                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 11-4680


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

TIMOTHY WAYNE GUESS,

               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:10-cr-00140-MSD-TEM-1)


Argued:    May 15, 2012                       Decided:   June 7, 2012


Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.    Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.   ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, Keith Loren Kimball, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
Kevin Comstock, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Norfolk        police        arrested       Timothy        Wayne     Guess       in

possession     of     two    firearms       and    a    variety    of     illicit      drugs.

After the ensuing trial, a jury convicted Guess of ten firearm

and drug-trafficking offenses.                The court imposed a sentence of

460   months      imprisonment.            Guess    now    challenges       some       of   his

convictions and the resulting sentence.                         For the reasons that

follow, we affirm.



                                             I.

             On     June    23,   2010,      police      arrested       Julie     Oliva      and

found   in     her     possession         about    one    gram     of    methamphetamine

(hereinafter         “meth”).        Hoping       for    leniency,       Oliva    chose       to

cooperate with the officers and arrange a drug buy from Guess,

who had sold her meth in the past.                        Under police supervision,

Oliva called Guess, who agreed to sell Oliva three grams of meth

for   $500     and    arranged       to    meet    her     later    that        day   at     her

apartment to complete the sale.

             The      officers,        accompanied         by     Oliva,        planned       to

intercept      Guess    on    his    way     to    Oliva’s      apartment.            As    they

approached the apartment, however, Guess called Oliva to inform

her   that     he    had     already      arrived.        From     inside       the    police

vehicle,     Oliva     identified         Guess    and    his    white     pickup      truck,

parked nearby.

                                              2
               The   officers         approached        Guess    and,      after     some

resistance, placed him under arrest.                    A search of Guess’s person

revealed a loaded Smith and Wesson semi-automatic pistol, $1100

in cash, and three grams of meth.                  The officers also found keys

to the truck.           A subsequent search of the truck uncovered a

black    Beretta      semi-automatic           pistol,     $1435     in     cash,   17.6

additional      grams    of    meth,    14     diazepam    pills,     14    amphetamine

pills, 135 oxycodone pills, and various drug paraphernalia.

               Based on this evidence, a grand jury indicted Guess on

ten    counts.       Count      One    charged     a     criminal     conspiracy,     in

violation of 21 U.S.C. § 846, with three objects: (i) to possess

meth    with    an   intent     to    distribute,       (ii)    to   maintain   a    drug

house, and (iii) to use a communication facility to commit a

drug    offense.        Count    Two    charged     possession       with    intent    to

distribute the meth found on Guess’s person, in violation of 18

U.S.C. § 841.        Counts Three through Six charged possession with

intent to distribute each of the four drugs found in Guess’s

truck.    Counts Seven and Eight charged Guess with possessing and

using a firearm in furtherance of a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1).                      Finally, Counts Nine and

Ten charged Guess with being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1).

               Guess proceeded to trial on all counts.                       At trial,

Oliva    testified      that    she    first     came    into   contact     with    Guess

                                             3
through her roommate, Kristin Post.                   On one occasion, Oliva saw

Post buy drugs from Guess.                    On another occasion, at Oliva’s

request, Post used Oliva’s cell phone to call Guess and arrange

for Oliva to buy meth.               Post and Guess set up the transaction,

which took place at Oliva’s apartment.                      About a week after this

sale,     police    arrested         Oliva     and    she     began     acting      as     an

informant.         In    order      to   arrange      the     sale    that     ultimately

resulted    in     Guess’s      arrest,      Oliva    told    Guess     that      she    “was

getting    ripped       off    by   [Post]     and    she    wanted    to    go   directly

through [Guess] to purchase meth[].”

            To put the relationship between Oliva, Post, and Guess

in    context,     the    Government         presented       expert    testimony         from

Norfolk    Police        Investigator         Nicholas      Marcus.         Investigator

Marcus explained that because this local meth community is “a

very close-knit organized group that has a very strong element

of    trust,”    users        and   dealers    are    wary    of     dealing      with    new

parties without some type of assurance.

            Much of the remaining evidence at trial focused on

whether Guess in fact owned the pickup truck and its contents.

The     Government       also       called     four    jailhouse        witnesses         who

testified that while in Western Tidewater Regional Jail, Guess

attempted to hire someone to kill Oliva in order to prevent her

from testifying.          According to this testimony, Guess offered to

pay “$5000 to have it done.”

                                              4
            Ultimately, the jury convicted Guess on all counts.

In   response      to    special      interrogatories,                the   jury   found     that

Guess committed all three objects of the conspiracy charged in

Count One.         Under Counts Seven and Eight, the jury found that

Guess violated both the use and possession prongs of § 924(c).

             The      district        court         subsequently            rejected    Guess’s

challenges       to     the    sufficiency           of        the    evidence     as   to    the

conspiracy    charge          and   the   two       § 924(c)(1)         convictions.          The

court agreed, however, that Guess could not be convicted of both

§ 922(g)(1) charges in Counts Nine and Ten.                                 Accordingly, the

court vacated Guess’s conviction on Count Ten.

