               Defendant – Appellant.



                            No. 11-4418


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

CARLOS ROBERTO FIGUEROA-PINEDA, a/k/a Drogo,

               Defendant – Appellant.



                            No. 11-4458


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.



                                 2
JUAN GILBERTO VILLALOBOS, a/k/a Smokey, a/k/a Smoke,

                Defendant – Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.      Robert J. Conrad,
Jr., Chief District Judge.       (3:08-cr-00134-RJC-23; 3:08-cr-
00134-RJC-DSC-18;   3:08-cr-00134-RJC-DSC-6;   3:08-cr-00134-RJC-
DSC-4; 3:08-cr-00134-RJC-DSC-14; 3:08-cr-00134-RJC-DSC-5)


Argued:   September 18, 2012                    Decided:   May 14, 2013


Before TRAXLER,   Chief   Judge,   and   DIAZ   and   THACKER,   Circuit
Judges.


No. 11-4284 affirmed in part, reversed in part, and remanded;
No. 11-4300, No. 11-4319, No. 11-4320, No. 11-4418, and No. 11-
4458 affirmed by unpublished per curiam opinion.    Chief Judge
Traxler wrote a separate opinion concurring in part and
dissenting in part.


ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD,
LLP, Greenville, South Carolina; David Quentin Burgess, LAW
OFFICE OF DAVID Q. BURGESS, Charlotte, North Carolina; John
Clark   Fischer,  RANDOLPH   &  FISCHER,   Winston-Salem,  North
Carolina; Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF
CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellants. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.     ON BRIEF: Harold Bender, LAW
OFFICE OF HAROLD BENDER, Southport, North Carolina, for
Appellant Gonzales; Richard E. Beam, Jr., HUBBARD & BEAM,
Gastonia, North Carolina, for Appellant Lopez.          Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                   3
PER CURIAM:

                                             I.

               La Mara Salvatrucha (“MS-13”) is a worldwide street

gang with Los Angeles origins.                    It was formed in the 1980’s by

refugees    fleeing      to    the    United       States     from      war-torn      Central

American       countries.       While     MS-13       was    originally         formed      for

protection of its members, its current objective is to amass

wealth, power, and territory.

               There are six Appellants in this matter, all members

of    MS-13:     (1)   Santos    Anibal       Caballero          Fernandez     (“Caballero

Fernandez”); (2) Johnny Elias Gonzales (“Gonzales”); (3) Elvin

Pastor    Fernandez-Gradis           (“Fernandez-Gradis”);              (4)    Julio     Cesar

Rosales    Lopez       (“Lopez”);      (5)     Carlos       Roberto      Figueroa-Pineda

(“Figueroa-Pineda”);            and      (6)        Juan         Gilberto          Villalobos

(“Villalobos”).         In June, 2008, Appellants, along with 20 other

MS-13    members,      were     tried    and       convicted       of    various         crimes

related to their participation in the gang in the United States.

The     convictions      relevant       to        this      appeal      are:       (1)     each

Appellant’s      conviction      for    conspiracy          to    commit      racketeering;

(2) Appellant Caballero Fernandez’s conviction as an accessory

after-the-fact to the murder of Ulysses Mayo; and (3) Appellant

Figueroa-Pineda’s        two    convictions          of    possession         of   marijuana

with    intent    to   distribute       and       conviction      of    possession        of   a



                                              4
firearm in furtherance of a drug trafficking crime. 1                        Appellant

Villalobos also appeals the district court’s decision to apply

an obstruction of justice enhancement to his sentence.

            Appellants collectively challenge their convictions on

several   fronts.         First,     Appellants       argue    the       evidence    was

insufficient      to     establish    that     they    each        entered    into   an

agreement    to    commit     two    predicate    acts        of    racketeering      as

required for a conviction of conspiracy to commit racketeering.

Second, Appellants argue that the district court failed to adopt

adequate safeguards to minimize the prejudice of its use of an

anonymous jury.        Third, Appellants argue that the district court

erred in failing to give a “multiple conspiracy” instruction to

the jury.        Finally, Appellants argue that, even if the first

three errors are individually harmless, the combined effect of

those errors triggers the cumulative error doctrine, compelling

reversal.

            As     noted,     several        Appellants        also       individually

challenge        their      respective       convictions           and       sentences.

Specifically,       Appellant       Caballero     Fernandez         challenges       his

conviction for accessory-after-the-fact to murder, arguing that

the evidence does not establish beyond a reasonable doubt that


     1
       For ease of organization, the facts related to each of
these convictions are detailed in the applicable sections below.



                                         5
he knew the victim was dead or dying.                       Appellant Figueroa-Pineda

challenges       his    convictions      for           possession         with       intent    to

distribute and for possession of a firearm in furtherance of a

drug trafficking offense, arguing that the evidence established

neither     intent      to    distribute          nor        use    of      a    weapon        “in

furtherance” of drug trafficking offenses.                           Finally, Appellant

Villalobos    argues      the      evidence      was     insufficient           to    establish

that he obstructed justice.

            We     affirm     as    to   each         issue    on        appeal,      with     the

exception    of     Appellant       Caballero          Fernandez’s          conviction         for

accessory-after-the-fact,            which       we     reverse.           We    also    remand

Appellant Caballero Fernandez’s case for resentencing.

                                            II.

                                       A.
                       Conspiracy to Commit Racketeering

                                            1.

