UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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