Filed: Jun. 07, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4680 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY WAYNE GUESS, Defendant -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 Affirmed by unpublished per curiam opinion.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 T
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4680 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY WAYNE GUESS, Defendant -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 Affirmed by unpublished per curiam opinion.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 TH..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
