United States v. Lacy ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-5-2006
    USA v. Lacy
    Precedential or Non-Precedential: Precedential
    Docket No. 05-1913
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 05-1913
    UNITED STATES OF AMERICA
    v.
    MICHAEL LACY,
    Appellant
    Appeal from the United States District Court
    for the District of Delaware
    (D.C. Criminal No. 01-cr-00037)
    District Judge: Honorable Joseph J. Farnan, Jr.
    Argued March 7, 2006
    Before: RENDELL and AMBRO, Circuit Judges,
    and SHAPIRO, District Judge*
    (Filed May 5, 2006)
    * Honorable Norma L Shapiro, Senior District Court Judge
    for the Eastern District of Pennsylvania, sitting by
    designation.
    Penny Marshall [ARGUED]
    Office of Federal Public Defender
    704 King Street
    First Federal Plaza, Suite 110
    Wilmington, DE 19801
    Counsel for Appellant
    Shannon T. Hanson [ARGUED]
    Office of the U. S. Attorney
    1007 Orange Street, Suite 700
    Wilmington, DE 19899
    Counsel for Appellee
    OPINION OF THE COURT
    RENDELL, Circuit Judge.
    Defendant Michael Lacy was charged with possession
    with intent to distribute five grams or more of a substance
    containing a detectable amount of cocaine base, or crack
    cocaine, in violation of 21 U.S.C. § 841(a) and (b). A jury
    acquitted him of the charged offense, but convicted him of two
    lesser included offenses, simple possession of more than five
    grams of cocaine base, in violation of 21 U.S.C. § 844, and
    possession with intent to distribute an unspecified amount of
    2
    cocaine base, in violation of 21 U.S.C. § 841(a)(1).
    On appeal, Lacy asks us to vacate his simple possession
    conviction, raising several claims to the effect that his
    conviction on more than one lesser included offense arising out
    of the same charge was improper. We conclude that none of
    Lacy’s claims provides a proper basis for reversal.
    Accordingly, we will affirm.
    I.
    Michael Lacy was arrested by the Wilmington, Delaware
    Police on June 19, 2001, in a Wilmington apartment. The
    police recovered from his pocket a small plastic bag that
    contained several individually wrapped small chunks, weighing
    1.85 grams, of a white substance that was later determined to be
    a mixture containing cocaine base, or crack cocaine. They
    seized two more plastic bags from the bathroom of the
    apartment. One contained a large chunk of the substance,
    weighing 3.24 grams, and the other contained several more
    individually wrapped smaller chunks, weighing a total of 1.66
    grams. Thus, the police recovered a total of 6.75 grams of crack
    cocaine on Lacy’s person and in the bathroom.
    Lacy was charged, in an indictment, with possessing with
    intent to distribute five grams or more of a mixture or substance
    containing cocaine base in violation of 21 U.S.C. § 841(a)(1)
    and (b). Before trial, the government asked the District Court
    to include three lesser included offenses in the jury charge and
    on the verdict form. Lacy objected, contending that drug type
    and quantity are not elements of the offense, but are, instead,
    3
    “sentencing factors” under 21 U.S.C. § 841. The District Court
    disagreed with Lacy, and, accordingly, instructed the jury
    orally, and in a written verdict form, that if the jury found that
    Lacy was not guilty of the indicted offense, it could consider
    whether he was guilty of (1) possession with intent to distribute
    an unspecified amount of cocaine base in violation of 21 U.S.C.
    § 841(a)(1), and (2) simple possession of more than five grams
    of cocaine base, in violation of 21 U.S.C. § 844. If the jury
    found Lacy not guilty of both of these offenses, it was instructed
    to consider whether he was guilty of a third alternative offense,
    simple possession of an unspecified amount of cocaine base.
    The jury found Lacy not guilty of possession with intent to
    distribute five grams of cocaine base, but found him guilty of
    both possession with intent to distribute an unspecified amount
    of cocaine base and simple possession of more than five grams
    of cocaine base.
    After trial, Lacy moved for judgment of acquittal
    pursuant to Federal Rule of Criminal Procedure 29(c), arguing
    that the evidence did not support verdicts on both lesser
    included offenses, that the jury verdict violated double jeopardy
    principles and that simple possession of cocaine base is not a
    lesser included offense of a section 841(a) charge for possession
    with intent to distribute. The District Court denied the motion.
    Lacy now appeals.
    II.
    Our jurisdiction to consider Lacy’s appeal from the
    District Court’s final order of conviction arises under 18 U.S.C.
