United States v. Schuler D. Cox ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4604
SCHULER D. COX,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-98-39)
Submitted: August 26, 1999
Decided: October 19, 1999
Before ERVIN,* WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Janipher W. Robinson, ROBINSON & GREENE, Richmond, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
_________________________________________________________________
*Judge Ervin was assigned to the panel in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a bench trial, Schuler D. Cox was convicted on several
drug and firearms charges. He appeals, contending that there was an
improper foundation for a police officer's expert testimony, there was
insufficient evidence to support his convictions of possession with
intent to distribute crack cocaine and carrying a firearm during and in
relation to a drug trafficking crime, and that the district court erred
during sentencing by failing to award him credit for acceptance of
responsibility. Finding no merit to his claims, we affirm.
On December 4, 1997, Richmond City police officers stopped to
question Cox and a few other people gathered around a car after the
officers smelled marijuana. Cox, who was sitting on the car, acknowl-
edged it was his. Officers arrested him after spotting a partially-
smoked marijuana cigarette in the car's ashtray. Cox told the officers
that he did not have the car keys, but then the keys fell from his per-
son and the officers were able to gain access to the car. In addition
to the marijuana cigarette, officers found a loaded handgun between
the armrests of the front seat. Cox explained that he kept the gun for
protection. In the car's trunk, officers found a 4.6 gram bag of mari-
juana, 0.124 grams of crack cocaine, and a safe containing a mirror
with white residue on it. The officers also searched Cox and found a
1.442 rock of crack cocaine in his coat pocket and a pager. Cox was
convicted on one count of possession with intent to distribute crack
cocaine, in violation of 21 U.S.C.A. § 841 (West 1981 & Supp.
1999); possession of crack cocaine, in violation of 21 U.S.C.A. § 844(West Supp. 1999); possession of marijuana, in violation of 21
U.S.C.A. § 844 (West Supp. 1999); carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c) (West Supp. 1999); and possession of a firearm and ammuni-
tion by a controlled substance user, in violation of 18 U.S.C.A.
§ 922(g)(3) (West Supp. 1999).
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On appeal, Cox first claims that the Government failed to provide
a sufficient foundation to allow a police officer to testify that the
quantity of cocaine found in Cox's coat pocket, along with the pager,
the gun, and safe containing a mirror and white residue, indicated that
Cox was engaged in drug dealing rather than merely personal use of
crack cocaine. The officer testified that he received specialized train-
ing at a drug investigative school and was involved in numerous drug
arrests which taught him what is consistent with personal drug use
rather than drug distribution.
Cox's discontent with the substance of the officer's testimony
ignores the plain language of Fed. R. Evid. 702, which allows for an
expert to testify as to his specialized knowledge in a given area if the
testimony will "assist the trier of fact to understand the evidence or
to determine a fact in issue." Fed. R. Evid. 702. Expert testimony
about common practices of drug dealers is routinely admitted in drug
cases in order to help the trier of fact understand the mechanics of
drug trafficking. See, e.g., United States v. Gastiaburo, 16 F.3d 582,
588-89 (4th Cir. 1994). We find that the district court acted within its
discretion in allowing the officer's testimony. See Kopf v. Skyrm, 993
F.2d 374, 378 (4th Cir. 1993).
Next, Cox argues that the evidence was insufficient to support his
convictions for possession of crack cocaine with intent to distribute
in violation of 21 U.S.C.A. § 841(a)(1) and carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c). When reviewing sufficiency of the evidence, the trial verdict
"must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942).
The essential elements of possession with intent to distribute under
§ 841(a)(1) are: (1) knowing and intentional possession; (2) with the
intent to distribute. See United States v. Nelson, 6 F.3d 1049, 1053
(4th Cir. 1993). We find that the size of the rock of crack cocaine
found in Cox's pocket and the pager, along with the safe containing
a mirror and some residue, all of which a police officer testified were
consistent with drug distribution rather than personal use, plus the fact
that Cox lied about having car keys when officers sought access to his
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car, provide substantial evidence to support the verdict. See United
States v. Lamarr, 75 F.3d 964, 973 (4th Cir. 1996).
To sustain a conviction under § 924(c), the Government must prove
that the defendant (1) used or carried a firearm, and (2) did so during
and in relation to a drug trafficking offense. See United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997)."A firearm is carried `in
relation' to a drug trafficking crime if it has`some purpose or effect
with respect to the drug trafficking crime and if its presence was not
the result of accident or coincidence.'" Id. at 654 (quoting Smith v.
United States, 508 U.S. 223, 238 (1993)).
Cox admitted that he kept the gun for protection. The evidence
showed that he was engaged in crack distribution and that much of
the evidence was found in the same vehicle as the gun. We find this
evidence sufficient to support Cox's conviction.
Finally, Cox argues that the district court should have reduced his
offense level by two levels for acceptance of responsibility. The two
level adjustment for acceptance of responsibility is available only
where the defendant does not go to trial, unless he goes to trial to
assert and preserve issues that do not relate to factual guilt, such as
the constitutionality of a statute or the applicability of a statute to his
conduct. See U.S. Sentencing Guidelines Manual § 3E1.1(a) & com-
ment. (n.2) (1997). Here, Cox refused to admit at trial that he intended
to distribute drugs and that he carried a firearm during and in relation
to a drug trafficking offense, thereby requiring the Government to
prove these matters at trial. The issues he sought to raise by means
of a trial therefore related to factual guilt. Under these circumstances,
the district court did not clearly err by finding that the reduction for
acceptance of responsibility did not apply.
For these reasons, we affirm Cox's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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