                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4832


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DERRICK SPARKS, a/k/a Dirk,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.    Joseph F. Anderson, Jr., Chief
District Judge. (0:02-cr-01173-JFA)


Argued:   October 30, 2008                  Decided:   January 29, 2009


Before MICHAEL and AGEE, Circuit Judges, and Martin K.
REIDINGER, United States District Judge for the Western District
of North Carolina, sitting by designation.


Affirmed by unpublished opinion.      Judge Reidinger wrote        the
opinion, in which Judge Michael and Judge Agree joined.


ARGUED: Joshua Snow Kendrick, Columbia, South Carolina, for
Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.     ON BRIEF:
Kevin F. McDonald, Acting United States Attorney, Marshall
Prince, Jimmie Ewing, Assistant United States Attorneys, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
                                   1
Unpublished opinions are not binding precedent in this circuit.




                                2
REIDINGER, District Judge:

      Derrick Sparks was convicted after a trial of one count of

conspiracy to possess with intent to distribute 50 grams or more

of cocaine base (crack cocaine) and five kilograms or more of

cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (West

1999)    and    three     counts   of   distribution        of   crack   cocaine,    in

violation of 21 U.S.C.A. § 841(a)(1).                     On appeal, Sparks argues

that the district court erred in failing to instruct the jury

not     to     consider     evidence     of      Sparks’     involvement        in   the

conspiracy before he reached the age of eighteen as evidence of

his guilt.       Sparks further argues that the district court erred

in attributing drug weight to him and adding an enhancement to

his sentence based on activities that took place while he was a

juvenile.       Finding no reversible error, we affirm.



                                          I.

      The conspiracy to distribute cocaine and crack in which

Sparks was involved began in 1994 and continued at least until

March 19, 2003.           Sparks was born on June 3, 1981 and thus did

not reach the age of majority until June 3, 1999.                              The main

point of distribution for the conspiracy was the Sparks family

residence in an area of Lancaster, South Carolina known as the

“Circle.”         The   Sparks     family       had   a   reputation     for    selling
                                            3
substantial quantities of various drugs.                 Customers would come

to the Sparks’ residence to purchase drugs from several sellers,

including Derrick Sparks and several of his relatives.

      Sparks possessed guns in relation to his drug dealing, both

before and after he turned eighteen.                 James Frazier testified

that once in 1994 or 1995, after he complained to Sparks that he

had   sold   him    soap,   Sparks   pulled    out   a   gun,   pointed    it   at

Frazier, and said: “Y’all don’t want none of this.”                  (J.A. 261).

Additionally,       Tyronne   Wright       testified     that   in    1999,     he

purchased drugs from Sparks in the carport of the Sparks family

residence and observed guns and scales in the carport.                    Scottie

Ballard testified that he purchased crack cocaine from Sparks

during the nineties in a room where a gun lay on top of a

television.        John Clinton testified about one incident, when

Sparks ran into the house of Clinton’s mother to elude police

who were chasing Sparks after he ran a stop sign.                     After the

police left, Clinton heard a “click” and turned to see Sparks

with a gun.        Sparks asked Clinton where his “dope” was located.

(S.J.A. 4).     Carlos Lang testified that he saw Sparks with a gun

a couple of times, and that he had seen a gun in the Sparks’

house.   In addition to this testimony, there was also evidence

presented at trial that during the two searches conducted of the



                                       4
Sparks’ residence, officers found numerous firearms, including

handguns and rifles, as well as various types of ammunition.

      In    February         1999,         officers       from    the      Lancaster           County

Sheriff’s     Office         used      a     confidential         informant          to    make       a

controlled buy of two grams of crack cocaine from Sparks.                                            On

August 1, 2000, the officers used a confidential informant to

make another controlled buy of approximately one gram of crack

cocaine     from     Sparks         at      the        Sparks    family       residence.              A

confidential informant made a third controlled buy of a small

quantity of crack cocaine from Sparks on March 26, 2001.                                              A

fourth     controlled        buy       of       approximately       1.8       grams       of    crack

cocaine    was     made      by    a   confidential            informant      from    Sparks         on

August 28, 2001.