    § 1291. We exercise plenary review over an appeal from the
    4
    grant or denial of a motion for judgment of acquittal, applying
    the same standard as the district court to the individual claims.
    United States v. Brodie, 
    403 F.3d 123
    , 133 (3d Cir. 2005).
    Thus,
    we must view the evidence in the light most
    favorable to the verdict, and must presume that
    the jury has properly carried out its functions of
    evaluating credibility of witnesses, finding the
    facts, and drawing justifiable inferences. A
    verdict will be overruled only if no reasonable
    juror could accept the evidence as sufficient to
    support the conclusion of the defendant’s guilt
    beyond a reasonable doubt.
    United States v. Coleman, 
    811 F.2d 804
    , 807 (3d Cir. 1987)
    (quoting United States v. Campbell, 
    702 F.2d 262
    , 264 (D.C.
    Cir. 1983)).
    III.
    Lacy urges us to overturn his simple possession
    conviction, arguing (1) that the Federal Rules of Criminal
    Procedure do not permit conviction for more than one lesser
    included offense arising out of a single charged offense, (2) that
    simple possession is not a lesser included offense of possession
    with intent to distribute, (3) that his convictions violate the
    Double Jeopardy Clause of the Constitution and (4) that the
    evidence presented was insufficient to support his conviction of
    both the simple possession and the possession with intent to
    distribute offenses. We address these claims in turn.
    5
    A.     Federal Rule of Criminal Procedure 31(c)
    Federal Rule of Criminal Procedure 31(c) provides: “A
    defendant may be found guilty of . . . an offense necessarily
    included in the offense charged.” Lacy argues that, because the
    rule is phrased in the singular, it prohibits conviction on more
    than one lesser included offense for each offense charged. If
    Congress and the Supreme Court had intended to allow multiple
    convictions for lesser included offenses under the rule, he
    contends, they would have said that a defendant may be found
    guilty of “offenses,” not “an offense,” “necessarily included in
    the offense charged.”
    We disagree that the rule is so limited, for several
    reasons. First, the advisory committee notes to Rule 31(c)
    indicate that the rule “is a restatement of existing law.”
    Specifically, the rule replaced the provision in the Act of June
    1, 1872 that stated that “‘in all criminal cases the defendant may
    be found guilty of any offence the commission of which is
    necessarily included in that with which he is charged in the
    indictment.’” Schmuck v. United States, 
    489 U.S. 705
    , 719
    (1989) (quoting Act of June 1, 1872, ch. 255, § 9, 17 Stat. 198)
    (emphasis added). The word “any” suggests that a defendant
    may be found guilty of several offenses other than that charged
    in the indictment, so long as all such offenses are “necessarily
    included” in the charged offense. Thus, the idea that a
    defendant may be convicted of multiple lesser included offenses
    arising out of a single charge in an indictment is rooted in the
    history of the rule; the change in the text from “any offence” to
    “an offense” does not appear to reflect a change in its meaning.
    6
    Second, Lacy has not advanced, and we cannot fathom,
    any principle that would prevent us from applying the rule
    according to this tradition. We are satisfied that defendants’
    rights are adequately protected by existing limitations on the
    application of the rule. The Supreme Court has adopted a test
    for determining when an offense is “necessarily included in the
    offense charged” under Rule 31(c):
    [O]ne offense is not “necessarily included” in
    another unless the elements of the lesser offense
    are a subset of the elements of the charged
    offense. Where the lesser offense requires an
    element not required for the greater offense, no
    instruction is to be given under Rule 31(c).
    
    Id. at 716.
    This test protects defendants’ rights by ensuring that
    they have “constitutionally sufficient notice” that they face
    conviction on all lesser included offenses. See 
    id. at 717-18.
    Further, the common law rule “bar[ring] conviction for both an
    offense and a lesser included offense arising from the same
    conduct,” Paul H. Robinson et al., 1 Crim. L. Defs. § 68(d)(2)
    (1984 & 2005 Supp.), neutralizes any potential prejudice to the
    defendant by prohibiting multiple lesser included offense
    convictions for the same acts. As long as these rules are
    satisfied, as they are here, see section III.B below, we see no
    reason not to allow multiple convictions for lesser included
    offenses on the same charged offense under Rule 31(c).
