Unpreserved § 924(c) “Brandish/Discharge” Instruction Challenges Fail Absent Plain Error When the Charge as a Whole Tracks the Indictment; RICO Continuity Is Presumed Over a Year-Plus Span Despite Quiescence

Case: United States v. Williams (consolidated with No. 24-50769)
Court: Court of Appeals for the Fifth Circuit
Date: June 2, 2026
Publication status: Not designated for publication (5th Cir. R. 47.5).

1. Introduction

These consolidated appeals arose from convictions and life sentences imposed on Atorius Marquis Williams, Demonta Daniels, and Trashawn Lamar Alexander for offenses tied to a criminal organization referred to as “Killers with Aggression” (“KWA”) operating in the “East Temple” area of Temple, Texas.

The operative indictment charged: (i) a RICO conspiracy under 18 U.S.C. § 1962(d) (Count One) predicated on alleged murders and robberies; (ii) a Hobbs Act robbery conspiracy under 18 U.S.C. § 1951(a) (Count Two); multiple substantive Hobbs Act robberies; and multiple firearms counts under 18 U.S.C. § 924(c) alleging “brandish[ing]” (Counts Four and Six) and “discharg[ing]” (Count Eight) firearms during crimes of violence.

On appeal, all three defendants challenged the § 924(c) jury instructions as defective. Alexander separately argued that the evidence was legally insufficient to establish the “pattern of racketeering activity” component implicated by the RICO conspiracy charge.

2. Summary of the Opinion

The Fifth Circuit affirmed across the board.

  • Jury instructions (§ 924(c)): Because defendants failed to object to the challenged instructions before deliberations as required by Fed. R. Crim. P. 30(d), review was for plain error. Considering the charge as a whole, the panel held any lack of clarity did not rise to plain error warranting reversal.
  • Sufficiency (RICO pattern/continuity): Applying deferential de novo review of a preserved sufficiency challenge, the court held a rational jury could find continuity where predicate acts spanned more than a year (September 2017 to June 2019), and “periods of quiescence” do not defeat continuity.

3. Analysis

3.1 Precedents Cited

A. Jurisdiction and appellate posture

  • United States v. Warren, 986 F.3d 557 (5th Cir. 2021): Cited to confirm appellate jurisdiction over final criminal judgments under 28 U.S.C. § 1291 and sentencing review under 18 U.S.C. § 3742; it frames the court’s authority to reach the merits.

B. Preservation, standards of review, and error-correction limits

  • United States v. Fuchs, 467 F.3d 889 (5th Cir. 2006): Supplies the baseline distinction—preserved instruction claims get abuse-of-discretion review; unpreserved claims get plain-error review.
  • United States v. Ricard, 922 F.3d 639 (5th Cir. 2019): Provides the four-part plain-error framework and emphasizes the discretionary, exceptional nature of reversal even when the first three prongs are met.
  • United States v. Green, 47 F.4th 279 (5th Cir. 2022) and United States v. Campbell, 775 F.3d 664 (5th Cir. 2014): Reinforce that raising instruction issues only after trial (e.g., in a Rule 33 motion or at sentencing) does not preserve them; this supports the panel’s move to plain-error review here.
  • United States v. Lamartiniere, 100 F.4th 625 (5th Cir. 2024), cert. denied, 145 S. Ct. 1069 (2025): Clarifies that although instructional error is generally subject to harmless-error analysis when preserved, unobjected-to instruction issues are reviewed for plain error—answering defendants’ attempt to invoke harmless error.

C. Evaluating jury charges “as a whole”

  • United States v. Capistrano, 74 F.4th 756 (5th Cir. 2023): Sets the governing lens—review the full charge and reverse only if there is a “substantial and ineradicable doubt” that the jury was properly guided.
  • Jones v. United States, 527 U.S. 373 (1999): Supplies Supreme Court reinforcement that instructions are not evaluated in isolation but in context.
  • United States v. DeLeon, 484 F. App'x 920 (5th Cir. 2012) (per curiam): Persuasive authority illustrating that less-than-clear instructions may still fall short of plain error when the charge, taken together, does not omit essential elements; the panel analogized this case to the situation at hand.
  • Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006): Cited to explain that unpublished decisions (like DeLeon) are not controlling but can be persuasive.

