             Vacated by Supreme Court, October 3, 2005

                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-4896



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus

RICK BARTON, SR.,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District Judge.
(CR-02-80)


Submitted:   October 6, 2004                 Decided:   December 3, 2004


Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


A. Benton Chafin, Jr., Lebanon, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Rick A. Mountcastle, Assistant
United States Attorney, R. Lucas Hobbs, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Rick Lee Barton, Sr., appeals his conviction and sentence on

several drug and gun offenses.             For the following reasons, we

affirm Barton’s conviction and sentence.



                                      I.

       Barton was the leader of a drug operation that began in 1997.

The    operation   sold   oxycontin   and    cocaine   in    rural    Tazewell,

Virginia and Newhall, West Virginia.         Because Barton was disabled,

he would direct other persons to drive him to North Carolina to

pick up oxycontin from his drug connection, Michael Billings.

Barton would also send individuals to Bluefield, Virginia to pick

up drugs.     Barton generally sold drugs for cash, but he would

accept guns as well.      Trial testimony showed that Barton accepted

guns in exchange for drugs on at least four occasions and that

Barton obtained guns worth almost $20,000 from one individual.

Barton would then sell the guns to Billings.

       After his arrest, Barton waived his Miranda rights and told

investigators from the Bureau of Alcohol, Tobacco, and Firearms

that he had purchased drugs from Billings for almost fifteen years,

and that he had sold drugs to between 300 and 400 people.

       Barton was indicted by a federal grand jury in the Western

District of Virginia on May 15, 2003 on six counts relating to his

drug   operation:     four   counts   of    possession      of   a   firearm   in


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furtherance of a drug trafficking offense, 18 U.S.C.A. § 924(c),

and one count each of distribution and possession with intent to

distribute    oxycodone   (oxycontin)   and    cocaine,   21    U.S.C.A.    §

841(a)(1), and conspiracy to engage in such a distribution, 21

U.S.C.A. § 846. Barton’s common law wife, Janice Alalusi, was also

indicted on the drug conspiracy and distribution counts.                Barton

pleaded not-guilty to each count, and he was tried by a jury on

August 20 and 21, 2003 in the United States District Court for the

Western District of Virginia.

      On the morning of August 21, 2003, the jury returned a verdict

of guilty on all counts.     Barton requested a poll of the jury, and

one juror, the foreperson, indicated that the verdict read in court

was not her verdict.      The district court then made the following

statement: “Ladies and gentlemen, it appears to me that your

verdict was not unanimous.      Your verdict must be unanimous.           I’m

going to ask you to return to the jury room and continue your

deliberations.”     (J.A. at 325.)      Barton did not object to this

instruction, and the jury returned later in the day, finding Barton

guilty on all counts.        When polled, the foreperson this time

indicated that “guilty” was her verdict.

      On August 28, 2003, Barton moved for a new trial based upon

the   unanimity   instruction   given   by   the   district    court.     The

district court denied this motion on November 10, 2003, at Barton’s

sentencing.    It concluded that Federal Rule of Criminal Procedure


                                    3
31(d) gave it discretion either to declare a mistrial or to return

the jury for further deliberations when a poll revealed that a

verdict was not unanimous.

     The district court then turned to Barton’s sentencing.    The

pre-sentence report (PSR) recommended that Barton receive a four-

level enhancement under § 3B1.1 of the United States Sentencing

Guidelines for being an organizer or leader of criminal activity

that involved five or more participants or was otherwise extensive.

Barton objected to this enhancement, and the district court heard

evidence on the enhancement. The district court concluded that the

enhancement was proper because Barton “exercised decision making

authority in regard to the drug conspiracy.       He participated

directly at the center of it.”   (J.A. at 373.)   In addition, the

district court found that “this drug conspiracy was wide ranging,

both in terms of time and participants, and geographically.” (J.A.

at 374.)   The district court sentenced Barton to 1,170 months in

prison.    The sentence was computed as follows: 210 months for

counts one and two; 60 months for count three to run consecutively;

and 300 months each, to run consecutively, for counts four, five,

and six.   Barton noted a timely appeal and we have jurisdiction

under 28 U.S.C. § 1291.




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                               II.



     On appeal, Barton contends that the district court abused its

discretion in failing to grant his motion for a new trial, erred in

permitting Barton to be convicted on four § 924(c) offenses, and

clearly erred in imposing the leadership enhancement. We find each

of Barton’s arguments to be without merit.



                                 A.

     Barton first argues that the district court’s instruction

after the jury returned without a unanimous verdict coerced the

jury and required the grant of a new trial.   Because Barton failed

to object to the district court’s instruction, we review for plain

error, and not, as Barton contends, for abuse of discretion.     See

Federal Rule of Criminal Procedure 30(d) (stating that “[f]ailure

to object [to a jury instruction] in accordance with this rule

precludes appellate review, except as permitted under Rule 52(b).”)

Because the district court made no error of law, Barton cannot

satisfy the plain error standard.

     Federal Rule of Criminal Procedure 31(d) specifically states

that, if a jury poll reveals the jury was not unanimous, “the court

may direct the jury to deliberate further or may declare a mistrial

and discharge the jury.”   Fed. R. of Crim. P. 31(d).   In this case,

the district court chose to direct the jury to deliberate further.


                                 5
We cannot see how the district court’s compliance with a rule of

criminal procedure amounted to plain error.