    Third, a finding that Rule 31(c) supports only a single
    lesser included offense conviction would require us, in cases
    where more than one lesser included offense satisfies the
    7
    Schmuck elements test, to develop some mechanism for
    selecting which offense should be charged. Lacy has not
    explained what criteria should guide this choice, and, because
    this issue has not been addressed in the case law, we would be
    arbitrarily creating such a test. We think the sounder practice is
    to conclude, consistent with the history of Rule 31(c), that all
    lesser included offenses that satisfy the test established by the
    Supreme Court may be charged simultaneously, and may
    support separate convictions, as long as the various lesser
    included offenses relate to different conduct, i.e., are not lesser
    included offenses of one another.
    B.     Lacy’s Lesser Included Offense Claim
    Lacy argues that simple possession of five or more grams
    of cocaine base, in violation of 21 U.S.C. § 844, is not
    “necessarily included in” the offense with which he was
    charged, possession with intent to distribute five or more grams
    of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b).
    We do not agree and, in fact, find that his convictions of both
    lesser included offenses fit well within the parameters described
    above.
    As noted above, an offense “necessarily included in the
    offense charged” under Federal Rule of Criminal Procedure
    31(c) “is one that does not require proof of any additional
    element beyond those required by the greater offense.” Gov’t of
    the Virgin Islands v. Joseph, 
    765 F.2d 394
    , 396 (3d Cir. 1985)
    (emphasis omitted). To resolve Lacy’s claim, then, we must
    compare the elements of the charged offense with those of the
    convicted offense.
    8
    We have addressed this question once before. In 1992,
    we noted, without further explanation, that “[t]he crime of
    simple possession under 21 U.S.C. § 844 is a lesser offense
    included within the offense of possession with intent to
    distribute under 21 U.S.C. § 841(a).” United States v. Frorup,
    
    963 F.2d 41
    , 42 (3d Cir. 1992) (citing United States v. Garcia-
    Duarte, 
    718 F.2d 42
    , 47 (2d Cir. 1982)).1 However, changes in
    the law regarding what constitutes an “element” of an offense,
    as a result of the Supreme Court’s opinion in Apprendi v. New
    Jersey, 
    530 U.S. 466
    (2000), require that we examine this issue
    anew.
    After Apprendi, “[o]ther than the fact of a prior
    conviction, any fact that increases the penalty for a crime
    beyond the prescribed statutory maximum must be submitted to
    a jury, and proved beyond a reasonable doubt.” 
    Id. at 490.
    Such
    facts are the “functional equivalent[s]” of “elements” of an
    aggravated offense that carries a higher statutory maximum
    penalty. 
    Id. at 494
    n.19. See also United States v. Barbosa, 
    271 F.3d 438
    , 452-53 (3d Cir. 2001) (explaining Apprendi). Thus,
    we held, in United States v. 
    Barbosa, 271 F.3d at 457
    , and
    United States v. Vazquez, 
    271 F.3d 93
    , 98 (3d Cir. 2001) (en
    banc), that drug identity and quantity must be treated as
    elements of a section 841 possession with intent to distribute
    offense when taking either factor into account increases the
    1
    Other courts of appeals disagreed, concluding that simple
    possession required proof of drug amount and type, while
    possession with intent to distribute did not. See United States v.
    Stone, 
    139 F.3d 822
    , 828-34, 836 (11th Cir. 1998) (collecting
    cases).
    9
    applicable statutory maximum. Although we have not
    previously discussed this issue in the context of a section 844
    simple possession offense, we conclude that applying Apprendi
    to that statute yields the same result that we reached with respect
    to section 841: drug identity and quantity should be considered
    the functional equivalents of elements of a simple possession
    offense when they increase a defendant’s maximum statutory
    sentence exposure.
    Lacy was charged with “knowingly possess[ing] with
    intent to distribute 5 grams or more of a mixture or substance
    containing a detectable amount of cocaine base, a Schedule II
    narcotic controlled substance, in violation of Title 21, United
    States Code, Sections 841(a)(1) and (b).” The statutory
    provision under which Lacy was charged in the indictment, 21
    U.S.C. § 841(a)(1), provides “it shall be unlawful for any person
    knowingly or intentionally–to manufacture, distribute, or
    dispense, or possess with intent to manufacture, distribute, or
    dispense, a controlled substance.” Thus, the elements of the
    base offense are (1) knowing or intentional (2) possession (3)
    with intent to distribute (4) a controlled substance.