            Each       Appellant      was        convicted          of     engaging       in     a

conspiracy to commit racketeering beginning at least in or about

2003.     Following       these      convictions,            each    Appellant         filed    a

motion for a judgment of acquittal.                         These motions were denied

and this appeal followed.

                                            2.

            We    review     the     denial       of    a    motion       for    judgment      of

acquittal de novo.           United States v. Penniegraft, 641 F.3d 566,


                                             6
571     (4th    Cir.       2011).      Where      a    defendant      challenges    the

sufficiency of the evidence to support a jury’s guilty verdict,

we view all evidence and draw all inferences in favor of the

government.          Id.     We will sustain the verdict as long as any

rational fact finder would find the essential elements beyond a

reasonable doubt.             United States v. Higgs, 353 F.3d 281, 313

(4th Cir. 2003).

                                           3.

               The     conspiracy        provision          to     the   Racketeering

Influenced      and    Corrupt      Organizations       Act      (“RICO”),   18   U.S.C.

§ 1962(d), makes it a crime to conspire to violate any one of

RICO’s    three      substantive       provisions. 2        Here,     Appellants    were

convicted of conspiracy to violate § 1962(c), which contains

three     elements:        (1)   the   conduct,       (2)   of   an   enterprise,    (3)

through a pattern of racketeering. 3                  RICO defines an “enterprise”

to      include        “any      individual,          partnership,       corporation,

association, or other legal entity, and any union or group of

      2
       18 U.S.C. § 1962(d) provides as follows: “It shall be
unlawful for any person to conspire to violate any of the
provisions of subsection (a), (b), or (c) of this section.”
      3
       18 U.S.C. § 1962(c) provides as follows: “It shall be
unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity or collection
of unlawful debt.”



                                            7
individuals associated in fact although not a legal entity.”                                    18

U.S.C.    §    1961(4).             A    “pattern     of     racketeering”           requires    a

defendant to commit at least two predicate acts of “racketeering

activity.”          18    U.S.C.          §    1961(5).       “Racketeering           activity”

includes,      inter      alia,          any    act   or     threat      involving      murder,

robbery,       extortion,           or    dealing       in    a   controlled          substance

chargeable under state law and punishable by imprisonment for

more than one year.            18 U.S.C. § 1961(1).

              Generally, to be convicted of “conspiracy” to commit a

federal       crime,      a    defendant         must      commit     an    overt       act     in

furtherance of the object of the conspiracy.                              18 U.S.C. § 371.

There    is    no   such      requirement         under      RICO.       United       States    v.

Salinas, 522 U.S. 52, 63 (1997) (“The RICO conspiracy provision,

then, is even more comprehensive than the general conspiracy

offense in § 371.”).                A defendant is guilty of conspiracy under

RICO if he “‘knowingly and willfully agreed that he or some

other    member     of        the       conspiracy      would     commit        at   least     two

racketeering acts.’”                United States v. Mouzone, 687 F.3d 207,

218 (4th Cir. 2012) (quoting United States v. Wilson, 605 F.3d

985, 1018-19 (D.C. Cir. 2010)).

              Naturally,        direct         evidence      of   such     an    agreement      is

often scarce.            United States v. Burgos, 94 F.3d 849, 857 (4th

Cir. 1996) (“By its very nature, a conspiracy is clandestine and

covert, thereby frequently resulting in little direct evidence

                                                  8
of   such   an     agreement.”).       As        such,      conspiracy      is    typically

proven by circumstantial evidence.                 Id. at 857-58.

             Appellants argue that the evidence was insufficient to

establish     an    agreement    to    commit         two    predicate      acts.        This

argument     lacks    merit.         There       is    ample    evidence          that   each

Appellant was a member of MS-13 and agreed to commit at least

two predicate acts.

             Specifically, Appellant Caballero Fernandez attended a

February     29,     2008    MS-13    meeting.              Moreover,       the    evidence

indicates that Appellant Caballero Fernandez was a leader of MS-

13, as the February 29, 2008 meeting he attended was only open

to “runners” or “the older people . . . that have more of a say

so in the clique.”           J.A. 1339. 4         According to an informant who

testified     at    trial,    those    present         at    the   meeting        discussed

taxing other drug dealers, purchasing guns, and organizing the

gang.       And,     Appellant    Caballero           Fernandez       was    photographed

displaying gang signs at the February 29, 2008 meeting.

             Additionally,        Appellant            Caballero        Fernandez,         an

illegal     alien,    illegally      possessed         a    firearm    on    October      29,

2006.     As a result, he was convicted of being an illegal alien




      4
       Citations to the joint appendix (“J.A.”) refer to the
joint appendix filed by the parties in this case.



                                             9
in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)

in the proceedings below.

           Appellant Gonzales participated in an attempt to rob a

Virginia jewelry store with other MS-13 members.               Additionally,

he facilitated the purchase of an SKS rifle for a fellow gang

member.      He was also present at a Charlotte Mall when gang

members had an armed confrontation with a rival gang.

           Appellant      Fernandez-Gradis        murdered   Ulysses   Mayo.

