                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4656


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC DION LATHAM, a/k/a E,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:12-cr-00084-BO-2)


Submitted:   July 8, 2014                  Decided:   July 25, 2014


Before WYNN, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina,
for Appellant.     Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Eric Dion Latham was convicted by a jury of conspiracy

to    distribute       crack   cocaine     (Count      One),     in   violation      of    21

U.S.C. § 846 (2012); possession of a firearm in furtherance of a

drug trafficking offense and aiding and abetting (Count Four),

in violation of 18 U.S.C. §§ 924(c)(1)(A), 2 (2012); and two

counts of possession of a firearm by a convicted felon (Counts

Five and Six), in violation of 18 U.S.C. § 922(g)(1) (2012).

Latham also pled guilty to distribution of crack (Count Three),

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2012).

The    district        court   sentenced        Latham    to     a    downward    variant

sentence    of    240       months   on   Counts    One,       Three,    Five,   and      Six

followed    by     a    consecutive       60-month       sentence       on   Count   Four.

Latham challenges on appeal the sufficiency of the evidence, the

court’s jury instructions on two counts, and his sentence.                                 We

affirm.

            Latham asserts that the evidence did not support his

convictions on Counts One, Four, Five, and Six.                              We review de

novo the denial of a Fed. R. Crim. P. 29 motion for a judgment

of acquittal.          United States v. Hickman, 626 F.3d 756, 762 (4th

Cir. 2010).        The jury verdict must be sustained when “there is

substantial evidence in the record, when viewed in the light

most favorable to the government, to support the conviction[s].”

United    States       v.    Jaensch,     665   F.3d     83,    93    (4th    Cir.   2011)

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(internal quotation marks omitted).               “Reversal for insufficient

evidence is reserved for the rare case where the prosecution’s

failure is clear.”          United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997) (internal quotation marks omitted).

            To obtain a conviction for conspiracy to possess with

the intent to distribute a controlled substance, “the Government

must prove the following essential elements:                   (1) an agreement

between two or more persons to engage in conduct that violates a

federal    drug    law;     (2)    the   defendant’s       knowledge       of   the

conspiracy;     and   (3)    the    defendant’s        knowing      and   voluntary

participation in the conspiracy.”               United States v. Green, 599

F.3d 360, 367 (4th Cir. 2010).               A defendant may be convicted of

conspiracy without knowing all of its details, as long as he

enters    the   conspiracy    understanding       that    it   is    unlawful   and

willfully joins in the plan at least once.                     United States v.

Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).

            After viewing the evidence as a whole, we conclude

that there was sufficient evidence to support the jury’s verdict

on Count One, as the Government presented evidence of a broader

conspiracy beyond one drug sale.              Latham maintained a room at a

boarding house that was commonly known as a drug house for at

least a month before the April 3, 2012 controlled buys, and one

of   Latham’s   co-conspirators      informed      a   confidential       informant

that Latham could complete a drug sale if he was not available

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to do so.       The lack of Latham’s conspiracy activity dating back

to April of 2011 is inconsequential.                   “When the [G]overnment’s

proof diverges to some degree from the indictment but does not

change    the    crime    charged     in   the   indictment,     a    mere    variance

occurs.”        United States v. Allmendinger, 706 F.3d 330, 339-40

(4th Cir.), cert. denied, 133 S. Ct. 2747 (2013); see United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).                               The

variance here was non-fatal because the proof offered by the

Government      at     trial   merely      narrowed    the   time     frame    of   the

conspiracy       but     did   not     alter     the   crime     charged      in    the

indictment, and the variance did not prejudice Latham.

            To prove a violation of § 924(c)(1), the Government

must demonstrate that:               “(1) the defendant used or carried a

firearm, and (2) the defendant did so during and in relation to

a drug trafficking offense,” United States v. Mitchell, 104 F.3d

649, 652 (4th Cir. 1997), or “that the possession of a firearm

furthered,       advanced,     or     helped     forward     a   drug    trafficking

crime.”     United States v. Perry, 560 F.3d 246, 254 (4th Cir.

2009)    (internal       quotation     marks     omitted).       “A     defendant    is

guilty of aiding and abetting if he has knowingly associated

himself with and participated in the criminal venture.”                        Burgos,

94 F.3d at 873 (internal quotation marks omitted).                        “An active

participant in a drug transaction has the intent needed to aid

and abet a § 924(c) violation when he knows [in advance] that

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one of his confederates will carry a gun.”                                   Rosemond v. United

States, 134 S. Ct. 1240, 1249 (2014).

               After viewing the evidence as a whole, we conclude

that there was sufficient evidence to support the jury’s verdict

on   Count     Four.         The          conversation          regarding      the   sale    of     the

firearm       took       place    during           the       drug   sale,    after   which       Latham

provided the confidential informant with one-half of the agreed

amount of crack.             Selling guns and drugs in the same transaction

constitutes “use” of firearm in the context of § 924(c).                                         United

States    v.    Claude           X,   648         F.3d       599,   603-04    (8th    Cir.       2011).

Moreover, we have held that, when a drug buyer “‘sweeten[s] the

pot[]’ [by] offering to purchase not only drugs, but . . . [a

gun]     as    well[,]       .        .       .    the       firearm      facilitates      the     drug

transaction, making it possible for the drug buyer to get the

drug seller to take the risks inherent in selling contraband.”

United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000).

               To        support          a       conviction        for     being    a    felon      in

possession of a firearm under § 922(g)(1), the Government must

prove the following elements:                         “(1) the defendant previously had

been convicted of a . . . [felony]; (2) the defendant knowingly

possessed . . . the firearm; and (3) the possession was in or

affecting       commerce,             because            the    firearm      had     travelled      in

interstate          or     foreign            commerce         at    some    point       during     its

existence.”          United States v. Moye, 454 F.3d 390, 395 (4th Cir.