    Lacy’s indictment did not just charge the base offense,
    however; it specified a particular drug type and amount. We
    apply the tests from Barbosa and Vazquez to determine whether
    those facts act as “elements,” or their equivalents, of the charged
    offense. Subsection 841(b), which is labeled “Penalties,” sets
    forth statutory sentencing ranges based on the type and amount
    of drug involved. The “default” or “catchall” sentence for a
    violation of 841(a)(1) is a term of imprisonment of not more
    than one year, as set forth in 21 U.S.C. § 841(b)(3). See
    10
    
    Barbosa, 271 F.3d at 457
    . By contrast, the maximum penalty
    for possession with intent to distribute an unspecified quantity
    of a mixture or substance containing cocaine base is 20 years,
    see 21 U.S.C. § 841(b)(1)(C),2 and the maximum penalty for
    possession with intent to distribute five grams or more of a
    mixture or substance that contains cocaine base is 40 years, 21
    U.S.C. § 841(b)(1)(B)(iii). Thus, in this case, both the drug type
    and amount serve to increase the maximum statutory penalty,
    and must be treated as “elements” of the offense. Effectively,
    then, the elements of the charged offense are (1) knowing or
    intentional (2) possession (3) with intent to distribute (4) five
    grams or more (5) of a mixture or substance containing cocaine
    base.
    Lacy was convicted of “possession of more than five (5)
    grams of cocaine base.” The basic elements of a simple
    possession offense are (1) knowing or intentional (2) possession
    (3) of a controlled substance. See 21 U.S.C. § 844 (“It shall be
    unlawful for any person knowingly or intentionally to possess
    a controlled substance . . . .”). Like section 841, however,
    section 844 provides a schedule of escalating penalties that
    depend on the drug type and amount. The basic penalty, as
    under section 841, is “a term of imprisonment of not more than
    one year.” 
    Id. The penalty
    for conviction of possession of more
    than five grams of a mixture or substance that contains cocaine
    base, however, is imprisonment for up to 20 years. As under
    section 841, the drug amount and quantity increase the statutory
    maximum penalty applicable to a simple possession conviction.
    2
    Cocaine and its derivatives are schedule II controlled
    substances. See 21 U.S.C. § 812, sched. II (a)(4).
    11
    Thus, the functional elements of the simple possession offense
    for which Lacy was convicted are (1) knowing or intentional (2)
    possession (3) of more than five grams (4) of a mixture or
    substance containing cocaine base.
    Comparing the elements of the two offenses, it is clear
    that the simple possession offense of which Lacy was convicted
    is a lesser included offense of the charged possession with intent
    to distribute offense. The only difference between the two
    offenses is that the section 841 offense requires proof of intent
    to distribute the drugs. The District Court therefore properly
    charged simple possession of more than five grams of cocaine
    base as a lesser included offense of possession with intent to
    distribute five grams or more of cocaine base.
    It is also clear that the second offense of which Lacy was
    convicted–which he does not challenge on appeal–is a lesser
    included offense of the charged offense. Possession with intent
    to distribute an unspecified quantity of cocaine base requires
    proof of a “subset” of the facts that must be proved to sustain a
    conviction for possession with intent to distribute five grams or
    more of cocaine base–everything except for the drug amount.
    Finally, although Lacy has not raised this as an issue, we
    note that the two offenses of which he was convicted are not
    lesser included offenses of each other, because each requires
    proof of a fact that the other does not. The simple possession
    conviction requires proof of the specific drug amount, while the
    possession with intent conviction requires proof of intent to
    distribute. Lacy was not convicted twice for the same conduct.
    12
    Thus, the District Court properly charged Lacy with, and
    the jury properly convicted him of, two separate lesser included
    offenses.
    C.     Double Jeopardy
    The Double Jeopardy Clause provides that no person
    shall “be subject for the same offence to be twice put in
    jeopardy of life or limb.” U.S. Const. amend. V. The Supreme
    Court, in North Carolina v. Pearce, 
    395 U.S. 711
    (1968)
    explained that the “constitutional guarantee against double
    jeopardy” consists of “three separate constitutional protections”:
    It protects against a second prosecution for the
    same offense after acquittal. It protects against a
    second prosecution for the same offense after
    conviction. And it protects against multiple
    punishments for the same offense.
    
    Id. at 717.
    The District Court analyzed and rejected Lacy’s
    challenge under the third category of protections, concluding
    that he was not being punished twice for the same offense. On
    appeal, Lacy repeatedly stresses that he is not pursuing a
    “separate offense” or “multiplicity” challenge because “he does
    not assert that the two convictions returned by the jury establish
    one violation,” Appellant’s Br. at 31; Appellant’s Reply Br. at
    18. Furthermore, he acknowledges that “possession with intent
    to distribute a controlled substance under 21 U.S.C. § 841(a) and
    possession of five grams or more of cocaine base under 21
    13
    U.S.C. § 844 constitute wholly separate proscriptions.”
