United States v. Squirewell , 346 F. App'x 959 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5127
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELZIN SQUIREWELL,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Margaret B. Seymour, District
Judge. (0:07-cr-00664-MBS-1)
Submitted: September 30, 2009 Decided: October 13, 2009
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Robert C. Jendron, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelzin Squirewell appeals his jury convictions and
resulting 180-month sentence for possession a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006)
(“Count Two”); possession with intent to distribute five grams
or more of crack cocaine, a quantity of cocaine, and marijuana,
in violation of 21 U.S.C. § 841 (2006) (“Count Three”); and
possession of a firearm during and in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006) (“Count Four”). Finding no reversible error, we affirm.
Squirewell first argues that the evidence was
insufficient to sustain his convictions on the firearms counts –
Counts Two and Four. “In reviewing the sufficiency of the
evidence following a conviction, this court views ‘the evidence
and the reasonable inferences to be drawn therefrom in the light
most favorable to the Government.’” United States v. Lomax,
293 F.3d 701, 705 (4th Cir. 2002) (quoting United States v.
Burgos, 94 F.3d 849, 863 (4th Cir. 1996)). This court “can
reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye,
454 F.3d 390, 394 (4th Cir. 2006) (internal quotations and
citation omitted). Rather, a verdict will be sustained if “‘any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Lomax, 293 F.3d at
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705 (quoting United States v. Meyers, 280 F.3d 407, 415
(4th Cir. 2002)).
In support of his first argument, Squirewell maintains
that the evidence was insufficient to establish his constructive
possession of the firearm found under the rear passenger seat of
his Ford Expedition. “Constructive possession exists when the
defendant exercises, or has the power to exercise, dominion and
control over the item,” United States v. Laughman, 618 F.2d
1067, 1077 (4th Cir. 1980), and has knowledge of the item’s
presence. United States v. Bell, 954 F.2d 232, 235 (4th Cir.
1992), overruled on other grounds, Burgos, 94 F.3d at 862.
“Knowledge may be inferred from possession, that is, dominion
and control over the area where the contraband is found.”
United States v. Lochan, 674 F.2d 960, 966 (1st Cir. 1982).
The evidence, viewed in the light most favorable to
the Government, was sufficient to establish Squirewell’s
constructive possession of the firearm. Squirewell, who was a
co-owner of the vehicle, had access to the vehicle and retrieved
the electronic door opener when officers asked to search the
vehicle. Rather than open the driver’s door, Squirewell went
immediately to the passenger door on the driver’s side and
announced that there was a gun in the vehicle. From
Squirewell’s vantage point, the firearm was not visible as the
gun could only be seen if an observer bent over and looked under
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the seat. These circumstances adequately established
Squirewell’s knowledge of the firearm. Moreover, Squirewell
admitted that he had purchased drugs found in a cigar box next
to the firearm sometime during the early morning hours of
February 8, 2008. The jury could infer from this fact that
Squirewell had placed both the drugs and the gun under the seat
or, at the least, that Squirewell was aware of the firearm when
he hid the drugs in the same location. Accordingly, the
evidence was sufficient to sustain Squirewell’s conviction on
Count Two.
Squirewell also argues that the evidence was
insufficient to sustain his conviction on Count Four. To
establish a violation of § 924(c), the Government must prove
that the firearm “furthered, advanced or helped forward a drug
trafficking crime.” Lomax, 293 F.3d at 705. Factors that might
lead a reasonable trier of fact to conclude that the requisite
nexus existed between the firearm and the drug offense include:
(1) the type of drug activity that is being conducted; (2)
accessibility of the firearm; (3) the type of weapon; (4)
whether the gun is loaded; (5) proximity to drugs or drug
profits; and (6) the time and circumstances under which the gun
is found. Id.Here, the evidence was sufficient to sustain
Squirewell’s § 924(c) conviction. The Government presented
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evidence that Squirewell constructively possessed the firearm.
The types and amounts of the various drugs found in the cigar
box in Squirewell’s vehicle indicated that Squirewell was a
dealer, and Squirewell admitted that the cocaine in the cigar
box was what remained after selling approximately two ounces.
The gun was discovered on the same day that Squirewell admitted
to purchasing four ounces of cocaine and selling two of those
ounces, and the gun was in such close proximity to the cigar box
that it was touching the box. This evidence was sufficient for
a rational fact finder to have found the essential elements of
§ 924(c) beyond a reasonable doubt.
Finally, Squirewell argues that the district court
erred in imposing a consecutive five-year mandatory minimum
sentence based on his conviction on Count Four. We review for
plain error because Squirewell failed to object below. United
States v. Olano, 507 U.S. 725, 732 (1993). Plain error requires
a finding that: (1) there was error; (2) the error was “plain;”
and (3) the error affected his substantial rights. Id. If the
three elements of this standard are met, this court may still
exercise its discretion to notice the error only “if the error
seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id.Section 924(c)(1)(A), in relevant part, provides for a
mandatory minimum sentencing schedule, “[e]xcept to the extent
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that a greater minimum sentence is otherwise provided by this
subsection or any other provision of law . . .” In light of
this clause, Squirewell argues that the district court erred in
imposing the five-year sentence because he was already subject
to a ten-year mandatory minimum sentence due to his conviction
on Count Three and a prior drug distribution conviction.
Squirewell concedes, however, that the argument he advances was
rejected by this court in United States v. Studifin, 240 F.3d
415 (4th Cir. 2001). Accordingly, the district court did not
err in imposing a five-year consecutive sentence.
We therefore affirm Squirewell’s convictions and
sentence. We dispense with oral argument as the facts and
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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