      On March 19, 2003, a federal grand jury returned a 22-count

Superseding        Indictment            charging         Sparks        and     fourteen            co-

defendants       with     conspiracy            and    other     charges      related          to   the

distribution of cocaine and crack cocaine.                              A bench warrant was

issued for Sparks.                He was arrested in Virginia on November 2,

2005, and his trial began on March 23, 2006.                                     Upon finding

Sparks guilty on one count of conspiracy to possess with intent

to   distribute         50   grams         or    more     of    crack     cocaine         and       five

kilograms or more of cocaine and three counts of distribution of



                                                   5
crack cocaine, the jury attributed the distribution of 50 grams

or more of crack cocaine to him.

       The probation officer prepared a Presentence Investigation

Report (PSR), which attributed 1,986 grams of crack cocaine to

Sparks.          Based upon the quantity of drugs involved, Sparks’ base

offense level was computed to be 38.                          Two points were added to

this base offense level pursuant to U.S.S.G. § 2D1.1(b)(1) due

to the evidence presented at trial indicating that Sparks had

used    a    firearm            during   the   commission         of   a    drug    trafficking

offense.

       At a sentencing hearing on August 10 and 14, 2007, Sparks

made various objections to his PSR, including objections to the

enhancement of his sentence based on his possession of a firearm

during the commission of a drug trafficking offense and to the

quantity         of    drugs      attributed     to    him.        After     hearing      lengthy

arguments from counsel and reviewing the trial transcript, the

district court determined that Sparks was responsible only for

809    grams          of    crack    cocaine.          The    district       court       overruled

Sparks’ objection to the two-level enhancement for the firearm

possession.                The   district      court    found      Sparks’       total    offense

level       to    be       38,    with   a     criminal      history        category      of     II,

resulting          in       a    Guidelines      range       of     263     to     327    months’

imprisonment.                After   considering        the       factors    outlined       in    18
                                                  6
U.S.C.A. § 3553(a), the district court sentenced Sparks to 305

months’ imprisonment.            This appeal followed.



                                             II.

        Sparks    first        argues   that       the    district    court     erred    in

failing to instruct the jury not to consider evidence of Sparks’

involvement       in     the    conspiracy         before   he   reached   the    age    of

eighteen as evidence of his guilt.

        Because Sparks failed to raise this issue below, we review

the district court’s jury instructions for plain error.                                 See

United States v. Wilson, 484 F.3d 267, 279 (4th Cir. 2007).

Under the plain error standard of review, the defendant must

show (1) that an error was committed; (2) that the error was

plain; and (3) that the error affected his substantial rights.

See United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001)

(en banc).         If the defendant satisfies this burden, the Court

may exercise its discretion and correct the plain error.                                Id.

Such discretion should be exercised “only when failure to do so

would    result     in    a    miscarriage         of    justice,   such   as   when    the

defendant is actually innocent or the error ‘seriously affect[s]

the     fairness,        integrity      or     public       reputation     of    judicial

proceedings.’” Id. at 161 (quoting United States v. Olano, 507

U.S. 725, 736, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)).
                                               7
      The Court must first determine whether the admission of

this evidence was plain error.               A plain error is one that is

“clear” or “obvious.”            Olano, 507 U.S. at 734, 113 S. Ct. 1770.

“This standard is satisfied when the ‘settled law of the Supreme

Court    or   this    circuit’     establishes    that    an   error   occurred.”

United    States      v.   Neal,   101   F.3d    993,    998   (4th    Cir.   1996)

(quoting United States v. Mitchell, 996 F.2d 419, 422 (D.C. Cir.