    Appellant’s Br. at 31.
    Instead, Lacy appears to be raising two separate but
    related double jeopardy challenges. First, he argues that his
    convictions were improper because the jury effectively
    convicted him of the two lesser included offenses after it had
    acquitted him of the charged offense. Second, he claims that, by
    requesting the District Court to charge the jury on the two lesser
    included offenses, the prosecution improperly “‘divide[d] up a
    continuing crime into bits and prosecute[d] him separately for
    each.’” Appellant’s Br. at 25 (quoting United States v. Chagra,
    
    653 F.2d 26
    , 29 (1st Cir. 1981)). We can find no support for
    either of these claims.
    Lacy bases his first double jeopardy claim on Sanabria
    v. United States, 
    437 U.S. 54
    (1978). The question in that case
    was whether, after the defendant had been acquitted of an
    offense, the prosecution could subject the defendant to a
    subsequent trial on the same facts, under a slightly different
    legal theory. 
    Id. at 69-73.
    The Supreme Court held that it could
    not. 
    Id. at 74.
    Citing Sanabria, Lacy claims that his acquittal on
    the charged offense immunized him from “subsequent” charges
    on the lesser included offenses. See Appellant’s Br. at 26-27.
    The holding of Sanabria does not apply here. Lacy
    glosses over a crucial distinction, namely that, unlike the
    defendant in Sanabria, Lacy was convicted of the lesser
    included offenses in the same trial in which the jury acquitted
    him of the charged offense. None of the cases that Lacy cites,
    or that we could find, supports his view that Sanabria’s
    14
    subsequent prosecution theory of double jeopardy applies in
    cases involving convictions for lesser included offenses in the
    same proceedings.
    In fact, the Supreme Court has repeatedly noted that
    double jeopardy does not bar prosecution of related charges in
    the same proceeding. In Missouri v. Hunter, 
    459 U.S. 359
    (1983), for example, the Court concluded that, “[w]here . . . a
    legislature specifically authorizes cumulative punishment under
    two statutes, regardless of whether those two statutes proscribe
    the ‘same’ conduct . . . the prosecutor may seek and the trial
    court or jury may impose cumulative punishment under such
    statutes in a single trial.” 
    Id. at 368-69
    (emphasis added). In
    Sanabria, the Court clearly acknowledged that, although
    prosecutors could not bring a new trial against the defendant on
    different theories related to the same conduct, acquittal on one
    theory might not have barred conviction on the other if the
    theories had been charged in separate counts of a single
    
    indictment. 437 U.S. at 72-73
    . Finally, in Ohio v. Johnson, 
    467 U.S. 493
    (1984), the Court noted that the prosecution could not
    bring new charges where a defendant has already been acquitted
    or convicted on a lesser included offense, see 
    id. at 501
    (citing
    Brown v. Ohio, 
    432 U.S. 161
    (1977)), but held that the Double
    Jeopardy Clause did not bar a State from continuing a
    prosecution on greater offenses in the same proceeding in which
    the defendant had pleaded guilty to lesser included offenses
    charged in a single indictment. 
    Id. at 502.
    Following the Supreme Court’s lead, we decline to hold
    that “trial proceedings, like amoebae, are capable of being
    infinitely subdivided, so that a determination of guilt and
    15
    punishment on one count . . . immediately raises a double
    jeopardy bar to continued prosecution on any remaining counts
    that are greater or lesser included offenses of the charge just
    concluded.” 
    Id. at 501.
    Thus, the District Court did not violate
    Lacy’s rights under the Double Jeopardy Clause by allowing the
    jury to convict him of two lesser included offenses in the same
    trial in which the jury acquitted him of the charged offense.
    Lacy also contends that his conviction on separate
    offenses amounted to improperly dividing up a single “unit of
    prosecution” into pieces and convicting him separately of each
    piece. We disagree, and find his challenge ill-suited to the facts
    of this case. The central inquiry in a “unit of prosecution”
    challenge is whether the defendant has been charged, convicted
    and punished more than once for the same conduct. See United
    States v. Pollen, 
    978 F.2d 78
    , 85 (3d Cir. 1992) (quoting
    
    Sanabria, 437 U.S. at 70
    ) (question in “unit of prosecution” case
    is whether “‘a particular course of conduct involves one or more
    distinct offenses’”). As Lacy notes in his brief, “[i]t has long
    been the law that a prosecutor cannot divide a continuing crime
    into bits and prosecute separately for each.” United States v.
