NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                    ____________

               Nos. 11-2400 and 11-2401
                    _____________

           UNITED STATES OF AMERICA

                          v.

                   GELEAN MARK,

                                      Appellant in 11-2400

          UNITED STATES OF AMERICA

                          v.

           BERTRAND LEON BOODOO,

                                     Appellant in 11-2401


On Appeal from the District Court of the Virgin Islands
                (Division of St. Thomas)
(D. C. Nos. 3-05-cr-00076-001and 03-05-cr-00076-011)
      District Judge: Honorable Curtis V. Gomez


      Submitted under Third Circuit LAR 34.1(a)
                on December 7, 2012

Before: SMITH, HARDIMAN and ROTH, Circuit Judges

            (Opinion filed: August 6, 2013)



                    O P I N I ON
ROTH, Circuit Judge:

       In this consolidated appeal, Bertrand Boodoo appeals his conviction for

conspiracy to possess with intent to distribute a controlled substance, and Gelean Mark

appeals his convictions for conspiracy to possess with intent to distribute a controlled

substance and conspiracy to import with intent to distribute a controlled substance. Both

also appeal their sentences. We write only for the parties and assume their familiarity

with the factual and procedural history of this case. For the reasons that follow, we will

affirm both Boodoo’s and Mark’s convictions, but we will vacate their sentences and

remand for re-sentencing.

I.     Appeal of Convictions 1

                                             A.

       Boodoo and Mark both argue that there was insufficient evidence for a jury to

convict them of conspiring to possess with intent to distribute a controlled substance, and

Mark further argues there was insufficient evidence to convict him of conspiring to

import with intent to distribute a controlled substance. “We apply a particularly

deferential standard of review when deciding whether a jury verdict rests on legally

sufficient evidence,” because “‘[i]t is not for us to weigh the evidence or to determine the

credibility of the witnesses.’” United States v. Dent, 

, 187 (3d Cir. 1998)

(quoting United States v. Voigt, 

, 1080 (3d Cir. 1996)). We view the

evidence in the light most favorable to the government, and we “will sustain the verdict if


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
                                             2
‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” 

F.3d at 1080). “Thus, ‘a claim of

insufficiency of the evidence places a very heavy burden on an appellant.’” 

v. Gonzalez, 

, 1132 (3d Cir. 1990)).

       To establish a charge of conspiracy, the government must show “(1) a unity of

purpose between the alleged conspirators; (2) an intent to achieve a common goal; and

(3) an agreement to work together toward that goal.” United States v. Pressler, 

, 147 (3d Cir. 2001) (internal quotation marks omitted). “These elements incorporate

a requirement that [the defendant] had knowledge of the specific illegal objective

contemplated by the particular conspiracy,” namely, possessing with intent to distribute a

controlled substance, and, in Mark’s case, also importing with intent to distribute a

controlled substance. United States v. Boria, 

, 481 (3d Cir. 2010).

       “The existence of a conspiracy can be inferred from evidence of related facts and

circumstances from which it appears as a reasonable and logical inference, that the

activities of the participants … could not have been carried on except as the result of a

preconceived scheme or common understanding.” United States v. Brodie, 

,

134 (3d Cir. 2005) (quoting United States v. Smith, 

, 477 (3d Cir. 2002))

(ellipsis in the original) (alteration and internal quotation marks omitted). While “guilt

must remain personal and individual,” 

v. Samuels, 

, 575 (3d Cir. 1984), the government’s evidence must be considered “in conjunction

and as a whole.” 

1 charged Mark, Boodoo, and two other defendants, Allen Dinzey and

Vernon Fagan, with conspiracy to possess with intent to distribute a controlled substance.

At trial, the government presented intercepted telephone calls involving Boodoo, Mark,

and the other defendants; video recordings capturing Boodoo engaging in hand-to-hand

drug transactions; and testimony from drug purchasers, a confidential informant, and

DEA agents about how the conspiracy operated. The jury found the evidence persuasive

beyond a reasonable doubt in reaching guilty verdicts. Both Mark and Boodoo argue that

the evidence demonstrates – at most – a buyer-seller relationship. But the circumstantial

evidence implicating Mark and Boodoo could support the logical inference that each

agreed to pool his efforts with Dinzey and Fagan toward the common goal of distributing

drugs. Viewing the evidence in the light most favorable to the government, we must

conclude that a rational trier of fact could have found the evidence sufficient to establish

each element of the conspiracy charged in count 1 beyond a reasonable doubt with

respect to Mark and Boodoo. We will thus affirm both convictions for conspiracy to

possess with intent to distribute a controlled substance.