                                                         5
2006) (en banc) (internal quotation marks omitted).                                  Although

Latham    disputes        that    he    possessed          the   firearms     at    issue,    we

conclude     that        there    was    sufficient          evidence    to       support    the

jury’s verdict on Counts Five and Six.                             See United States v.

Lawing, 703 F.3d 229, 240 (4th Cir. 2012) (discussing possession

element of offense), cert. denied, 133 S. Ct. 1851 (2013).

              Latham        next        challenges           the       district       court’s

instructions to the jury regarding Counts Five and Six.                                “[T]he

. . . decision to give or refuse to give a jury instruction [is

reviewed] for abuse of discretion.”                         United States v. Sarwari,

669   F.3d    401,       410-11    (4th    Cir.       2012);     see    United      States    v.

Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (discussing standard

in reviewing refusal to give proffered instruction).                                  We hold

that the district court did not abuse its discretion in refusing

Latham’s     proffered       “knowing”          instruction        because    a     conviction

under § 922(g)(1) does not require a defendant’s knowledge of

either his felon status or the firearm’s interstate nexus as an

element of the offense.                 United States v. Langley, 62 F.3d 602,

605‐06 (4th Cir. 1995).                 Moreover, the district court correctly

instructed         the    jury    that     it       must    find    Latham        actively    or

constructively possessed the firearms to sustain a conviction on

each count.

              Latham also challenges the district court’s refusal to

provide      the    jury     with       instructions         regarding       an    entrapment

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defense.     “We review de novo a district court’s decision to deny

a     criminal      defendant[’s]          [requested]             jury      instruction       on

entrapment.”         United States v. Ramos, 462 F.3d 329, 334 (4th

Cir.    2006).       “The       district    court        is   the       gatekeeper;      if   the

defendant     does     not       produce    more         than      a    mere    scintilla      of

evidence     of      entrapment,           the      court          need      not     give     the

instruction.”        United States v. Hackley, 662 F.3d 671, 681 (4th

Cir. 2011) (internal quotation marks omitted); see Ramos, 462

F.3d    at    334     (discussing          elements           of       entrapment);      United

States v.    Daniel,        3    F.3d   775,       778    (4th     Cir.      1993)   (defining

inducement).         Our review of the record leads us to conclude,

with confidence, that the evidence did not support an entrapment

instruction.        See Ramos, 462 F.3d at 334-35.                          Thus, Latham is

entitled to no relief on this claim.

             Finally, Latham challenges his sentence.                              We review a

sentence     for    reasonableness,          applying           “an     abuse-of-discretion

standard.”        Gall v. United States, 552 U.S. 38, 51 (2007).                              We

first    review     for     “significant         procedural            error”     and,   if   the

sentence     is    free     from    such    error,        then         consider    substantive

reasonableness.        Id.        Procedural error includes, as is relevant

to this appeal, “improperly calculating[] the Guidelines range.”

Id.

             Latham       challenges       his     status       as      a   career   offender.

“We review the district court’s . . . classification of [Latham]

                                               7
as a career offender de novo” and review for clear error the

court’s factual findings.              United States v. Farrior, 535 F.3d

210, 223 (4th Cir. 2008); see U.S. Sentencing Guidelines Manual

(“USSG”)     §    4B1.1(a)     (2012)     (setting     forth     what   qualifies

defendant as career offender).                In designating Latham a career

offender, the probation officer relied on Latham’s June 1996

conviction       for    attempted      criminal      sale   of    a     controlled

substance, for which he was sentenced to eighteen to fifty-four

months’ imprisonment.          Latham argues only that the challenged

prior conviction did not result in his incarceration during the

fifteen-year period preceding the controlled buy that occurred

on the evening of April 3, 2012.

           We hold that the 1996 controlled substance conviction

falls within the requisite time frame and was properly counted

for   purposes    of    the   career    offender    Guideline.        The   conduct

comprising Count Three occurred exactly fifteen years to the day

following Latham’s release from imprisonment resulting from his

1996 conviction.         See USSG § 4A1.2(e)(1) (discussing applicable

time period).          Moreover, there was ample evidence that Latham

was engaged in a conspiracy to sell narcotics at least one month




                                          8
prior     to    April      3,    2012.      Accordingly,       the    district     court

correctly designated Latham as a career offender. *

               Finally,         we   conclude    that        Latham’s      sentence   is

substantively reasonable.                If the sentence is below the properly

calculated Guidelines range, we apply a presumption on appeal

that the sentence is substantively reasonable.                       United States v.

Susi, 674 F.3d 278, 289 (4th Cir. 2012); see Gall, 552 U.S. at

51 (defining substantive reasonableness).                     Such a presumption is

rebutted       only   if    the      defendant   shows   “that       the   sentence   is

unreasonable when measured against the [18 U.S.C.] § 3553(a)

[(2012)] factors.”               United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).                          We

hold that Latham has not rebutted the presumption afforded his

below-Guidelines sentence and that his sentence is reasonable.

               Accordingly, we affirm the district court’s judgment.

We   dispense     with      oral     argument    because      the    facts   and   legal

contentions      are    adequately        presented     in    the    materials     before

this court and argument would not aid the decisional process.



                                                                               AFFIRMED

      *
       In view of our holding that Latham was properly found to
be a career offender, we need not address his challenges to the
procedural reasonableness of his sentence — specifically, the
drug quantity determination and the individual sentencing
enhancements. See USSG § 4B1.1(c)(2), (3).



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