Appellant Fernandez-Gradis was also present at the February 29,

2008 meeting discussed above.          Moreover, he was a leader of MS-

13, as evinced by the fact that he approved a name-change of one

of the MS-13 cliques. 5

           Appellant Julio Lopez was also a leader of MS-13 in

Charlotte.       He came to Charlotte at the direction of Manuel

Ayala, an El Salvador-based MS-13 leader.               He played a large

role in several MS-13 meetings and carried a firearm to at least

one of them.       He was also present at a Mexican restaurant in

Greensboro, North Carolina where Alejandro Umana, another MS-13

member,   shot    and   killed   two   innocent    civilians   for   verbally




     5
       A clique is a local subpart of MS-13, usually affiliated
with a particular geographic area or landmark.          As the
government’s   expert  testified   at  trial, each   clique  is
integrated into the global MS-13 operation.



                                       10
disrespecting MS-13. 6         Appellant Lopez left the restaurant with

Umana and assisted in his escape.               Finally, Appellant Lopez was

a “middle man” in Appellant Villalobos’s drug operation.

                 Appellant Figueroa-Pineda attended a meeting where MS-

13 members discussed killing the witnesses to the Greensboro

restaurant murder.           He was also present at the aforementioned

meetings in February and March of 2008 where he was photographed

flashing MS-13 gang signs.             Appellant Figueroa-Pineda also sold

marijuana from his apartment.

                 Appellant Villalobos was a senior member of MS-13.           He

controlled nightclubs where he sold drugs and taxed others who

did the same.           He also supplied guns to other MS-13 members for

use when they traveled to meetings.              In January 2008, he hosted

an MS-13 meeting in his garage.                 He was also present at the

February 2008 meeting discussed above.

                 Appellants also argue that the government’s reliance

on evidence of attendance at MS-13 meetings to support the RICO

convictions is improper as it is evidence of “mere association”

and, therefore, is not sufficient to establish an agreement to

commit a predicate act.              Mouzone, 687 F.3d at 218 (“We caution

that       the   RICO   conspiracy    statute   does   not   ‘criminalize   mere


       6
       Umana was tried and convicted along with Appellants.
However, his case is not currently before us on appeal.



                                         11
association    with    an     enterprise.’”)          (quoting     Brouwer    v.

Raffensperger, Hughes & Co., 199 F.3d 961, 965 (7th Cir. 2000)).

This argument fails inasmuch as the evidence established far

more than mere association.          As noted above, the evidence was

that at these meetings, members of MS-13 would discuss their

plans to commit various acts of racketeering including murder,

distribution of illegal drugs, and extortion.                     Moreover, the

evidence   established      that   many     Appellants     were    leaders,   as

opposed to mere associates, of MS-13.

                                    B.
                              Anonymous Jury

                                       1.

           On a motion from the government, the district court

empanelled an anonymous jury.             During voir dire, the district

court instructed the members of the jury pool that all of the

security measures which had been taken (mainly the presence of

additional     security      guards,        including     snipers,     at     the

courthouse) were standard in every federal case.                   The district

court did not otherwise specifically comment on juror anonymity.

The district court did, however, ask some demographic questions

of the jury pool (i.e. what type of work they did, approximately

where they lived, etc.).           Additionally, at the conclusion of

voir   dire,   the    district     court      asked     additional    questions

suggested by defense counsel.


                                       12
                                         2.

            Under   28   U.S.C.     §   1863(b)(7),     a   district     court    is

empowered to empanel an anonymous jury whenever “the interests

of justice so require.” 7       Recently, in United States v. Dinkins,

691 F.3d 358 (4th Cir. 2012), we held that an anonymous jury is

appropriate where, “there is strong reason to conclude that the

jury needs protection from interference or harm, or that the

integrity of the jury’s function will be compromised if the jury

does not remain anonymous.”             Id. at 372.      If an anonymous jury

is   warranted,      a    district       court   must       adopt     “reasonable

safeguards” to minimize any resulting prejudice.               Id.

                                         3.

            Appellants properly concede that an anonymous jury was

appropriate here.        Thus, the only issue is whether the district

court    adopted    adequate   safeguards.        Appellants         contend     the

district    court    failed    to   adopt     adequate      safeguards    by     not




     7
         28 U.S.C. § 1863(b)(7) reads as follows:

     Among other things, [the plan for random jury
     selection] shall fix the time when the names drawn
     from the qualified jury wheel shall be disclosed to
     parties and to the public. If the plan permits these
     names to be made public, it may nevertheless permit
     the chief judge of the district court, or such other
     district court judge as the plan may provide, to keep
     these names confidential in any case where the
     interests of justice so require.



                                         13
providing          an    explicit,   non-prejudicial      explanation   for   juror

anonymity.

                 In making this argument, Appellants cite cases from

our       sister    circuits    in   which    various    explanations   for    juror

anonymity were found to be sufficient. 8                  However, none of these

cases indicate that an explicit explanation for juror anonymity

is    a       necessary    safeguard.    Accordingly,      they   are   of   limited

value here.

                 Moreover, Dinkins indicates that the absence of any

specific explanation for juror anonymity minimizes any potential

prejudice.              The district court in Dinkins did not inform the

jury that they were anonymous.                    Likewise, nothing in the juror

questionnaire             in   Dinkins    implied       anonymity.       In     that

circumstance, we held, “the district court’s communications to

the venire members, and ultimately the jurors, properly followed

‘the generally accepted practice for minimizing prejudice which

is to downplay (not accentuate) the significance of the juror

          8
       See United States v. Lawson, 535 F.3d 434, 439-42 (6th
Cir. 2008) (district judge told the jury anonymity was required
by the unusually large number of prospective jurors and
defendants and that anonymity would help ensure a fair trial);
United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir.
1992) (district judge told jury anonymity was designed to avoid
any contact between the jurors and the parties to ensure that
both sides received a fair and impartial trial); United States
v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir. 1985) (district judge
told jurors their anonymity was designed to ward off members of
the press and to protect their privacy).