                                             2.

       Count 18 charged Mark, Dinzey, and Fagan with conspiracy to import with intent

to distribute a controlled substance into the United States. At trial, a government witness,

Glenson Isaac, testified that he and Mark traveled from St. Thomas, U.S. Virgin Islands,

to Tortola, British Virgin Islands, and that Mark told him they “would be riding back

dirty.” Isaac testified that on the return voyage Mark had a black trash bag containing

cocaine, which Mark held over the railing of the boat while they sailed at night with no

                                              4
lights on. Mark told Isaac to look out for law enforcement or any other boats and that he

would lose or get rid of the bag if law enforcement approached the boat. Isaac further

testified that he heard Mark call Fagan from the boat to coordinate the hand-off of the

drugs and saw Mark give the black bag to Fagan when the boat arrived in St. Thomas.

The jury again found this evidence persuasive, and we must conclude that, viewed in the

light most favorable to the government, a rational juror could have found the evidence

sufficient to convict on count 18. We will thus affirm Mark’s conviction for conspiracy

to import with intent to distribute a controlled substance into the United States. 2

                                              B.

       Mark also challenges the District Court’s refusal to declare a mistrial after DEA

Agent Michael Goldfinger testified on re-direct that the DEA paid a confidential

informant “relocation expenses” because “there was a threat determined against [the

informant’s] life.” Mark’s counsel moved for a mistrial at that time, and the District

Court denied the motion the next day.

       “We review the denial of a motion for a mistrial based on a witness’s allegedly

prejudicial comments for an abuse of discretion.” United States v. Lore, 

,

207 (3d Cir. 2005). Our primary concern is whether the statement was so prejudicial that

the defendant was deprived of the fundamental right to a fair trial. See United States v.

Xavier, 

, 1285 (3d Cir. 1993). Three factors guide our review of Agent

Goldfinger’s statement: “(1) whether [the] remarks were pronounced and persistent,

2
 Mark asserts that he filed a timely Rule 29 motion but that the District Court failed to
rule on it. Because there was sufficient evidence to convict Mark, any error in this regard
was harmless. United States v. Powell, 

, 891 (10th Cir. 1992).
                                              5
creating a likelihood they would mislead and prejudice the jury; (2) the strength of the

other evidence; and (3) curative action taken by the district court.” 

.

       Based on our review of the events at trial, we must conclude that the District Court

did not abuse its discretion in denying Mark’s motion for a mistrial. Goldfinger’s

statement was an isolated comment during his testimony, which lasted nearly a full day,

during a week-long trial. This evidence – that the confidential informant feared for his

life – was not brought up during the confidential informant’s testimony or during the

government’s closing arguments. Additionally, the statement did not refer specifically to

Mark, or any of the five other defendants on trial, and the government did not allege that

any of the defendants threatened the confidential informant. Moreover, Goldfinger’s

statement was elicited to rebut the defense argument, made through a series of cross-

examination questions about monies given to the confidential informant, that the

government was buying the confidential informant’s cooperation and testimony. This

evidence thus served a proper purpose. See United States v. Falkenberry, 

,

242-43 (3d Cir. 1982). Second, as discussed above, there was sufficient evidence to

convict Mark on both conspiracy counts. Finally, the District Court took curative actions

by immediately cutting off this line of questioning and confirming that the government

would not further explore this issue. We cannot conclude that Goldfinger’s statement

denied Mark a fair trial. We will thus affirm Mark’s convictions.

II.    Appeal of Sentences 3


3
 This Court has jurisdiction to review the sentences imposed by the District Court
pursuant to 18 U.S.C. § 3742(a).
                                             6
                                            A.

       Boodoo argues that his sentence should be vacated because the District Court

erred by applying the mandatory minimum sentence requirements from the Anti-Drug

Abuse Act of 1986 rather than those in the Fair Sentencing Act of 2010. This issue is a

purely legal one over which we exercise plenary review. United States v. Dixon, 

, 198 (3d Cir. 2011). The District Court’s application of the Anti-Drug Abuse

Act of 1986 was indeed error. “[T]he [Fair Sentencing Act] requires application of the

new mandatory minimum sentencing provisions to all defendants sentenced on or after

August 3, 2010, regardless of when the offense conduct occurred.” 

; see Dorsey v. United States, --- U.S. ----, 

, 2335 (2012).

