                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-4628



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


TRADON MARQUEZ DRAYTON,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:04-cr-00009-JPJ)


Argued:   February 1, 2008                 Decided:   March 4, 2008


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Bettye Stephanie Commander, Charlottesville, Virginia, for
Appellant.   Anthony Paul Giorno, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.     ON BRIEF: John L.
Brownlee, United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A jury convicted Tradon Drayton of conspiring to possess with

intent to distribute five grams or more of cocaine base (“crack

cocaine”), in violation of 21 U.S.C. § 846 (2000) (“Count Five”);

using and carrying a firearm during and in relation to, and

possessing a firearm in furtherance of, a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1) (2000) (“Count Seven”);

violating § 924(c) while causing the death of a person through the

use of a firearm, in violation of 18 U.S.C. § 924(j) (2000) (“Count

Eight”); possessing a firearm after having been convicted of a

felony, in violation of 18 U.S.C. § 922(g)(1) (2000) (“Count

Nine”); and firing a weapon into a group of two or more persons in

furtherance of a major drug offense, in violation of 18 U.S.C.

§ 36(b)(1) (2000) (“Count Ten”).        The district court sentenced

Drayton to concurrent 188-month sentences on Counts Five, Nine, and

Ten.    Additionally, the court sentenced Drayton to a consecutive

60-month sentence on Count Seven, see 18 U.S.C. § 924(c)(1)(A)(I)

(2000), and a consecutive 300-month sentence on Count Eight, see 18

U.S.C. § 924(c)(1)(C)(I) (2000).        Drayton appeals.   Finding no

error, we affirm.



                                  I.

       Although Drayton’s convictions include events reaching back to

May 1999, his current claims focus exclusively on the incidents of


                                - 2 -
July 16, 1999, so we recount only those facts.       On that date,

Drayton and several associates visited an apartment complex on

Poplar Knob Road in Galax, Virginia, because they had earlier heard

that Drayton’s pet snake had met an untimely demise at the hands of

Billy King, the boyfriend of Poplar Knob resident Monica Beamer.

At Beamer’s apartment, a noisy confrontation between Drayton and

King ensued, during which a rival crack cocaine dealer known as

“Big D” entered Beamer’s apartment brandishing a gun and declaring

to all concerned, “Y’all messed up my money.”    After an associate

of Big D’s named James Thornton defused the situation, Drayton and

his associates drove away from the apartment complex, only to turn

around on Drayton’s command a short distance away.   Drayton exited

the vehicle and waited by the roadside in order to ambush Big D’s

car, which appeared several minutes later.      After Drayton fired

several rounds from the side of the road, Big D emerged from the

car, exchanging gunfire with Drayton and inadvertently shooting

Thornton, the car’s driver, in the back of the head.    Drayton and

Big D both fled, and when police arrived at the scene, only

Thornton’s body and the car remained.



                               II.

                                A.

     Drayton first argues the district court erred when it denied

his Fed. R. Crim. P. 29 motion for judgment of acquittal on Count


                              - 3 -
Eight.      We review a district court’s decision to deny a Rule 29

motion de novo.      United States v. Ryan-Webster, 353 F.3d 353, 359

(4th Cir. 2003).           When, as here, the motion is based on an

allegation of insufficient evidence, the verdict must be sustained

if there is substantial evidence, taking the view most favorable to

the Government, to support it.            See Glasser v. United States, 315

U.S. 60, 80 (1942).         “[S]ubstantial evidence is evidence that a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”     United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc).      We review both direct and circumstantial evidence and

permit the Government the benefit of all reasonable inferences from

the facts proven to those sought to be established.               United States

v.    Tresvant,    677    F.2d   1018,    1021   (4th   Cir.   1982).     Witness

credibility is within the sole province of the jury, and we will

not reassess the credibility of testimony.                     United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

       Drayton contends that the shooting on July 16, 1999, did not

occur “in relation to” a drug trafficking crime, as required under

§ 924(c).       Yet at trial the Government introduced substantial

evidence that specifically linked Thornton’s death with Drayton’s

use    of   a   firearm    in    relation   to   a   drug   trafficking   crime.

Christopher Dattore testified that on July 16, 1999, he had gone to

the Poplar Knob apartments and purchased crack cocaine from an


                                         - 4 -
associate of Drayton, J. J. Reeves, as Drayton himself stood by,

holding a quantity of crack cocaine.                 Drayton then approached

Dattore and inquired why he had started buying drugs from Big D

rather than Drayton.     As Dattore excused himself, he observed that

Drayton had an automatic handgun tucked into his front belt.

Furthermore, an eyewitness of the altercation in Beamer’s apartment

testified at trial that Big D’s statement, “Y’all messed up my

money,”   meant   that   Big   D    was    not   going   to   tolerate   Drayton

“starting trouble with everybody else” and interfering with Big D’s

“crack” cocaine business.          Finally, a 2004 cellmate of Drayton’s,

Randy Rader, testified that Drayton told him that “him and another

person had got into an altercation, and that over a business

transaction,” clarifying that “the only business [Drayton] ever

spoke about was cocaine.”      Taking this testimony in the light most

favorable to the Government, we can only conclude that the jury’s

verdict on Count Eight is supported by substantial evidence.

                                          B.

      Drayton next argues the district court erred when it denied

his motion to dismiss the indictment.                Drayton claims that the

delay between the dates of alleged offense conduct in July 1999 and

his   federal     indictment       in     February    2004    prejudiced   him.