            Guess’s criminal history and an obstruction of justice

enhancement yielded a Guidelines range of 97 to 121 months for

Counts One through Six and Nine.                     Counts Seven and Eight carried

a    mandatory     360    month       sentence,           to    run    consecutive      to    the

Guidelines sentence.                See 18 U.S.C. § 924(c)(1)(A)(i), (C)(i).

Ultimately, the district court imposed a 460 month sentence --

360 months on Counts Seven and Eight, and 100 months on the

remaining counts.



                                              II.

            On appeal, Guess renews his argument that the evidence

was insufficient to convict him of the charged conspiracy.                                     To

prove conspiracy, “the Government must establish that:                                  (1) an

                                                5
agreement to [possess meth with an intent to distribute meth]

existed between two or more persons; (2) the defendant knew of

the conspiracy; and (3) the defendant knowingly and voluntarily

became a part of this conspiracy.”               United States v. Burgos, 94

F.3d 849, 857 (4th Cir. 1996) (en banc). 1                 “[T]he ‘gravamen of

the crime of conspiracy is an agreement to effectuate a criminal

act.’”       Id. at 857 (citation omitted).              However, “[b]ecause a

conspiracy is by nature ‘clandestine and covert,’ there rarely

is direct evidence of such an agreement.                 As such, a conspiracy

is usually proven by circumstantial evidence.”                  United States v.

Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (citation omitted).

               A jury’s finding of a conspiracy “‘must be sustained

if there is substantial evidence, taking the view most favorable

to the Government, to support it.’”                  Burgos, 94 F.3d at 862

(quoting 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



       1
       As noted above, the jury convicted Guess of a criminal
conspiracy with three different objects.        Although we have
serious reservations regarding the jury’s finding on the final
two objects -- conspiracy to maintain a drug house and to use a
communication facility to commit a drug offense -- the
conviction must be sustained if the evidence is sufficient with
regard to any one of the charged objects. See Griffin v. United
States, 502 U.S. 46, 56–57 (1991).         Accordingly, we focus
exclusively on the first asserted object of the conspiracy, to
possess meth with an intent to distribute.


                                         6
conclusion of a defendant's guilt beyond a reasonable doubt.”

Id.

               Guess correctly notes that because Oliva acted as a

“government agent,” she cannot supply the necessary “agreement”

to form the conspiracy.              See United States v. Chase, 372 F.2d

453, 459 (4th Cir. 1967).              Accordingly, the relevant agreement

must derive from Guess and Kristin Post.

               Guess contends that the Government’s evidence merely

established that Guess and Post had a buyer-seller relationship,

not a conspiratorial agreement.                Generally speaking, “evidence

showing    a       buyer-seller   relationship     is    not   alone    enough   to

establish      a    drug-distribution      conspiracy.”        United   States   v.

Young, 609 F.3d 348, 355 (4th Cir. 2010) (citing United States

v.    Mills,    995    F.2d   480,   485   (4th   Cir.1993)).      Nevertheless,

“‘evidence of a buy-sell transaction is at least relevant (i.e.

probative) on the issue of whether a conspiratorial relationship

exists.’”       United States v. Hackley, 662 F.3d 671, 679 (4th Cir.

2011) (quoting Mills, 995 F.2d at 485 n.1).

               The evidence in this case established much more than a

bare buyer-seller association.                 The evidence established that

Post bought drugs from Guess for personal use, that she sold

drugs to support her habit, and that she contacted Guess to “set

up [a] deal” on Oliva’s behalf.                Oliva described Post as “a[n]

in-between” for this drug transaction.                  Post played a critical

                                           7
role because, as the Government’s expert witness explained, in

this “close-knit” meth community, dealers and users typically

only dealt with trusted parties.                Accordingly, the jury could

have inferred that Post vouched for Oliva to Guess, and vouched

for Guess to Oliva.           This inference is supported by Oliva’s

statement to Guess, made when acting as a police information,

that she “was getting ripped off by [Post] and she wanted to go

directly through [Guess] to purchase meth[].”

              All of this evidence distinguishes Post and Guess’s

relationship from that of a mere buyer and seller, and instead

suggests that Guess and Post worked together to engage a third

party in the drug trade.                Because a rational jury could have

found beyond a reasonable doubt that Guess knowingly engaged in

a   conspiracy    with     Post    to    distribute   and   possess     meth   with

intent to distribute, we conclude that the Government offered

sufficient evidence to support Guess's conspiracy conviction.



                                         III.

              Next,   Guess       challenges    his   second   conviction       and

sentence      under   18   U.S.C.    § 924(c)(1).      That    statute    imposes

severe penalties on any person who, “during and in relation to

any   . . .    drug   trafficking       crime[,]   . . .    uses   or   carries   a

firearm, or who, in furtherance of any such crime, possesses a

firearm.”