       Boodoo was sentenced on May 12, 2011, to 121 months of incarceration. He

faced a Guidelines Range of 97 to 121 months for his participation in the conspiracy,

which was determined to involve 225.18 grams of crack cocaine. Under the Anti-Drug

Abuse Act of 1986, this amount subjected him to a ten-year mandatory minimum

sentence, but under the Fair Sentencing Act, it triggers only a five-year mandatory

minimum. See 

. We will thus vacate Boodoo’s sentence and

remand for resentencing under the Fair Sentencing Act. 

  Boodoo also asserts that none of the drugs attributed to the conspiracy should be
attributed to him. A drug conspirator may be held responsible for the amounts distributed
by his coconspirators that are in furtherance of the jointly-undertaken activity, within the
scope of the defendant’s agreement, and reasonably foreseeable in connection with the
agreed-upon criminal activity. United States v. Collado, 

, 991-92 (3d Cir.
1992); see USSG § 1B1.3, app. n. 1. The District Court did not err by attributing to
Boodoo the amount of cocaine base attributed to the conspiracy.
                                             7
       Mark argues that his sentence should be vacated because of errors relating to his

Presentence Investigation Report (PSR), the applicable mandatory minimum sentence,

and his criminal history category. Because Mark had not had an opportunity to read his

PSR prior to sentencing, we will vacate his sentence and remand for resentencing and

need not reach his other arguments.

       Federal Rule of Criminal Procedure 32(i)(1)(A) requires district courts to verify at

sentencing that the defendant and the defendant’s attorney have read and discussed the

PSR. Fed. R. Crim. P. 32(i)(1)(A). 5 Mark’s counsel acknowledged having reviewed the

PSR, in response to the District Court’s question at sentencing, but Mark stated during his

allocution that “I haven’t seen the Presentence Report so I don’t know what it says.”

Because Mark brought this issue to the District Court’s attention, it was properly

preserved, and we exercise plenary review over the District Court’s compliance with

Rule 32(i)(1)(A). See United States v. Cherry, 

, 1013 (3d Cir. 1993); United

States v. Grajeda, 

, 1188 (9th Cir. 2009) (“We review de novo the district

court’s compliance with Rule 32 of the Federal Rules of Criminal Procedure.”).

       Rule 32(i)(1)(A) does not impose an “absolute requirement that the court

personally ask the defendant” if he has read the PSR. United States v. Mays, 

,

80 (3d Cir. 1986). Rather, this Court has “allowed for a more functional fulfillment of

the rule, requiring only that the district court ‘somehow determine that the defendant has

had this opportunity.’” 

(3d Cir. 2000) (quoting Mays, 

 We find it surprising that the government failed to address this argument in its 28-page
brief.
                                             8
at 80). We agree that the District Court failed to comply with Rule 32(i)(1)(A). Not only

was the District Court’s inquiry of Mark’s counsel insufficient to meet the requirements

of Rule 32(i)(1)(A), see 

(finding that merely asking the

defendant’s attorney if the attorney had any objections to the PSR constituted error), but

Mark also clearly stated that he had not had the opportunity to read the PSR. As a result,

we will vacate Mark’s sentence and remand for resentencing. United States v. Osborne,

, 911 (6th Cir. 2002) (“When a district court does not comply with [Rule

32(i)(1)(A)], the defendant’s sentence must be vacated and the case must be remanded for

re-sentencing.”).

       Mark also argues that the District Court erred by failing to rule on his objections to

the PSR, not applying the Fair Sentencing Act, and incorrectly calculating his criminal

history category. Because we will vacate Mark’s sentence and remand for re-sentencing,

we need not decide whether the District Court also erred in these respects. However, in

further sentencing, the District Court should keep in mind the Fair Sentencing Act, which

applies to all defendants sentenced after August 3, 2010, 

, and this

Court’s cases interpreting “prior sentence” under § 4A1.2(a) of the Sentencing

Guidelines. We also remind the District Court that “[i]n all cases . . . the district court

must ‘set forth enough to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.’” United States v. Merced, 

, 215-16 (3d Cir. 2010) (quoting Rita

v. United States, 

, 356 (2007)). District courts must provide a sufficient

basis for this Court to review any sentence that has been imposed.

                                              9
III.   Conclusion

       For the foregoing reasons, we will affirm Boodoo’s judgment of conviction but

vacate his sentence and remand for resentencing in accordance with the Fair Sentencing

Act. See United States v. Salinas-Cortez, 

, 698 (3d Cir. 2011). We will also

affirm Mark’s judgment of conviction but vacate his sentence and remand for

resentencing.




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