PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4475

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KENDALL DEMARKO WYSINGER, a/k/a Demarko, a/k/a D,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cr-00022-EKD-JCH-1)

Argued: December 8, 2021 Decided: March 30, 2023

Before HARRIS and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Senior Judge Keenan joined.

ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Daniel P. Bubar, Acting United States Attorney, Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 2 of 20

RUSHING, Circuit Judge:

Defendant Kendall Demarko Wysinger and his partner Leslee Garza conspired to

ensnare drug-addicted women in debt-cycle sex trafficking. Wysinger would give the

women heroin and cocaine they could not afford and then insist they repay their debt by

prostituting themselves for his benefit throughout Virginia, West Virginia, and Maryland.

On March 23, 2016, Wysinger provided fentanyl to two women who overdosed. Wysinger

left the women for dead and destroyed the evidence. One of the women died, but the other

survived and testified against him.

A jury convicted Wysinger of (1) conspiracy to commit sex-trafficking, in violation

of 18 U.S.C. §§ 1591(a)(1) and 1594(c); (2) interstate transportation for the purpose of

prostitution, in violation of 18 U.S.C. § 2421; (3) distribution of, and possession with intent

to distribute, fentanyl, the use of which resulted in death, in violation of 21 U.S.C. § 841,

et seq.; and (4) distribution of, and possession with intent to distribute, fentanyl, the use of

which resulted in serious bodily injury, in violation of 21 U.S.C. § 841, et seq. 1 At

sentencing, the district court found that Wysinger had a prior conviction for a felony drug

offense, triggering a mandatory life sentence on Counts 3 and 4 pursuant to 21 U.S.C.

§ 841(b)(1)(C). The court sentenced Wysinger to life in prison on Counts 1, 3, and 4, and

120 months’ imprisonment on Count 2, all to be served concurrently.

Wysinger now appeals his convictions and sentence. We affirm in full.

1 The jury also convicted Wysinger of obstruction of justice, in violation of 18 U.S.C. § 1512(c)(1), but the district court set that conviction aside on Wysinger’s motion. The jury acquitted Wysinger on a second obstruction charge. 2 USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 3 of 20

I.

Wysinger first challenges his Count 1 conviction for conspiracy to violate 18 U.S.C.

§ 1591, which criminalizes sex trafficking by force, fraud, or coercion. He argues that the

evidence was insufficient to support his conviction and that the district court instructed the

jury incorrectly. We take each argument