                                             14
anonymity procedure.’”       Dinkins, 691 F.3d at 378-79 (quoting

United States v. Ochoa-Vasquez, 428 F.3d 1015, 1037 (11th Cir.

2005)).

          Here,    as   in   Dinkins,    the   district    court   properly

downplayed juror anonymity.      As noted, the court simply advised

the jury pool that the security measures which had been taken

were “standard in every case” without specifically mentioning

anonymity.    J.A. 404.      Moreover, aside from juror anonymity,

voir dire was conducted in the usual way.            Based on this, the

government correctly argues that the jury likely did not even

realize that anything unusual had occurred.               Accordingly, the

safeguards adopted by the district court were sufficient.

                                  C.
                   Multiple Conspiracy Instruction

                                   1.

          Appellants allege the district court erred by failing

to instruct the jury that the government’s evidence related to

multiple conspiracies rather than a single conspiracy.             Such an

instruction   is    warranted     when     “the    proof     of    multiple

conspiracies was likely to have confused the jury into imputing

guilt to [the defendant] as a member of one conspiracy because

of the illegal activity of members of the other conspiracy.”

United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001).




                                   15
           Such an instruction was not requested below.                 However,

on appeal, Appellants allege that the failure to give such an

instruction     was    in   error   because,     in    the    absence   of     that

instruction, the evidence established that the Appellants were

members of several small conspiracies as opposed to one large

one.   Accordingly, Appellants contend this likely confused the

jury and caused them to wrongfully impute guilt from members of

one conspiracy to members of another.

                                      2.

           Because      Appellants     failed         to     request    such    an

instruction below, we review for plain error.                  United States v.

Jeffers, 570 F.3d 557, 567 (4th Cir. 2009).                Under “plain error”

review, a court may not correct an alleged error unless the

following three conditions are met: (1) there was an error, (2)

the error is plain, and (3) the error affected a defendant’s

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

(1993);   see   also    Fed.   R.   Crim.   P.   52(b).         If   these   three

conditions are met, an appellate court may correct the error.

Olano, 507 U.S. at 732.         While this is a discretionary matter,

the Supreme Court has held that an appellate court should only

exercise this discretion where the error “seriously affect[s]

the fairness, integrity, or public reputation of the judicial

proceedings.”     Id. (quoting United States v. Young, 470 U.S. 1,

15 (1985)).      The appellant bears the burden of persuasion to

                                      16
show that this occurred.                   United States v. Nicolaou, 180 F.3d

565, 570 (4th Cir. 1999).

                                               3.

               In     making    this       argument,    Appellants       point     to      the

following facts: (1) there were a number of MS-13 cliques in

Charlotte       and    other     cities      throughout      the     region;    (2)     MS-13

members from the various cliques did not know all of the other

members because they operated on opposite sides of town; and (3)

efforts to integrate the various area cliques had failed.

               Appellants           ignore     significant           evidence     to       the

contrary.        Specifically, MS-13 has a global mission: to amass

power and control territory.                   In furtherance of this mission,

MS-13 cliques share weapons and information and members are able

to   move     freely     among      different       cliques.       Moreover,     as     noted

above, MS-13’s organizational structure resembles a franchisor-

franchisee system.             This mode of organization strongly indicates

that     Appellants       were       all     members    of     the    same     conspiracy.

Accordingly, the district court did not err, much less plainly

err,    by    not     giving    a    multiple       conspiracy     instruction        to   the

jury.

                                            D.
                                     Cumulative Error

               Appellants argue that, even if the first three alleged

errors       (i.e.    sufficiency       of    the    evidence      for   the    conspiracy


                                               17
convictions, the anonymous jury, and the absence of a multiple

conspiracy       instruction)            are        individually        harmless,        the

cumulative effects of these errors compel a new trial based upon

the “cumulative error doctrine.”                       We will order a new trial

based    on    the    cumulative         error      doctrine       where   two    or    more

individually         harmless    errors         have     the       combined    effect    of

impacting a defendant’s substantial rights.                            United States v.

Martinez,     277     F.3d   517,    532       (4th    Cir.    2002).      However,      the

cumulative error doctrine is inapplicable here, as we find no

error in the district court’s resolution of any of these three

issues.       Accordingly, Appellants’ cumulative error argument is

without merit.

                                        E.
                             Accessory After the Fact

                                               1.

              Appellant      Caballero         Fernandez       was     convicted    as   an

accessory-after-the-fact            to    the       murder    of    Ulysses   Mayo.       On

April 12, 2008, Appellants Caballero Fernandez and Fernandez-

Gradis were at a party at a neighborhood home.                                Later that

night,     Ruben      Ibarra    arrived          to     the    party.         Ibarra     was

accompanied by his cousin, Ulysses Mayo.                       Both men were wearing

red     clothing,     the    color       of     a     rival    gang.       This    angered

Appellants Fernandez-Gradis and Caballero Fernandez.                             As Ibarra

and Mayo were leaving, Appellants Fernandez-Gradis and Caballero


                                               18
Fernandez followed them to their car.               An eyewitness testified

that it was “kind of dark” at this time.                 J.A. 2143.     In fact,

the record indicates that the murder occurred at approximately

11:00 pm.

