United States v. Timothy Guess, 4th Cir. (2012)

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
possession
of
police
two
arrested
firearms
and
Timothy
variety
Wayne
of
Guess
illicit
in
drugs.
After the ensuing trial, a jury convicted Guess of ten firearm

and drug-trafficking offenses.
460
months
imprisonment.
The court imposed a sentence of
Guess
now
challenges
convictions and the resulting sentence.
some
of
his
For the reasons that
follow, we affirm.
I.
On
found
in
June
her
(hereinafter
23,
2010,
possession
meth).
police
about
Hoping
arrested
one
for
gram
Julie
of
leniency,
Oliva
and
methamphetamine
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
planned
to
apartment to complete the sale.

The
intercept
officers,
Guess
on
his
accompanied
way
to
by
Olivas
Oliva,
apartment.
As
they
approached the apartment, however, Guess called Oliva to inform

her
that
vehicle,
he
had
Oliva
already
identified
arrived.
Guess
parked nearby.
2
and
From
his
inside
white
the
police
pickup
truck,
The
officers
approached
Guess
resistance, placed him under arrest.
and,
after
some
A search of Guesss person
revealed a loaded Smith and Wesson semi-automatic pistol, $1100

in cash, and three grams of meth.
to the truck.
black
A subsequent search of the truck uncovered a
Beretta
additional
The officers also found keys
semi-automatic
grams
of
meth,
14
pistol,
$1435
diazepam
pills,
in
14
cash,
17.6
amphetamine
pills, 135 oxycodone pills, and various drug paraphernalia.

Based on this evidence, a grand jury indicted Guess on
ten
counts.
Count
One
charged
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
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 Guesss 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 Guesss

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.
Oliva
testified
that
she
first
3
came
into
contact
At trial,
with
Guess
through her roommate, Kristin Post.

Post buy drugs from Guess.
On one occasion, Oliva saw
On another occasion, at Olivas
request, Post used Olivas cell phone to call Guess and arrange
for Oliva to buy meth.
Post and Guess set up the transaction,
which took place at Olivas apartment.

sale,
police
arrested
informant.
In
resulted
Guesss
getting
in
ripped
order
off
Oliva
to
and
she
began
arrange
the
sale
arrest,
by
About a week after this
Oliva
[Post]
and
told
she
acting
that
Guess
wanted
an
ultimately
that
to
as
go
she
was
directly
through [Guess] to purchase meth[].

To put the relationship between Oliva, Post, and Guess
in
context,
Norfolk
the
Police
Government
presented
expert
Investigator
Nicholas
Marcus.
testimony
from
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
challenges
to
the
conspiracy
charge
court
subsequently
sufficiency
and
the
two
of
the
rejected
evidence
924(c)(1)
as
Guesss
to
convictions.
the
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 Guesss conviction on Count Ten.

Guesss criminal history and an obstruction of justice
enhancement yielded a Guidelines range of 97 to 121 months for
Counts One through Six and Nine.
a
mandatory
360
month
Guidelines sentence.
sentence,
Counts Seven and Eight carried

to
run
consecutive
to
the
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.
prove conspiracy, the Government must establish that:
5
To
(1) an
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 jurys finding of a conspiracy must be sustained
if there is substantial evidence, taking the view most favorable
to the Government, to support it.
(quoting Glasser
v.
United
States,
Burgos, 94 F.3d at 862

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
As noted above, the jury convicted Guess of a criminal

conspiracy with three different objects.
Although we have
serious reservations regarding the jurys 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, 5657 (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 Governments evidence merely
established that Guess and Post had a buyer-seller relationship,
not a conspiratorial agreement.
showing
establish
buyer-seller
a
Generally speaking, evidence
relationship
drug-distribution
is
not
conspiracy.
alone
enough
to
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 Olivas behalf.
Oliva described Post as a[n]
in-between for this drug transaction.

7
Post played a critical
role because, as the Governments 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 Olivas
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 Guesss
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,
sentence
under
Guess
18
challenges
U.S.C.
his
924(c)(1).
second
That
conviction
statute
and
imposes
severe penalties on any person who, during and in relation to

any
. . .
drug
trafficking
crime[,]
. . .
uses
or
carries
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.
sentences
These
of
convictions
five
and
triggered
twenty-five
consecutive
years.
See
mandatory
18
U.S.C.
924(c)(1)(A)(i), (C)(i).
Guess contends that he could not have been convicted
and
sentenced
possessed
for
the
Specifically,
second
two
firearms
Guess
argues
924(c)(1)
offense
and
the
drugs
that
his
second
because
he
simultaneously.
conviction
is
multiplicitous because the evidence supports only a single

offense.
Cir. 2012).
Double
See United States v. Thomas, 669 F.3d 421, 425 (4th

The rule against multiplicity is rooted in the
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,
675 F.3d 300, 313 (4th Cir. 2012).
We review Guesss 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)
each
convictions
because
underlying predicate offense.
related
to
separate
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 Guesss 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
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 posttrial.
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 Guesss person related to
the prearranged sale to Oliva, while the drugs found in Guesss
truck related to a future distribution.
precedent,
the
separate
underlying
Accordingly, under our
predicate
offenses
support
Guesss two 924(c)(1) convictions. 3
Although we affirm Guesss 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
Guesss 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

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

May 15, 2012

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC

Unpublished opinions are not binding precedent in this circuit.

After the ensuing trial, a jury convicted Guess of ten firearm

The court imposed a sentence of

convictions and the resulting sentence.

For the reasons that

Under police supervision,

apartment to complete the sale.

approached the apartment, however, Guess called Oliva to inform

resistance, placed him under arrest.

A search of Guesss person

revealed a loaded Smith and Wesson semi-automatic pistol, $1100

A subsequent search of the truck uncovered a

The officers also found keys

pills, 135 oxycodone pills, and various drug paraphernalia.

violation of 21 U.S.C. 846, with three objects: (i) to possess

house, and (iii) to use a communication facility to commit a

distribute the meth found on Guesss person, in violation of 18

Counts Three through Six charged possession with

intent to distribute each of the four drugs found in Guesss

Counts Seven and Eight charged Guess with possessing and

using a firearm in furtherance of a drug trafficking offense, in

Finally, Counts Nine and

Ten charged Guess with being a felon in possession of a firearm,

through her roommate, Kristin Post.

On one occasion, Oliva saw

On another occasion, at Olivas

Post and Guess set up the transaction,

which took place at Olivas apartment.

About a week after this

through [Guess] to purchase meth[].

Marcus explained that because this local meth community is a

parties without some type of assurance.

testified that while in Western Tidewater Regional Jail, Guess

According to this testimony, Guess offered to

pay $5000 to have it done.

Ultimately, the jury convicted Guess on all counts.

Guess committed all three objects of the conspiracy charged in

Under Counts Seven and Eight, the jury found that

Guess violated both the use and possession prongs of 924(c).

court agreed, however, that Guess could not be convicted of both

court vacated Guesss conviction on Count Ten.

Counts Seven and Eight carried

See 18 U.S.C. 924(c)(1)(A)(i), (C)(i).

agreement to [possess meth with an intent to distribute meth]

United States v. Burgos, 94

F.3d 849, 857 (4th Cir. 1996) (en banc). 1

the crime of conspiracy is an agreement to effectuate a criminal

Id. at 857 (citation omitted).

conspiracy is by nature clandestine and covert, there rarely

is usually proven by circumstantial evidence.

Burgos, 94 F.3d at 862

[S]ubstantial evidence is evidence that a reasonable finder of