Mr. Dewberry does not assert the witness testimony was unbelievable on its face. He suggests the witnesses testified out of self-interest because they were offered plea deals, but this is common in criminal prosecutions and does not necessarily render testimony incredible. See United States v. Whitney, 229 F.3d 1296, 1306 (10th Cir.2000) (noting the government can ask a witness about a guilty plea so that a jury can assess the witness's credibility, implying a guilty plea does not automatically make a witness incredible).B. Sufficiency of the Evidence on Count 1 (Crack): Drug Quantity

Unlike a conspiracy, which by its very nature involves an agreement that can be refuted, accomplice liability can arise from merely encouraging the principal. See United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir.2000) (“One may become an accomplice ... by words or gestures of encouragement ....”) (quotation and alteration omitted). Given the relatively minor participation that can trigger accomplice liability, it is unclear what actions an individual may take—if any—to immunize himself from liability for a crime that he previously enabled.

His appellate arguments not having been raised below, our review is only for plain error. See United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir. 2000). To establish plain error, Defendant "must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affect[s] substantial rights. If these three elements are satisfied, then we may exercise discretion to correct the error if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."

" While an error in sentencing may affect the substantial rights of the defendant, reversal is not appropriate under a plain error review unless the error was "clear and obvious." United States v. Whitney, 229 F.3d 1296, 1308-09 (10th Cir. 2000) (holding that the sentencing error did not rise to plain error, reasoning that "[a]lthough, we have held that `basing a sentence on the wrong guideline range constitutes a fundamental error affecting substantial rights within the meaning of Rule 52(b),' thereby satisfying the third prong of the plain error inquiry, [the defendant] cannot establish the second requirement, that, if there was error, it was plain"). Under U.S.S.G. § 4A1.2(c)(1), misdemeanor offenses are counted in calculating criminal history except when the offense is similar to a listed offense, unless the defendant was sentenced to a term of probation of at least one year or a term of imprisonment of at least thirty days, or the prior offense was similar to the instant offense.

"To establish a violation of 42 U.S.C. § 3631(a), the Government must prove beyond a reasonable doubt that the defendant acted with the specific intent to injure, intimidate or interfere with the victim[s] because of [their] race and because of the victim[s'] occupation of [their] home." United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000) (internal quotation marks omitted). Mr. Magleby concedes that Jury Instruction No. 27 correctly states the third element of a § 3631(a) violation: "[t]he defendant engaged in conduct described because of the race or color of one or both Ron Henry or Robyn Henry and because one or both Ron Henry and Robyn Henry were attempting to occupy their home free from racial discrimination."

Further, one need not participate in an important aspect of a crime to be liable as an aider and abetter; participation of "relatively slight moment" is sufficient. See Isaac-Sigala, 448 F.3d at 1213; United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000). In fact, even mere "words or gestures of encouragement" constitute affirmative acts capable of rendering one liable under this theory.

Further, one need not participate in an important aspect of a crime to be liable as an aider and abetter; participation of "relatively slight moment" is sufficient. See Isaac-Sigala, 448 F.3d at 1213; United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000). In fact, even mere "words or gestures of encouragement" constitute affirmative acts capable of rendering one liable under this theory.

"A co-defendant's conviction may not be used as substantive evidence of a defendant's guilt." United States v. Whitney, 229 F.3d 1296, 1304 (10th Cir. 2000) (quoting United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983)). However, such evidence may be used to impeach a testifying co-defendant.

. . . . 'Because of the potential for prejudice, cautionary instructions limiting the jury's use of the guilty plea to permissible purposes are critical.' United States v. Whitney, 229 F.3d 1296, 1304 (10th Cir. 2000) (relying on Baez, 703 F.2d at 455) (additional citations omitted)). Whitney and Baez concerned a petitioner's direct appeal, rather than a habeas matter and addressed a "plain error" review.

Appellant argues that because Hill did not testify at appellant's trial, the references to the guilty plea were inadmissible hearsay. Appellant relies on a line of cases mostly from other jurisdictions in which courts have ruled to the effect that where persons are indicted jointly or separately for an offense or offenses arising out of the same circumstances, evidence that one defendant pled or was found guilty is inadmissible as against the other, citing State v. Felton, 131 N.J.Super. 344, 330 A.2d 23, 27 (App.Div. 1974); United States v. Whitney, 229 F.3d 1296, 1304 (10th Cir. 2000) ("A codefendant's guilty plea may not be used as substantive evidence of a defendant's guilt.") (quotation marks omitted); Allen v. State, 878 A.2d 447, 450 (Del. 2005) ("In this case, co-defendant [] did. not testify at trial. Consequently, there was no justifiable basis for introducing his guilty plea into evidence.