            When     Appellants      Caballero    Fernandez    and    Fernandez-

Gradis arrived at the car, Mayo was sitting in the passenger

seat with the window up.            Ibarra was in the driver’s seat with

the   window   down.     The    car’s    engine    was    running.      With    his

firearm     drawn,     Appellant      Fernandez-Gradis       knocked     on    the

passenger-side window.         Mayo tried to roll the window down but

the   window   was    stuck.        Appellant    Fernandez-Gradis      then    shot

through the window.          Appellant Caballero Fernandez was standing

a few feet from Appellant Fernandez-Gradis at this time.                         A

witness,    standing    on    the    driver’s    side,    testified    that    Mayo

gasped and moaned when the shots were fired.

            As soon as the shots were fired, Ibarra drove off.

Appellant Caballero Fernandez then got in his car, instructing

Appellant Fernandez-Gradis to get in with him.                   The two then

attempted to follow Ibarra and Mayo.              Ultimately, Ibarra escaped

and Mayo was taken to a local hospital.                   Mayo was pronounced

dead later that night. Appellant Caballero Fernandez remained

with Appellant Fernandez-Gradis for the rest of the night.                       A

cooperating witness testified Appellant Caballero Fernandez was

distracted and did not speak to anyone.                  A month later, police

                                        19
officers    stopped   a    car    with        six    people    inside,    including

Appellant   Caballero     Fernandez.           Appellant      Caballero   Fernandez

was sitting in the middle of the back seat.                   While searching the

vehicle, the officers found several handguns, including the gun

that Appellant Fernandez-Gradis used to kill Ulysses Mayo.                        On

these facts, Appellant Caballero Fernandez was convicted as an

accessory-after-the-fact         for     the        murder    of   Ulysses    Mayo. 9

Following his conviction, Appellant Caballero Fernandez filed a

motion for judgment of acquittal notwithstanding the verdict.

The district court denied this motion and Appellant Caballero

Fernandez appealed.

                                         2.

            The denial of a motion for judgment of acquittal is

reviewed de novo.         Penniegraft, 641 F.3d at 571; Hickman, 626

F.3d at 762.    When the challenge is based on sufficiency of the

evidence, we view the evidence and all reasonable inferences in

favor of the government.         Penniegraft, 641 F.3d at 571.               We will

sustain the verdict if any rational fact finder would find the




     9
       The controlling statute is 18 U.S.C. § 3.   This statute
reads as follows: “Whoever, knowing that an offense against the
United States has been committed, receives, relieves, comforts
or assists the offender in order to hinder or prevent his
apprehension, trial or punishment, is an accessory after the
fact.”



                                         20
essential elements beyond a reasonable doubt.                         Higgs, 353 F.3d

at 313.

                                            3.

              On    appeal,   Appellant      Caballero        Fernandez      argues    the

evidence      was    insufficient      to    sustain         his    conviction.        His

argument rests on United States v. McCoy, 721 F.2d 473 (4th Cir.

1983).        There, we held that, in order to be convicted as an

accessory-after-the-fact          to    murder,        the     accessory     must     have

“knowledge that [the decedent] was dead or dying at the time of

his decision [to provide assistance].”                   McCoy, 721 F.2d at 475.

Appellant Caballero Fernandez argues there is no evidence that

he knew that Mayo was dead or dying at any point while he was

allegedly assisting Appellant Fernandez-Gradis.                           Specifically,

Appellant Caballero Fernandez argues that, because he drove away

quickly after the shots were fired, he never had the chance to

observe whether Mayo was dead or dying, or if he had even been

shot.     Appellant Caballero Fernandez further argues that there

is no evidence that he learned of Mayo’s death at any point

prior to his arrest.

              The    government   argues         the   facts       were   sufficient    to

permit    a    reasonable     jury     to   infer      the     requisite     knowledge.

However, we are of the view that, even construing the evidence

in a light most favorable to the government, no rational fact-

finder could have found that Appellant Caballero Fernandez knew

                                            21
that Ibarra was dead or dying during the relevant time period.

This is true for several reasons.

               First, Appellant Caballero Fernandez is correct that,

because he sped away quickly after the shots were fired, he did

not have time to observe whether Mayo was dead or dying.                               At

most, the fact that Appellant Caballero Fernandez was standing

next to the car when shots were fired and may have heard the

victim moan permits an inference that he knew that Mayo had been

shot.        It does not follow that Appellant Caballero Fernandez

knew    that    Mayo     was    dead     or   dying.       As    Appellant     Caballero

Fernandez       properly       emphasizes,         not   all    gunshots     are   fatal.

Moreover, the fact that (1) the shooting occurred late at night;

(2)    the    passenger        side    window      was   up;    and   (3)      Appellant

Caballero Fernandez was standing a few feet away at the time of

the shooting further undercuts the government’s argument that

Appellant Caballero Fernandez knew that Mayo was dead or dying.

               Second,     the        government’s       argument     that     Appellant

Caballero Fernandez was “pensive” in the wake of the shooting is

insufficient to establish knowledge.                     Appellee’s Br. 14.          Such

behavior could logically have been reflective of the fact that

shots    were    fired.         Whatever      the    reason,    the   mere    fact   that

Appellant Caballero Fernandez was pensive does not establish,

beyond a reasonable doubt, that he knew that Mayo was dead or

dying.