Specifically, he maintains that the delay deprived him of the

ability to locate alibi witnesses and preserve critical evidence

like Thornton’s automobile, which was disposed of after Drayton’s


                                        - 5 -
state trial in 2000, in which he was acquitted of shooting at an

occupied vehicle.   Drayton alleges that the delay violated his due

process rights.1

     To determine whether pre-indictment delay violates the Due

Process Clause, we must examine:   (1) whether Drayton can show he

has suffered any actual, substantial prejudice; and (2) if so,

whether the reasons for the delay justify the prejudice to him.

See United States v. Automated Med. Labs., Inc., 770 F.2d 399,

403-04 (4th Cir. 1985); see also Jones, 94 F.3d at 907.    Drayton

bears the burden of proving actual prejudice, and he may not rely

on speculation to do so.   See Automated Med. Labs., Inc., 770 F.2d

at 403-04.   Review of the evidence indicates that Drayton has

failed to demonstrate actual prejudice.

     First, regarding the missing witnesses, the testimony of one,

Billy King, would have been at best cumulative because several

other eyewitnesses to the argument in Beamer’s apartment testified

at trial and Drayton failed to assert what, if any, additional

evidence King would have provided.     Although Drayton does claim

that his other witness, Cindy Rican, would allegedly have provided

an alibi concerning his whereabouts on July 16, her testimony




     1
      Drayton also claims that this delay violated his right to a
speedy trial under the Sixth Amendment. However, this right does
not attach until the defendant has been indicted or arrested. See
Jones v. Angelone, 94 F.3d 900, 906 n.6 (4th Cir. 1996)

                               - 6 -
remains completely speculative, with nothing more than Drayton’s

own assertions offered as support.

       Second, although Drayton alleges that the passage of time has

irreparably altered the scene of the crime, he fails to specify how

such changes have prejudiced his trial in any particular fashion.

We    certainly    will   not   speculate      on   this    question     given   the

photographs and videotape that the Government submitted to the jury

that depicted the scene of the shooting.

       Drayton’s third and final due process claim concerns the

destruction       of   Thornton’s   automobile.            At   trial,     Drayton’s

ballistics expert testified that he was unable to determine from

photographs the caliber of gun that caused the bullet holes in the

car door -- Big D’s 9mm or Drayton’s .22 caliber.                      However, in

light of the extensive other evidence presented at trial, we find

that Drayton has failed to show “that he was meaningfully impaired

in his ability to defend against the state’s charges to such an

extent that the disposition of the criminal proceeding was likely

affected.”    Jones, 94 F.3d at 907.         Even if the bullet holes could

have been definitively linked to Big D’s gun, it would not have

conclusively demonstrated that Drayton had not fired on Big D, only

that Big D had returned fire -- a fact that no one disputes.

       Furthermore, the Government offered substantial evidence at

trial that Drayton fired at Thornton’s vehicle.                  Two of Drayton’s

own    associates,      Hans    Reeves   and    Sherrard        Gathers,    offered


                                     - 7 -
eyewitness testimony that after driving away from the apartment

complex, Drayton directed Gathers to make a U-turn and pull off the

road, where he waited in ambush for several minutes.               Both men

described how Drayton then emerged from the roadside and fired

repeatedly at Big D’s car.            Moreover, police recovered four .22

shells at the crime scene in addition to a discarded .22 caliber

pistol that Frederick Voss testified he had sold to Drayton earlier

that       July.   The   Government    also   introduced   ballistics   tests

demonstrating that the recovered .22 casings were fired from the

gun sold to Drayton by Voss.              In light of this evidence, we

conclude that Drayton has failed to prove that he suffered actual

prejudice as a result of pre-indictment delay.2

                                        C.

       Drayton’s final claim is that the district court improperly

sentenced him to a consecutive 300-month term on Count Eight.

Drayton contends the district court should not have treated Count


       2
      Drayton also contends that the Government’s destruction of
evidence constitutes a due process violation.     However, Drayton
fails to demonstrate that the missing vehicle “possess[es] an
exculpatory value that was apparent before the evidence was
destroyed,” California v. Trombetta, 467 U.S. 479, 488-89 (1984),
or that there was “bad faith on the part of the police,” Arizona v.
Youngblood, 488 U.S. 51, 57-58 (1988). Drayton argues that the
Youngblood “bad faith” requirement does not apply in the present
case because the exculpatory value of the car door is clear from
the fact it was preserved throughout Drayton’s state court trial.
But Drayton’s own forensic expert stated that the car door might
also provide inculpatory evidence that Drayton’s gun caused the
bullet holes. For these reasons, Drayton’s failure to preserve
evidence claim also fails.


                                      - 8 -
Eight as a second or subsequent § 924(c) conviction for sentencing

purposes, because that count charged a violation of the current 18

U.S.C. § 924(j) and relied on the same facts proven in Count Seven.

Drayton claims his conviction under Count Eight does not count as

a second § 924(c) conviction and asserts the sentencing provision

in § 924(c)(1)(C)(I) is inapplicable.       Because the jury found him

responsible for manslaughter on Count Eight, Drayton argues that he

should have been sentenced under the federal manslaughter statute.

See 18   U.S.C.   §   1112   (2000)   (providing   ten-year   maximum   for

voluntary manslaughter).

     We agree with the district court’s finding that Counts Seven

and Eight serve as distinct convictions under § 924(c) for the

purpose of sentencing.       Cf. United States v. Battle, 289 F.3d 661,

666 (10th Cir. 2002); United States v. Allen, 247 F.3d 741, 769

(8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002).

Drayton’s interpretation “would lead to the odd result that a

defendant convicted under § 924(c) is subject to an additional

consecutive sentence only in situations that do not result in a

death caused by use of the firearm.”       Allen, 247 F.3d at 769.       We

therefore conclude the district court sentenced Drayton properly.




                                   - 9 -
                              III.

     For the foregoing reasons, the judgment of the district court

is

                                                        AFFIRMED.




                             - 10 -