                                           8
             In this case, the Government charged Guess with two

violations of § 924(c)(1).               Count Seven charged possession and

use of a firearm in relation to the three grams meth intended

for sale to Oliva (charged in Count Two).                    Count Eight charged

possession and use of a firearm in relation to the various drugs

found in the pickup truck (charged in Counts Three through Six).

The   jury     convicted         Guess     on     both     § 924(c)(1)         charges,

specifically finding that he both “possessed” and “used” the

firearm.      These        convictions     triggered       consecutive     mandatory

sentences     of    five     and   twenty-five          years.     See    18     U.S.C.

§ 924(c)(1)(A)(i), (C)(i).

             Guess contends that he could not have been convicted

and   sentenced      for    a    second    § 924(c)(1)       offense     because     he

possessed     the    two     firearms      and     the     drugs   simultaneously.

Specifically,       Guess       argues    that    his     second   conviction       is

“multiplicitous” because the evidence supports only “a single

offense.”     See United States v. Thomas, 669 F.3d 421, 425 (4th

Cir. 2012).         “The rule against multiplicity is rooted in the

Double   Jeopardy      Clause      of    the    Fifth    Amendment,      which    . . .

prohibit[s] ‘successive prosecutions for the same offense’ as

well as ‘the imposition of cumulative punishments for the same

offense in a single criminal trial.’”                   United States v. Shrader,




                                           9
675 F.3d 300, 313 (4th Cir. 2012).               We review Guess’s challenge

de novo. 2

               Guess    argues   that   the    evidence   did    not      establish

“multiple, separate acts of firearm use or carriage,” because he

possessed the firearms simultaneously.                 See United States v.

Camps, 32 F.3d 102, 107-08 (4th Cir. 1994).                But Guess fails to

address our controlling precedent in United States v. Khan, 461

F.3d 477, 493 (4th Cir. 2006).                In Khan, we affirmed multiple

§ 924(c)(1)       convictions     because     each   related    to    a   separate

underlying predicate offense.            The Khan court explained that so

long as the predicate offenses are distinct for double jeopardy

purposes, each can support a § 924(c)(1) charge.                     Id. (quoting

United States v. Blockburger, 284 U.S. 299, 304 (1932)).

               Given Khan, we must conclude that Guess’s § 924(c)(1)

convictions and sentence are permissible.                 Guess concedes that

the drugs found on his person and the drugs found in his pickup

were       properly    charged   as   separate   offenses.      Compare      United

       2
       We review this contention de novo even though Guess only
raised the argument at sentencing, not pre-trial.      Guess does
not assert that the Government could not have charged two
§ 924(c)(1) offenses.    Such an objection would relate to the
form of the indictment and must be raised pre-trial.     See Fed.
R. Crim. Proc. 12(b)(3); United States v. Colton, 231 F.3d 890,
909 (4th Cir. 2000).    Rather, Guess contends that the evidence
produced at trial can only support one conviction and sentence.
We consider such contentions de novo though only raised post-
trial.   See Ball v. United States, 470 U.S. 856, 865 (1985);
United States v. Ankeny, 502 F.3d 829, 838 (9th Cir. 2007);
United States v. Abboud, 438 F.3d 554, 566-67 (6th Cir. 2006).


                                         10
States v. Goodine, 400 F.3d 202, 209 (4th Cir. 2005) (permitting

separate     convictions    for   firearm       and   ammunition    possession

because they “were seized at different times and in different

locations” based on different evidence), with United States v.

Dunford,     148    F.3d   385,   390        (4th   Cir.   1998)   (concluding

possession of firearms and ammunition “seized at the same time”

constituted a single offense).               Guess must concede this point

not only because of the physical distance between the seizures

and the different evidence required to prove each possession,

but also because the drugs found on Guess’s person related to

the prearranged sale to Oliva, while the drugs found in Guess’s

truck related to a future distribution.               Accordingly, under our

precedent,    the   separate   underlying       predicate   offenses   support

Guess’s two § 924(c)(1) convictions. 3




     3
       Although we affirm Guess’s two § 924(c)(1) convictions on
the facts of this case, we do not decide that Guess could have
been convicted of more than two § 924(c)(1) offenses.     In its
filings and at oral argument, the Government represented that
under Department of Justice policy, each § 924(c)(1) charge must
relate to a separate predicate offense.    Compare United States
v. Camps, 32 F.3d 12 (4th Cir. 1994).       Moreover, we do not
necessarily decide that every separate predicate offense can
sustain a separate § 924(c)(1) charge.     For example, although
the Government may properly charge each type of drug found in
Guess’s pickup in a separate count, see United States v.
Grandison, 783 F.2d 1152, 1156 (4th Cir. 1986), a separate
§ 924(c)(1) charge for each drug would arguably contort
§ 924(c)(1) beyond any reasonable application.


                                        11
                               IV.

          For the foregoing reasons, the judgment of the

district court is



                                                           AFFIRMED.




                               12