                                              22
                Finally, the fact that Appellant Caballero Fernandez

was a passenger in a car where police found the murder weapon a

month after Mayo was killed is not sufficient to support his

conviction.             There is no indication that Appellant Caballero

Fernandez owned the car in which the gun was found nor is there

any evidence that the weapon was actually in his possession.

Indeed, there were five other people in the car.                           Even after

drawing all reasonable inferences in favor of the government, we

find the evidence insufficient to sustain Caballero Fernandez’s

conviction for accessory after the fact to murder. 10

                                         F.
                        Possession with Intent to Distribute

                                            1.

                Appellant Figueroa-Pineda was convicted of two counts

of possession of marijuana with intent to distribute. 11                            The

facts        supporting     the    first   count   are   as     follows:    while   in

pursuit       of    a    fleeing   armed   robber,     police    officers    went   to

Appellant          Figueroa-Pineda’s       apartment     on     January    22,   2008.

        10
         Appellant Caballero Fernandez also challenges the
reasonableness of his sentence.    Because we are reversing his
conviction   for  accessory-after-the-fact   and  remanding  for
resentencing, we need not consider his sentencing arguments.
        11
        Possession with intent to distribute is criminalized by
21 U.S.C. § 841(a)(1), which provides: “Except as authorized by
this subchapter, it shall be unlawful for any person knowingly
or intentionally to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance.”


                                            23
After    discovering        that    the    armed        robber     had     departed,    the

officers obtained Appellant Figueroa-Pineda’s consent to search

the apartment.

              During    that       search,    police       officers        uncovered    262

grams    of   marijuana.       They       also     found    baggies        and   a   digital

scale.        At   trial,    Officer       Chuck    Hastings,        one    of   the   lead

federal agents on this case, testified that 262 grams was “a

dealer amount” of marijuana.               J.A. 1886.            Officer Hastings also

testified that he believed Appellant Figueroa-Pineda intended to

sell this marijuana.               Based on this evidence, the jury found

Appellant Figueroa-Pineda guilty of possession with intent to

distribute.

              Appellant      Figueroa-Pineda’s            second     conviction        arose

after he was arrested in his home on June 24, 2008.                                  In the

incident      search,     officers        found     45    grams     of     marijuana    and

digital scales.         The scales were open with marijuana residue on

top.     Based     on   this   evidence,          the     jury    convicted      Appellant

Figueroa-Pineda of a second count of possession with intent to

distribute.

              Following these convictions, Appellant Figueroa-Pineda

filed a motion for judgment of acquittal as to both convictions.

These    motions        were    denied        and        Appellant       Figueroa-Pineda

appealed.



                                             24
                                         2.

            The denial of a motion for judgment of acquittal is

reviewed de novo.       Hickman, 626 F.3d at 762.            When the challenge

is based on sufficiency of the evidence, we view the evidence

and   all   reasonable       inferences       in   favor    of   the    government.

Penniegraft, 641 F.3d at 571.                We will sustain the verdict if

any   rational   fact    finder       would    find   the    essential       elements

beyond a reasonable doubt.          Higgs, 353 F.3d at 313.

                                         3.

            Appellant Figueroa-Pineda argues that the evidence is

insufficient to show that he intended to distribute the drugs on

either count.     In so arguing, he relies exclusively on United

States v. Fountain, 993 F.2d 1136 (4th Cir. 1993).                     In Fountain,

the defendant was caught in an area known for drug trafficking

with zip-tied baggies and 2.4 grams of marijuana.                      The district

court   found    this    to    be     sufficient      evidence    of     intent      to

distribute.      Id.    at    1139.      We    reversed,     holding     that      this

evidence merely created a “suspicion” of intent to distribute.

Id.

            Fountain,    however,       is    distinguishable.          As    to    the

first   count,   Fountain      does    not    apply   because,    in    that    case,

Fountain    possessed        only     2.4     grams    of    marijuana.             The

government’s evidence on the first count of conviction showed

that Appellant Figueroa-Pineda possessed 262 grams of marijuana.

                                         25
According to Officer Hastings, 262 grams is a “dealer amount” of

marijuana.        While there is no bright-line rule as to what

constitutes a “dealer amount,” the significant disparity between

the amount here and the amount in Fountain is impossible to

ignore.

            Second, in Fountain, the only evidence proffered to

establish intent to distribute was: (a) the fact that the drugs

were in baggies and (b) the fact that Fountain was in a drug-

trafficking      area.         Fountain,    993    F.2d   at     1137-39.      Here,

Appellant Figueroa-Pineda was also found with digital scales.

We have held that possession of scales is probative of intent to

distribute.      United States v. Harris, 31 F.3d 153, 157 (4th Cir.

1994).

            As    to     the   second     count,    the   evidence       presents   a

slightly closer call, as it is perhaps plausible that a heavy

marijuana user would purchase 45 grams (less than 3 ounces) for

personal consumption.             However, our task is not to determine

whether   the    jury     could    have    reasonably     reached    the    opposite

conclusion.      Rather, the relevant question is whether there is

sufficient evidence to support the jury’s conclusion.                    There is.

