United States v. Gaston , 382 F. App'x 297 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4644
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL DEVON GASTON,
Defendant - Appellant.
No. 07-4669
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD ANTHONY PRATT,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen,
Senior District Judge. (1:06-cr-00310-WLO-1; 1:06-cr-00310-WLO-
2)
Submitted: May 21, 2010 Decided: June 10, 2010
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina; Stanford K.
Clontz, Asheville, North Carolina, for Appellants. Anna Mills
Wagoner, United States Attorney, Randall Stuart Galyon, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Darryl Gaston and Gerald Pratt were convicted by a
jury of conspiracy to distribute crack cocaine, and distribution
of crack cocaine (Gaston, six counts; Pratt, two counts), 21
U.S.C. §§ 841(a), 846 (2006). Gaston was also found guilty of
possession of a stolen firearm, 18 U.S.C. § 922(j) (2006).
Gaston was sentenced to a total term of 235 months imprisonment;
Pratt to 240 months. Their attorneys have filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), in
which they assert that there are no meritorious issues for
appeal but question, first, whether the district court erred in
denying the Appellants’ motion for judgment of acquittal, Fed.
R. Crim. P. 29, and, second, whether the court erred, with
respect to Gaston, in applying a two-level enhancement for
possession of a firearm, U.S. Sentencing Guidelines Manual
(USSG) § 2D1.1(b)(1) (2006).
Gaston has filed a supplemental pro se brief in which
he asserts that he is entitled to resentencing in accordance
with Amendments 706 and 709 to the sentencing guidelines and
that the district court erred in admitting the transcript of
audio tape recordings that were inaudible. Pratt has also filed
a pro se supplemental brief in which he argues that the evidence
was insufficient to support his conviction. Finding no error,
we affirm.
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We review de novo the district court’s denial of a
Rule 29 motion for judgment of acquittal. United States v.
Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003). “[A]ppellate
reversal on grounds of insufficient evidence . . . will be
confined to cases where the prosecution's failure is clear.”
Burks v. United States, 437 U.S. 1, 17 (1978). “In determining
whether the evidence was sufficient to support a conviction, a
reviewing court must determine whether ‘any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.’” United States v. Madrigal-Valadez, 561
F.3d 370, 374 (4th Cir. 2009) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Further, this court does not review the
credibility of witnesses and assumes the jury resolved all
contradictions in the testimony in favor of the Government.
United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).
To establish that Gaston and Pratt violated § 846, the
Government was required to establish that: (i) an agreement to
distribute crack cocaine existed between Gaston and Pratt; (ii)
Gaston and Pratt knew of the conspiracy; and (iii) Gaston and
Pratt both knowingly and voluntarily became a part of the
conspiracy. United States v. Yearwood, 518 F.3d 220, 225-26
(4th Cir. 2008); see also United States v. Clark, 928 F.2d 639,
641-42 (4th Cir. 1991) (“The essential elements of a § 846
conspiracy are (1) an agreement between two or more persons to
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undertake conduct that would violate the laws of the United
States relating to controlled substances and (2) the defendant’s
willful joinder in that agreement.”). In order to prove Gaston
possessed a stolen firearm in violation of 18 U.S.C. § 922(j),
the Government had to demonstrate that (1) Gaston possessed the
stolen firearm; (2) the firearm had moved in interstate
commerce; and (3) Gaston knew or had reason to know that the
firearm was stolen. See United States v. Moye, 454 F.3d 390,
395 (4th Cir. 2006).
At trial, Sylvester Island, a confidential informant,
testified that he made the following purchases over a seven-
month period from Gaston and/or Pratt: (1) on October 6, 2005, a
total of seven firearms, plus ammunition, from Gaston; later
that same day, two ounces of crack cocaine from Gaston and
Pratt; (2) on October 19, 2005, two ounces of crack cocaine from
Gaston and two other individuals; (3) on November 1, 2005, a .38
caliber revolver from Gaston; later that same day an additional
two ounces of crack cocaine from both Gaston and Pratt; (4) on
December 2, 2005, two more ounces of crack cocaine from both
Gaston and Pratt; (5) on December 8, two ounces of crack cocaine
from Gaston; and (6) on April 22, 2006, two ounces of crack
cocaine from Gaston. At each of the controlled purchases where
both Gaston and Pratt were present, they arrived together in the
same vehicle and shared in the proceeds. According to Island,
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the guns and crack purchases were made at different times at
Gaston’s insistence because he (Gaston) said he “don’t like to
do guns and dope at the same time.” Island testified that
Gaston admitted to him that the first set of firearms he
(Island) purchased from Gaston were stolen and that Gaston
stated that he “needed to get them out of his possession.”
Another Government witness, Jeremy Fisher, testified that his
residence was burglarized sometime in July 2005 and among the
items stolen were seven firearms. Fisher identified each of the
seven firearms purchased from Gaston as the ones that were
stolen from him. We find this evidence sufficient to support
the jury’s verdict with respect to all counts of conviction.
Gaston’s advisory guidelines range was determined to
be 235-293 months imprisonment, based on a total offense level
of 36 and a criminal history category III. The court sentenced
him to 235 months. Pratt’s guidelines range was 151-188 months
imprisonment; however, he was subject to a mandatory minimum
sentence of 240 months based on a prior felony drug conviction,
21 U.S.C. § 841(b)(1)(A) (2006).
Gaston first argues, as he did at sentencing, that he
should not have received the two-level firearms enhancement
because the government failed to show the necessary relationship
between the firearms and the drug trafficking activity.