1993)).       Absent such authority, the decisions of other circuit

courts may be pertinent to determining whether plain error has

occurred.       See United States v. Gastiaburo, 16 F.3d 582, 588

(4th Cir. 1994); see also United States v. Alli-Balogun, 72 F.3d

9, 12 (2d Cir. 1995) (“we do not see how an error can be plain

error when the Supreme Court and this court have not spoken on

the   subject,       and   the   authority   in   other    circuit      courts   is

split”).

      In arguing that the district court plainly erred, Sparks

relies upon United States v. Spoone, 741 F.2d 680 (4th Cir.

1984).     Specifically, Sparks argues that this Court’s decision

in Spoone required the court below to instruct the jury not to

consider acts that took place before Sparks turned eighteen in

determining his guilt.             Spoone, however, is not applicable to

this case.



                                         8
      The Spoone decision is founded upon an application of the

Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (“JDA”).                                      The

JDA governs the prosecution of juveniles for acts of juvenile

delinquency         in    the     federal          courts      and    further          provides

procedures        for     the     transfer          of      juveniles       for        criminal

prosecution, with certain procedural safeguards.                                See 18 U.S.C.

§ 5032.      The JDA defines a “juvenile” as “a person who has not

attained      his       eighteenth      birthday,         or    for       the     purpose       of

proceedings and disposition under this chapter for an alleged

act of juvenile delinquency, a person who has not attained his

twenty-first birthday.”            18 U.S.C. § 5031 (emphasis added).

      In Spoone, the defendant was an eighteen-year-old who was

charged      as    an    adult    with     participating             in    an     auto    theft

conspiracy that began when the defendant was still a juvenile

and   that    continued         after    the       defendant     reached         the     age   of

majority.         Spoone, 741 F.2d at 683, 687.                      Because Spoone was

originally charged as an adult rather than under the procedures

set out in the JDA, this Court concluded that the defendant’s

acts prior to reaching the age of majority could not form the

basis of his conspiracy conviction.                      Id. at 687.

      While the JDA afforded some protection to Spoone, who was

eighteen years old at the time of his prosecution, the JDA does

not   afford      the     same   protection          to     Sparks.        “[C]ourts        have
                                               9
consistently        held       that    a    defendant        who    is    alleged            to    have

committed a crime before his eighteenth birthday may not invoke

the    protection         of   the     Juvenile        Delinquency        Act       if       criminal

proceedings begin after the defendant reaches the age of twenty-

one.”       United States v. Hoo, 825 F.2d 667, 669-70 (2d Cir.

1987).       For the purposes of the JDA, criminal proceedings are

deemed      to    begin    with       the   filing      of   the    indictment.                   In   re

Martin, 788 F.2d 696, 697-98 (11th Cir. 1986). In the present

case, the original indictment against Sparks was handed down on

October 20, 2002, four-and-a-half months after the Defendant’s

twenty-first birthday.                 Because the prosecution of Sparks was

not    initiated     until       after       he   reached     the    age       of       twenty-one,

Sparks,     unlike    the       defendant         in   Spoone,      is    not       a    “juvenile”

within      the    meaning       of    the    JDA      and   thus        may    not       seek         the

protection afforded by that act.

       Because      the    JDA    and       Spoone     are    inapplicable              to    Sparks’

prosecution, there was no error in the district court failing to

give    a    limiting      jury       instruction        regarding        the       evidence            of

Sparks’ juvenile acts.                For these reasons, we find Sparks’ first

issue on appeal to be without merit.




                                                  10
                                                  III.

       Sparks       raises         two    issues      with     respect       to    his        sentence.

First, he argues that the district court erred in considering

any quantity of drugs attributable to him during the conspiracy

prior to his reaching the age of eighteen.                               Second, he contends

that his sentence should not have been enhanced for possession

of a firearm during the commission of a drug trafficking offense

because       the       firearm          possession       took        place       prior        to    his

eighteenth birthday.