            Specifically,         during    the    June   24,     2008    search    of

Appellant     Figueroa-Pineda’s         apartment,      police     officers    found

digital scales with marijuana residue on top of them.                       As noted

above, this is probative of intent to distribute.                        Harris, 31

                                           26
F.3d   at    157.       Moreover,       at    the    time    of    the    second        search,

Appellant      Figueroa-Pineda          had    been      caught    with      262     grams    of

marijuana      within    the     past    six       months.        These      facts      provide

sufficient support for the jury’s finding.

                                         G.
                                 Firearm Possession

                                              1.

              Appellant        Figueroa-Pineda            was     also       convicted        of

possession of a firearm in furtherance of a drug-trafficking

offense.       This conviction arose from the initial January 2008

search of Appellant Figueroa-Pineda’s apartment mentioned above.

During   the    search,     police       officers        asked     Appellant        Figueroa-

Pineda      whether     there    were        any    weapons       in   the    house.          In

response,      Appellant        Figueroa-Pineda          directed        them      to   a    .22

caliber revolver.         The weapon was hidden under a rug a few feet

from the drugs.          Based on this, Appellant Figueroa-Pineda was

convicted of possession of a firearm in furtherance of a drug

trafficking      offense        under    18        U.S.C.    §    924(c).          Appellant

Figueroa-Pineda challenged this conviction by filing a motion

for judgment of acquittal, which was denied.

                                              2.

             Again,      the     denial       of     a    motion       for    judgment        of

acquittal is reviewed de novo.                 Hickman, 626 F.3d at 762.                    When

the challenge is based on sufficiency of the evidence, we view


                                              27
the    evidence      and    all    reasonable          inferences      in    favor      of    the

government.         Penniegraft, 641 F.3d at 571.                    We will sustain the

verdict if any rational fact finder would find the essential

facts beyond a reasonable doubt.                     Higgs, 353 F.3d at 313.

                                                3.

              On    appeal,       Appellant       Figueroa-Pineda           argues     that    he

did    not    possess       the        weapon     in     furtherance        of    his    drug-

trafficking offenses.              In United States v. Perry, 560 F.3d 246

(4th Cir. 2009), we articulated several non-exclusive factors to

aid the      determination         of     whether      a   firearm     was    possessed        in

furtherance of drug trafficking activity: (1) the type of drug

activity that was being conducted; (2) the accessibility of the

weapon;      (3)    the    type    of    weapon;       (4)    whether    the      weapon      was

stolen;      (5)    whether       the    weapon      was     possessed      illegally;        (6)

whether the weapon was loaded; (7) the proximity of the drugs or

drug profits to the weapon; and (8) the time and circumstances

under which the weapon was found.                     See id. at 254.

              As    applied       in     this    case,       these   factors      support       a

finding      that    Appellant          Figueroa-Pineda         possessed        the    gun    in

furtherance of his drug trafficking offenses.                          Specifically, the

gun was located a few feet from a large quantity of marijuana

(Factor #7).         Additionally, the gun was a .22 caliber revolver

and,    therefore,         was    easily        hidden     in   an    accessible        place.

(Factors      #2    and    #3).         Finally,       Detective     Hastings        testified

                                                28
that, because drug dealers commonly get robbed, they often carry

weapons to protect themselves.                     Accordingly, a reasonable jury

could       conclude    that       Appellant       Figueroa-Pineda   possessed     the

firearm in furtherance of his drug trafficking activities. 12

                                         H.
                               Obstruction of Justice

                                              1.

               When    sentencing      Appellant       Villalobos,    the    district

court applied an obstruction of justice enhancement as defined

in    §      3C1.1     of    the     United        States   Sentencing      Guidelines

(“U.S.S.G.”).         This section provides:

       If (1) the defendant willfully obstructed or impeded,
       or attempted to obstruct or impede, the administration
       of   justice  with   respect   to  the  investigation,
       prosecution, or sentencing of the instant offense of
       conviction, and (2) the obstructive conduct related to
       (A) the defendant's offense of conviction and any
       relevant conduct; or (B) a closely related offense,
       increase the offense level by 2 levels.

U.S.S.G. § 3C1.1 (2012).              Additionally, Application Note 4(A) to

§    3C1.1    provides      that    this   enhancement      should   apply    where   a

defendant is “threatening, intimidating, or otherwise unlawfully


       12
        Appellant Figueroa-Pineda argues that the government has
failed to exclude the possibility that the weapon belonged to
the fleeing armed robber. This argument is of no moment. To be
sure, Appellant Figueroa-Pineda’s explanation is plausible.
However, it does not follow that a reasonable juror must
conclude that the gun did not belong to Appellant Figueroa-
Pineda. Viewing the evidence in the light most favorable to the
government, this argument is inconsequential.



                                              29
influencing     a     co-defendant,    witness,      or    juror,       directly      or

indirectly, or attempting to do so[.]”               U.S.S.G. § 3C1.1 cmt. n.

4(A).

           At the sentencing hearing, Officer Hastings testified

that Appellant Villalobos threatened witness Vela-Garcia during

the trial when Appellant Villalobos grabbed his own throat while

looking in the direction of Vela-Garcia.               Officer Hastings based

his     testimony       on    Vela-Garcia’s          post-trial          statements.

Specifically,       Officer   Hastings    testified       that    during       a    post-

trial   interview,      Vela-Garcia      indicated    that       he    believed      the

gesture made by Appellant Villalobos was designed to make the

point to Vela-Garcia that members of the MS-13 gang would kill

Vela-Garcia if possible.