Specifically, Gaston claims that, because the guns and drugs
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were never sold together--or seen together by any of the
government’s witnesses--that the enhancement was improperly
applied.
The guidelines provide that a district court is to
increase a defendant’s base offense level two levels “[i]f a
dangerous weapon (including a firearm) was possessed.” USSG
§ 2D1.1(b)(1). “The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1(b)(1), cmt. n.3
(emphasis added). The enhancement is proper when “the weapon
was possessed in connection with drug activity that was part of
the same course of conduct or common scheme as the offense of
conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th
Cir. 2010) (internal quotation marks omitted), and even in the
absence of proof of “precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun,” United States v. Johnson, 943
F.2d 383, 386 (4th Cir. 1991) (per curiam). Whether the
district court properly applied the USSG § 2D1.1(b)(1)
enhancement is reviewed for clear error. United States v.
McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
At sentencing, the district court heard testimony from
Special Agent Robert Padgett describing his participation, along
with Island, in the purchase of guns and crack cocaine from
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Gaston on several occasions but never at the same time.
According to Padgett this was because Gaston said that “if you
sold drugs and guns together, that the sentencing would be a lot
worse and the feds would be interested.” Padgett testified
that, on one occasion (November 1, 2005), he went to Gaston’s
residence to purchase a firearm and that they discussed a
purchase of two additional ounces of crack cocaine to take place
later in the day at another residence. We agree with the
district court’s conclusion that there was a continuing pattern
of guns and drug trafficking and, therefore, it was not clearly
improbable that the guns were connected with Gaston’s drug
activity. Accordingly, we find that the court did not clearly
err in applying the enhancement.
In his pro se supplemental brief, Gaston argues that
he should be given the benefit of Amendment 709 to the
sentencing guidelines, which alters the computation of criminal
history points for certain misdemeanors and petty offenses. See
USSG App. C Amend. 709.
Under 18 U.S.C. § 3553(a)(4), the district court must,
with certain exceptions not applicable here, apply the guideline
that is in effect on the date the defendant is sentenced.
Gaston was sentenced in May 2007. Applying the guidelines in
effect on the date of Gaston’s sentencing, the district court
properly counted his criminal history points. Amendment 709 did
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not become effective until November 1, 2007, and does not apply
retroactively. See USSG § 1B1.10(c) (Amendment 709 is not
listed); see United States v. Dunphy, 551 F.3d 247, 249 n.2 (4th
Cir.) (noting than an amendment to the Guidelines may be applied
retroactively only when the amendment is expressly listed in
USSG § 1B1.10(c)), cert. denied, 126 S. Ct. 2401 (2009).
Accordingly, the district court properly counted
Gaston’s prior convictions in computing his criminal history
score.
Gaston also asserts that he is entitled to
resentencing either on the basis of Amendment 706 or the Supreme
Court’s decision in Kimbrough v. United States, 552 U.S. 85(2007), which held that the district court could deviate from
the Guidelines’ 100-to-1 crack cocaine to powder cocaine ratio
when imposing sentence. Because he did not preserve this claim,
our review is for plain error. See Fed. R. Crim. P. 52(b);
United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). This
court concluded in White that imposing a sentence under the
mandatory guidelines scheme was error that was plain, but that
prejudice from such an error would not be presumed. 405 F.3d at
217, 221-22. Instead, we held that the defendant bears the
burden of showing that the error “affected the outcome of the
district court proceeding.” Id. at 223. This court relied on
the absence of any statement by the sentencing court “that it
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wished to sentence White below the guideline range but that the
guidelines prevented it from doing so,” to find that there was
“no nonspeculative basis” for finding prejudice. Thus, this
court affirmed White’s sentence. Id. at 223-24.
Similarly, in this case, even assuming that the
district court erroneously believed that it could not deviate
from the guidelines range based on the crack/powder cocaine
sentencing disparity, the record does not reveal that, had the
court recognized its authority, it would have chosen to exercise
it. Accordingly, we find that Gaston failed to establish an
error that affected his substantial rights.
Any claim Gaston has for resentencing pursuant to
Amendment 706 must be addressed by the district court by way of
a motion filed pursuant to 18 U.S.C. § 3582 (2006). See United
States v. Brewer, 520 F.3d 367 (4th Cir. 2008) (noting that it
is “for the district court to first assess whether and to what
extent [a defendant’s] sentence may be . . . affected [by
Amendment 706], and the [district] court is entitled to address
this issue either sua sponte or in response to a motion by [the
defendant] or the Bureau of Prisons.” Id. at 373.
Finally, Gaston challenges certain tape recordings
that were played for the jury and the accuracy of the
transcripts of those recordings. We have reviewed the record
and find no error.
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In accordance with Anders, we have reviewed the record
in these cases and have found no meritorious issues for appeal.
We deny as moot Gaston’s motion to file a pro se supplemental
brief as we have reviewed the claims raised in all supplemental
pro se briefs filed by the Appellants and have found them to be
without merit. We therefore affirm Gaston’s and Pratt’s
convictions and sentences. This court requires that counsel
inform Gaston and Pratt, in writing, of the right to petition
the Supreme Court of the United States for further review. We
deny counsel’s motions to withdraw and the Appellants’ motions
to relieve and appoint substitute counsel. If either Appellant
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move again
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
both Gaston and Pratt.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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