UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit. 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 
3 

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 
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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 
5 

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 codefendants 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 
6 

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 
7 

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)). 
8 

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. 
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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 
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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 twentyone.” 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. 
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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
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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 
13 

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. 
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IV. 

For the foregoing reasons, we affirm the judgment of the 

district court. 

AFFIRMED