D. Sufficiency review and briefing constraints

  • United States v. Ollison, 555 F.3d 152 (5th Cir. 2009): Defines de novo review for preserved sufficiency challenges and stresses its practical deference to the verdict.
  • United States v. Cabello, 33 F.4th 281 (5th Cir. 2022): Reinforces the “heavy thumb on the scale” in favor of the verdict during sufficiency review.
  • United States v. Delgado, 401 F.3d 290 (5th Cir. 2005): States the core sufficiency test—whether a rational trier of fact could find essential elements beyond a reasonable doubt, viewing evidence and inferences in the verdict’s favor.
  • United States v. Age, 136 F.4th 193 (5th Cir.), cert. denied, 146 S. Ct. 615 (2025): Used to reject Williams’s and Daniels’s attempted adoption of Alexander’s sufficiency argument under Fed. R. App. P. 28(i), because sufficiency challenges are fact-specific.
  • Rollins v. Home Depot USA, 8 F.4th 393 (5th Cir. 2021) and United States v. Stalnaker, 571 F.3d 428 (5th Cir. 2009): Support findings of forfeiture/waiver for inadequate briefing (e.g., conclusory assertions without record or legal support), which the panel invoked to narrow Alexander’s claims and reject certain “territorial objectives” arguments.

E. RICO elements and the “pattern” requirement (relationship + continuity)

  • United States v. Nieto, 721 F.3d 357 (5th Cir. 2013): Supplies the Fifth Circuit’s articulation of (i) RICO conspiracy (§ 1962(d)) proof—government must prove the defendant “simply conspired to violate § 1962(c), and no more”—and (ii) the four § 1962(c) elements, including participation through a pattern of racketeering activity.
  • Malvino v. Delluniversita, 840 F.3d 223 (5th Cir. 2016) (citing H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989)): Establishes that a “pattern” requires both relatedness of predicate acts and continuity (a threat of continuing activity).
  • D&T Partners, L.L.C. v. Baymark Partners Management, L.L.C., 98 F.4th 198 (5th Cir. 2024) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989)): Used for the continuity timeframe principle—RICO targets long-term unlawful conduct, and the Fifth Circuit “presume[s] that more than a year of racketeering acts constitute a substantial period of time.”
  • Boyle v. United States, 556 U.S. 938 (2009): Supplies a key continuity clarification: RICO does not exempt enterprises that act in spurts “punctuated by periods of quiescence.” The panel used this to neutralize Alexander’s argument that a 17-month lull undermined continuity.

3.2 Legal Reasoning

A. § 924(c) instruction challenge: why the panel found no plain error

The defendants’ theory was that the indictment alleged “brandish[ing]” and (for Alexander) “discharg[ing]” under 18 U.S.C. § 924(c)(1)(A)(ii)–(iii), but the court’s element explanation used “use” and “carry,” and it did not separately define “brandish” or “discharge.” They argued this prevented the jury from making the requisite findings for the higher mandatory minimums and implicated the Sixth Amendment.

The panel’s reasoning moved in three steps:

  1. Preservation failure triggered plain-error review. Invoking Fed. R. Crim. P. 30(d), the court emphasized objections must be made before the jury retires. Raising the issue in post-verdict Rule 29 motions or at sentencing was too late under United States v. Green and United States v. Campbell.
  2. Holistic reading of the charge defeated “plainness.” Applying United States v. Capistrano and Jones v. United States, the panel focused on what the jury was told overall: (i) defendants were on trial only for conduct alleged in the indictment; (ii) the instructions explicitly recited that Counts Four and Six charged “brandish[ing]” and Count Eight charged “discharg[ing]”; and (iii) “active employment” was defined to include “brandishing” or “firing.” Even if the legal “explanation” section used “use or carried,” the charge repeatedly anchored the jury to the indictment’s specific conduct labels.
  3. No discretionary reversal without a clear guidance failure. Under United States v. Ricard, the court declined to exercise plain-error reversal discretion, analogizing to United States v. DeLeon: imperfect clarity is not enough if, in context, the instructions do not omit the offense’s essentials.

Importantly, the court did not hold that omitting definitions of “brandish” or “discharge” is categorically permissible; it held that on this record and under plain-error review, the charge did not leave a substantial, ineradicable doubt that the jury was properly guided.

B. RICO “pattern” continuity: why the evidence was sufficient

Alexander narrowed his challenge to continuity, conceding relatedness of predicate acts. He argued the evidence showed only clustered acts over about four months (late 2017/early 2018) plus one incident in June 2019, with “complete dormancy” in between, and that the objective was territorially “finite.”