       We review the sentence imposed by the district court under

a    deferential         abuse-of-discretion                 standard.            Gall    v.    United

States,       128       S.    Ct.    586,       597,     169    L.     Ed.    2d        445    (2007).

Initially, we must “ensure that the district court committed no

significant         procedural            error,        such     as     .     .     .     improperly

calculating         .    .    .    the    Guidelines          range.”        United       States      v.

Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128 S. Ct.

at    597),    cert.         denied,      128    S.     Ct.    2525,    171       L.     Ed.    2d   805

(2008).         Once          we    have     determined          that        the        sentence      is

procedurally            sound,      we     then       must     consider       the        substantive

reasonableness of the sentence.                          Gall, 128 S. Ct. at 597.                      A

sentence which falls within the properly calculated Guidelines

range may be presumed by the appellate court to be reasonable.

Id.     We review the district court’s legal conclusions de novo
                                                   11
and its factual findings for clear error.                       United States v.

Harvey, 532 F.3d 326, 336 (4th Cir. 2008).

     This Court has not addressed the issue of whether juvenile

conduct committed during a drug conspiracy may be considered

during the sentencing phase for a conspiracy conviction.                         The

Sixth   Circuit    and   the    D.C.    Circuit    have   concluded     that   such

conduct may be considered.             In United States v. Gibbs, 182 F.3d

408 (6th Cir. 1999), the Sixth Circuit held that because the

Sentencing   Guidelines        allow    a    district   court    to   consider    as

relevant conduct quantities of drugs “that were part of the same

course of conduct or common scheme or plan as the offense of

conviction,” a district court may consider relevant conduct that

occurred when the defendant was a juvenile, “as long as such

conduct    falls     within      the        limitations    set     forth    in    §

1B1.3(a)(2).”      Id. at 442.

     The D.C. Circuit reached a similar conclusion in United

States v. Thomas, 114 F.3d 228 (D.C. Cir. 1997):

     The court may consider as relevant conduct all acts of
     the defendant and all reasonably foreseeable acts or
     omissions of others in furtherance of the jointly
     undertaken   activity,    “that  occurred   during   the
     commission   of   the    offense   of   conviction,   in
     preparation for that offense, or in the course of
     attempting to avoid detection or responsibility for
     that offense.”    U.S.S.G. § 1B1.3(a)(1).     Since [the
     defendant] was properly convicted in adult court of a
     conspiracy he joined as a juvenile but continued in
     after eighteen, the Guidelines unambiguously permit
                                            12
      the court to consider his and his co-conspirators'
      foreseeable   conduct   “that   occurred   during   the
      commission of the [entire conspiracy] offense,” id.,
      starting when he joined the conspiracy at age eleven.

Id.   at    267.     We      find   the    reasoning    of   the   Sixth    and   D.C.

Circuits to be persuasive and therefore hold that in sentencing

an adult defendant for conspiracy, a district court may consider

all relevant conduct, including conduct which occurred when the

defendant      was      a    juvenile       participant      in    the    conspiracy.

Accordingly, we find Sparks’ argument that the district court

erred in considering the drug quantities attributable to him as

a juvenile to be without merit.

      Similarly, we reject Sparks’ contention that the district

court      erred   in       applying      the    two-level   firearm      enhancement

pursuant to U.S.S.G. § 2D1.1(b)(1).                  There is ample evidence in

the record that Sparks possessed guns in relation to his drug

dealing, both before and after he turned eighteen.                       Accordingly,

this argument is also found to be without merit.

      Upon carefully reviewing the record, we conclude that the

district court’s sentencing determination is procedurally sound,

and that the sentence, which was within the properly calculated

Guidelines range, is presumptively reasonable.                      Accordingly, we

conclude that the district court did not abuse its discretion in

sentencing Sparks to 305 months of imprisonment.


                                            13
                            IV.

    For the foregoing reasons, we affirm the judgment of the

district court.

                                                    AFFIRMED




                            14