            Additionally, the district court noted that there had

been a general atmosphere of intimidation during the trial and

that Vela-Garcia had appeared visibly shaken while testifying.

As noted above, MS-13 has a history of visiting violence upon

former members who cooperate with government officials.                              The

district   court      observed   that,    consistent      with        this   practice,

several    of   the    defendants    glared   at   witnesses          during       trial,

ultimately prompting the district court to admonish defendants

to cease such behavior.             Based on all of this evidence, the

district court found that the obstruction of justice enhancement

was warranted.

                                         30
                                         2.

            In    order     to    apply        the     obstruction      of     justice

enhancement, a sentencing court must find, by a preponderance of

the   evidence,     that    the    defendant         “‘willfully      obstructed   or

impeded, or attempted to obstruct or impede, the administration

of justice . . . .’”        United States v. Kiulin, 360 F.3d 456, 460

(4th Cir. 2004) (quoting United States v. Puckett, 61 F.3d 1092,

1095 (4th Cir. 1995)).            We review factual findings made by a

district court in applying the Sentencing Guidelines, including

those facts that serve as a basis for an obstruction of justice

enhancement, for clear error.            Id.

                                         3.

Appellant      Villalobos   argues       that    the    district      court    clearly

erred     in     concluding       that     he        threatened       Vela     Garcia.

Specifically,       Appellant     Villalobos         argues    that    the    district

court improperly relied on the statements of Detective Hastings

because     doing     so    deprived       Appellant          Villalobos      of   the

opportunity to confront his accuser, Vela-Garcia.                     Additionally,

Appellant Villalobos argues that the district court should not

have relied on its own observations of the general atmosphere at




                                         31
trial      as    such      atmosphere    was       not   entirely   attributable       to

Appellant Villalobos.           We disagree. 13

                As   the    government    points         out,   during    sentencing   a

district court may properly consider “any relevant information

before it, including uncorroborated hearsay, provided that the

information has sufficient indicia of reliability to support its

accuracy.”           Powell, 650 F.3d at 392 (quoting United States v.

Wilkinson,       590    F.3d    259,    269    (4th      Cir.   2010)).      Here,   the

district court relied on the statement of a cooperating witness

as relayed by a police officer.                          Additionally, the district

court relied on its own first-hand impressions of the atmosphere

at   trial,      including      its    impression        of   Vela-Garcia’s   demeanor

while testifying.            Taken together, these facts corroborate Vela-

Garcia’s testimony that he was threatened.                          Accordingly, the

district court did not clearly err in concluding that Appellant

Villalobos threatened Vela Garcia and, therefore, the district

court did not err in applying the enhancement here.




      13
        Appellant Villalobos also argues that reliance on Vela-
Garcia’s post-trial interview violates the Due Process Clause
and the Confrontation Clause because Vela-Garcia was not subject
to cross examination during that interview.       However, these
claims fail because a criminal defendant does not enjoy a
constitutional right to cross examination at sentencing.     See
U.S. v. Powell, 650 F.3d 388, 393 (4th Cir.), cert denied, 132
S.Ct. 350 (2011).



                                              32
                                                III.

             For the forgoing reasons, the judgment of the district

court   is   AFFIRMED         in       part,    REVERSED         in    part,   and   REMANDED.

Specifically, the conspiracy to commit racketeering conviction

is    AFFIRMED     as        to    each        Appellant.              Appellant     Caballero

Fernandez’s        conviction            as      an        accessory-after-the-fact               is

REVERSED     and      his    case       REMANDED           to    the   district      court       for

resentencing.            Appellant             Figueroa-Pineda’s           convictions           for

possession of marijuana with intent to distribute (two counts)

and   for    possession           of    a    firearm        in    furtherance      of   a    drug

trafficking offense are AFFIRMED.                          Finally, the district court’s

application      of     an    obstruction             of    justice     enhancement         as   to

Appellant Villalobos is AFFIRMED.

                                                     No. 11-4284 AFFIRMED IN PART,
                                                   REVERSED IN PART, AND REMANDED;
                                            No. 11-4300, No. 11-4319, No. 11-4320,
                                             No. 11-4418, and No. 11-4458 AFFIRMED




                                                 33
TRAXLER, Chief Judge, concurring in part and dissenting in part:

           Viewing the evidence in the light most favorable to

the government, and drawing all inferences in its favor, as we

must, see United States v. Penniegraft, 641 F.3d 566, 571 (4th

Cir. 2011), I would affirm Caballero Fernandez’s conviction for

accessory-after-the-fact to murder.

           Fernandez-Gradis,         with   Caballero   Fernandez    close   at

his side, stood next to the passenger door of Ruben Ibarra’s

vehicle -- close enough for Fernandez-Gradis to knock on the

passenger-side window with gun in hand.              He then shot twice at

point blank range at the passenger, shattering the glass from

the window and hitting the victim once in the chest.                    In my

view, this evidence would permit a jury to reasonably infer that

both Fernandez-Gradis and Caballero Fernandez were close enough

to see that the passenger had been shot in the chest.                  From a

gunshot   wound   to   the   chest    stems   the   logical   and   reasonable

conclusion that the victim was dying.

           Accordingly, I respectfully dissent from the reversal

of Caballero Fernandez’s conviction for accessory-after-the-fact

to the murder of Ulysses Mayo.          I concur in the remainder of the

majority opinion.




                                       34