The panel’s sufficiency analysis relied on:

  • The governing sufficiency lens. Under United States v. Delgado (and reinforced by United States v. Ollison and United States v. Cabello), the question was whether any rational juror could find continuity beyond a reasonable doubt when viewing all evidence and inferences favorably to the verdict.
  • A year-plus span supports continuity. Citing D&T Partners, L.L.C. v. Baymark Partners Management, L.L.C. (and, ultimately, H.J. Inc. v. Nw. Bell Tel. Co.), the panel invoked the Fifth Circuit presumption that more than a year of racketeering acts constitutes a substantial period. Here, the indictment and testimony concerned multiple robberies and murders between September 2017 and June 2019.
  • Quiescence does not defeat continuity. The court relied on Boyle v. United States to hold that spurts of activity separated by lulls can still meet RICO’s pattern/continuity concept.
  • Territorial “finite scheme” assertions were inadequately developed. The panel treated several of Alexander’s assertions as forfeited for inadequate briefing under Rollins v. Home Depot USA and United States v. Stalnaker, particularly where he offered no record citations or supporting Fifth Circuit authority.

3.3 Impact

A. Trial practice: preservation is outcome-determinative for instruction challenges

The opinion underscores that instruction disputes must be lodged before deliberations (Fed. R. Crim. P. 30(d)). Post-verdict Rule 29 motions or sentencing arguments may be too late, pushing defendants into the steep plain-error terrain of United States v. Ricard. Practically, this increases the premium on:

  • requesting specific § 924(c) “brandish”/“discharge” element language and definitions;
  • objecting to any mismatch between the indictment’s charged manner and the elements instruction;
  • making a clear record of the requested instruction and the basis (statutory text, Sixth Amendment/mandatory-minimum exposure, etc.).

B. § 924(c) instructions: contextual anchoring to the indictment can blunt plain-error claims

The panel treated repeated references to the indictment’s “brandish[ing]”/“discharg[ing]” allegations, combined with “active employment” language encompassing brandishing/firing, as enough—under plain error review—to avoid reversal. Future litigants should expect the Fifth Circuit to examine the entire charge for whether the jury was effectively guided to the charged conduct even if definitional precision is imperfect.

C. RICO continuity: year-plus predicate periods and intermittent activity

The opinion reinforces two continuity-friendly propositions for RICO prosecutions in the Fifth Circuit:

  • Timeframe: “more than a year” of racketeering acts is presumed substantial (D&T Partners, L.L.C. v. Baymark Partners Management, L.L.C.).
  • Tempo: lulls do not defeat continuity (Boyle v. United States).

Defendants challenging RICO continuity will likely need a better-developed record-based argument explaining why the predicates do not amount to (or threaten) continuing activity, rather than relying on “dormancy” labels alone.

D. Appellate briefing: adoption and conclusory argument pitfalls

The panel’s handling of Fed. R. App. P. 28(i) and forfeiture doctrine signals two practical constraints:

  • Co-appellant adoption limits: fact-specific sufficiency challenges generally cannot be adopted wholesale (United States v. Age).
  • Record-and-law supported argumentation: conclusory claims without record citations and authority risk forfeiture (Rollins v. Home Depot USA; United States v. Stalnaker).

4. Complex Concepts Simplified

4.1 Plain error (why timing matters)

“Plain error” review applies when a party did not timely object. It is harder to win than ordinary review because the appellant must show: (1) an error, (2) that is plain (clear/obvious), (3) affecting substantial rights (typically outcome), and (4) serious harm to the fairness/integrity of proceedings (United States v. Ricard). If you object on time, the court instead applies less demanding standards (e.g., abuse of discretion/harmless error).

4.2 § 924(c) charging language: “use/carry” vs. “brandish/discharge”

Section 924(c) criminalizes using/carrying a firearm during and in relation to a crime of violence (and possessing in furtherance). Subsections impose higher mandatory minimums if the firearm is “brandish[ed]” or “discharg[ed].” Here, defendants argued the instructions focused on “use/carry” and did not define “brandish/discharge,” potentially obscuring what the jury needed to find.

4.3 RICO “pattern of racketeering activity”: relatedness + continuity

A “pattern” is not just multiple crimes. The acts must be related and must show continuity—either ongoing threat or a sufficiently long series of related acts (Malvino v. Delluniversita citing H.J. Inc. v. Nw. Bell Tel. Co.). The court treated a year-plus span as substantial and held that pauses in activity do not negate continuity (Boyle v. United States).

4.4 RICO conspiracy (§ 1962(d)) versus substantive RICO (§ 1962(c))

A § 1962(d) conviction focuses on the agreement to violate § 1962(c), not necessarily completion of every underlying act; the government must prove the defendant knew of and agreed to the overall objective (United States v. Nieto).

5. Conclusion

The Fifth Circuit’s decision affirms convictions and life sentences while delivering two practical lessons. First, § 924(c) instruction challenges must be preserved before deliberations; otherwise, contextual references to the indictment and “active employment” language may be enough to defeat reversal under plain-error review. Second, for RICO continuity, predicate acts spanning more than a year may be presumed substantial, and intermittent “quiescence” will not, by itself, defeat the “pattern” requirement.