UNPUBLISHED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-WLO2)

Submitted: May 21, 2010 Decided: June 10, 2010

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
2

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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.
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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 
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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 sevenmonth 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, 
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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 
7

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 
8

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 
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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 
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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. 
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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