                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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.

                                                3
            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

                                            4
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,

                                            5
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

                                                6
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

                                         7
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

                                                  8
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

                                              9
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.

                                             10
            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




                                       11