    Chagra, 
    653 F.2d 26
    , 29 (1st Cir. 1981), quoted in Appellant’s
    Br. at 25. Thus, a baker that baked four loaves of bread on a
    Sunday could only be convicted once under a statute that
    prohibited working on a Sunday, 
    id. (citing Crepps
    v. Durden,
    (1777) 98 Eng. Rep. 1283 (K.B.)), and the government could
    prosecute a man “only once for cohabiting for three years
    straight with more than one woman as his wife; it could not
    prosecute him three times, once for each year,” 
    id. at 30
    (citing
    In re Snow, 
    120 U.S. 274
    (1887)).
    16
    To determine whether a defendant was properly charged,
    convicted and punished separately for the same offense, we
    examine
    whether proof of one offense charged requires an
    additional fact that proof of the other offense does
    not necessitate. . . . Also of central importance is
    whether the legislature intended to make
    separately punishable the different types of
    conduct referred to in the various counts.
    
    Pollen, 978 F.2d at 85
    (quoting United States v. Stanfa, 
    685 F.2d 85
    , 87 (3d Cir. 1982)).
    The facts of this case do not raise “unit of prosecution”
    concerns. As noted above, each of the offenses of which Lacy
    was ultimately convicted required proof of a fact that the other
    did not. And Lacy himself acknowledges that he was not
    convicted of multiple counts of the same offense, but rather of
    single counts of each of two “wholly separate proscriptions.”
    Appellant’s Br. at 31. His two convictions do not dissect an
    otherwise continuing crime, but, rather, reflect two different
    types of conduct: simple possession of more than five grams of
    cocaine base, and possession with intent to distribute the
    remaining drugs. We will not disturb his convictions on this
    basis.
    D.     Sufficiency of the Evidence
    17
    As described above, the evidence presented at trial
    established Lacy’s possession of three bags of crack cocaine,
    with a total drug weight of 6.75 grams. Two of the bags
    contained individually wrapped chunks; the one found in the
    bathroom contained a total of 1.66 grams, and the one found in
    Lacy’s pocket contained 1.85 grams. The third bag, also found
    in the bathroom, contained a larger single chunk of crack
    cocaine that weighed 3.24 grams. Based on the verdict, we
    know that the jury concluded that Lacy did not intend to
    distribute five grams or more of the drugs. We also know that
    the jury believed that he possessed five grams or more of
    cocaine base, and that he possessed some unknown quantity
    with intent to distribute.
    Lacy argues, quite simply, that there aren’t enough drugs
    in evidence to support both of his convictions. In his view,
    “[t]here are only two logical manners in which a reasonable jury
    might divide” the evidence. Appellant’s Br. at 18. The first
    logical way to divide the evidence, he contends, would be to
    assume that the drugs found on Lacy’s person were intended for
    distribution, while those found in the bathroom were not. Under
    this scenario, Lacy would have possessed 1.85 grams for
    distribution and 4.9 grams for some purpose other than
    distribution. Alternatively, he argues, the jury could have
    assumed that Lacy intended to distribute the drugs that were
    wrapped up into smaller pieces. In that case, 3.51 grams of the
    drugs would support the possession with intent to distribute
    conviction, but only 3.24 grams would remain for the simple
    possession conviction. But under neither scenario could the jury
    simultaneously conclude that he intended to distribute a discrete
    quantity of drugs and that he possessed five grams or more of
    18
    drugs for some purpose other than distribution.
    We disagree, and decline Lacy’s invitation to guess
    which drugs the jury assigned to which conviction. The
    sufficiency of the evidence standard requires us to uphold
    convictions as long as “a reasonable jury believing the
    government’s evidence could find beyond a reasonable doubt
    that the government proved all the elements of the offenses.”
    United States v. Salmon, 
    944 F.2d 1106
    , 1113 (3d Cir. 1991).
    In this case, the government presented evidence that Lacy
    possessed 6.75 grams of cocaine base, more than enough drugs
    to support both convictions. We are satisfied that a reasonable
    jury could simultaneously have concluded that Lacy possessed
    five or more grams for some purpose other than distribution and
    that he possessed the residual amount with intent to distribute.
    The jury’s verdict was accordingly supported by sufficient
    evidence.
    IV.
    For the foregoing reasons, we reject Lacy’s claims and
    will affirm his convictions.
    19