                                      B.

     Next, Barton contends that, because he was convicted on only

one substantive drug offense, he cannot be convicted on multiple §

924(c) offenses1 for using a firearm in furtherance of the drug

offense.    We review the district court’s ruling that Barton could

be so convicted and sentenced de novo.               United States v. Carter,

300 F.3d 415, 424 (4th Cir.), cert. denied by McRae v. United

States, 123 S.Ct. 614 (2002). Although caselaw from other circuits

lends Barton some support for this argument, see United States v.

Anderson,    59    F.3d    1323,    1328    (D.C.    Cir.   1995)   (en   banc)

(cataloguing      that    seven    circuits,   the    Second,   Fifth,    Sixth,

Seventh, Ninth, Tenth and Eleventh, have concluded that only one §

924(c)(1) violation can be attached to a single predicate offense),

we have specifically held that multiple § 924(c) convictions are



     1
      Section 924(c) provides that:
     Except to the extent that a greater minimum sentence is
     otherwise provided by this subsection or by any other
     provision of law, any person who, during and in relation
     to any crime of violence or drug trafficking crime . . .
     for which the person may be prosecuted on a court of the
     United States, uses or carries a firearm, or who, in
     furtherance of any such crime, possesses a firearm,
     shall, in addition to the punishment provided for such
     crime of violence or drug trafficking crime [be sentenced
     to a five year minimum term of imprisonment].
18 U.S.C.A. § 924(c)(1)(A).

                                        6
permissible when only one substantive drug offense is charged. See

United States v. Camps, 32 F.3d 102 (4th Cir. 1994).                 As we

explained in Camps, “it is . . . self-evident that a defendant who

has engaged in numerous instances of the precise conduct that

Congress    has   outlawed   has   committed   more   than   one   criminal

offense.”    Id. At 107.

     Barton also argues that there was insufficient evidence to

convict him of one of the § 924(c) counts.        Josh Wilson testified

at trial that he stole a gun from his grandfather and turned it

over to Barton in exchange for cash.           Wilson then immediately

exchanged that money with Barton for oxycontin.         Wilson testified

that he could not have purchased the drugs from Barton without

first selling Barton the gun.      Barton contends that because Wilson

actually sold him the gun for cash, not drugs, the § 924(c)

conviction cannot stand.     We disagree: section 924(c) criminalizes

the possession of a firearm in furtherance of a drug trafficking

offense, and Wilson’s testimony sufficiently showed that, through

a staggered transaction, Barton obtained a firearm in exchange for

drugs and, thus, in furtherance of his drug operation.




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                                        C.

     Finally,      Barton     argues   that    he    does   not    qualify       for   a

leadership enhancement under the Sentencing Guidelines.2 We review

a district court's decision to apply a sentencing adjustment based

on a defendant's role in the offense for clear error.                         United

States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).

     To qualify for a four-level increase under § 3B1.1(a) of the

Sentencing Guidelines, a defendant must have been “an organizer or

leader   of    a   criminal     activity      that    involved      five    or    more

participants       or   was    otherwise      extensive.”         U.S.     Sentencing

Guidelines Manual (U.S.S.G.) § 3B1.1(a) (2003).                     The Sentencing

Commission has indicated that a court should consider seven factors

in determining a defendant's “leadership and organizational role.”

U.S.S.G. § 3B1.1, cmt. n. 4. These include: “[1] the exercise of

decision making authority, [2] the nature of participation in the

commission of the offense, [3] the recruitment of accomplices, [4]

the claimed right to a larger share of the fruits of the crime, [5]

the degree of participation in planning or organizing the offense,



     2
      We note that at no point, before the district court or this
court, has Barton advanced an argument that the leadership
enhancement was imposed in violation of his Sixth Amendment rights.
See generally Blakely v. Washington, 124 S.Ct. 2531, 2536-37 (2004)
(reaffirming that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury,” and explaining that the relevant statutory maximum is the
“maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant)
(emphasis omitted).

                                        8
[6] the nature and scope of the illegal activity, and [7] the

degree of control and authority exercised over others.”       Id.

     On the facts presented here, we cannot say that the district

court clearly erred in imposing the leadership enhancement.          The

evidence showed that Barton recruited and directed      at least five

persons, including his son, Janice Alalusi, Joseph Day, Michael

Dowdy, and Chris Browning, to obtain drugs for Barton to resell.

In addition, the evidence also showed that Barton’s drug conspiracy

was extensive in scope, stretching across three states for at least

five years.   Barton himself confessed to selling drugs to between

300 and 400 people, indicating the existence of a drug conspiracy

that was “otherwise extensive.” U.S. Sentencing Guidelines Manual

(U.S.S.G.) § 3B1.1(a) (2003). Moreover, as a Government witness

explained at sentencing, Barton was the “common denominator” in

most drug sales in the area, and the trial evidence revealed Barton

to be the leader or organizer of this drug conspiracy.        (J.A. at

346.)   We have previously held that the leadership enhancement is

proper where an individual is the chief supplier of drugs to a

locality.   See United States v. Carter, 300 F.3d at 426 (affirming

enhancement   where   evidence   showed   the   defendants   were   “the

principal suppliers of crack cocaine to the street dealers in the

housing project.”)




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                             III.

     For the foregoing reasons, we affirm Rick Lee Barton Sr.’s

conviction and sentence.

                                                       AFFIRMED




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