United States v. Deas , 401 F. App'x 737 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR TERRELL DEAS, a/k/a Terrell Omar Deas, a/k/a Ernest
Watson,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cr-01031-DCN-1)
Submitted: November 9, 2010 Decided: December 1, 2010
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Matthew J. Modica,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Omar Terrell Deas was convicted of possession with
intent to distribute five grams or more of cocaine base, 21
U.S.C. §§ 841(a), (b)(1)(B) (2006) (Count One), possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c) (2006) (Count Two), and possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count Three). He
was sentenced to an aggregate term of 180 months in prison.
Deas now appeals. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), claiming that there
was insufficient evidence to support the convictions on Counts
One and Two but stating that there are no meritorious issues for
appeal. Deas was advised of his right to file a pro se
supplemental brief but has not filed such a brief.
When reviewing a claim of insufficient evidence, we
consider whether the evidence, when viewed in the light most
favorable to the Government, was sufficient for a rational trier
of fact to have found the essential elements of the crime beyond
a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Cameron, 573 F.3d 179, 183 (4th Cir.
2009). We must sustain a verdict supported by substantial
evidence. Glasser, 315 U.S. at 80. We do not review the
credibility of witnesses, and we assume the jury resolved all
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contradictions in the testimony in favor of the Government.
United States v. Sun, 278 F.3d 302, 312 (4th Cir. 2002).
In order to establish a violation of § 841(a)(1), the
Government must prove beyond a reasonable doubt: “(1)
possession of the controlled substance; (2) knowledge of the
possession; and (3) intent to distribute.” United States v.
Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009); see United States
v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).
Possession may be actual or constructive. United States v.
Rusher, 966 F.2d 868, 878 (4th Cir. 1992). “A person may have
constructive possession of contraband if he has ownership,
dominion, or control over the contraband or the premises or
vehicle in which the contraband was concealed.” United States
v. Herder, 594 F.3d 352, 358 (4th Cir.), cert. denied, 130 S.
Ct. 3440 (2010). Intent to distribute may be inferred if the
amount of drugs found exceeds an amount normally associated with
personal consumption. United States v. Wright, 991 F.2d 1182,
1187 (4th Cir. 1993).
We hold that the evidence was sufficient to convict
Deas on Count One. A deputy testified that he stopped the car
Deas was driving because of a traffic violation. When the
deputy asked for paperwork on the car, Deas opened the glove box
but positioned his body so that the deputy could not see what
was inside. This abnormal behavior alarmed the deputy, who
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testified that, although most of his view was obstructed, he was
able to observe a piece of a plastic bag inside the glove box.
The deputy testified that Deas appeared to be
extremely nervous. For instance, his left leg was shaking
badly. After ascertaining that Deas’ paperwork was valid, the
deputy asked Deas to walk to the rear of the car. Deas
complied, but so slowly that the deputy concluded he was
stalling. Deas denied having marijuana or cocaine in the car.
When the deputy asked if the car contained crack cocaine, Deas
did not respond. Instead, he looked down and appeared afraid.
The deputy repeated the question, and Deas denied the presence
of crack. The deputy then inquired whether there were guns in
the vehicle. Deas began nervously slapping his hands against
the trunk of the car and making rambling statements.
During a pat-down search for weapons, Deas attempted
to shield his right side from the deputy. The deputy reached
for Deas’ right side and felt a hard object, which he assumed
was a gun. Realizing that the deputy had touched the object,
Deas swung his arm, striking the deputy, and fled. He was
quickly apprehended, and officers found a handgun under his
body. Deas then confessed that the car contained crack cocaine.
It was stipulated that the gun had traveled in
interstate commerce, the crack recovered from the car weighed
13.43 grams, and Deas was a convicted felon. There was
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testimony that possession of ten or more grams of crack suggests
drug trafficking.
Based on this evidence, we hold that there was
sufficient evidence to support Deas’ conviction on Count One.
He had dominion and control over the car, which contained crack.
His knowledge of the drug’s presence is established by his
confession that crack was in the car’s glove box. Finally, his
intent to distribute may be inferred from the amount of crack
discovered.
To establish a violation of 18 U.S.C. § 924(c), the
Government must establish that the defendant “during and in
relation to any crime of violence or drug trafficking crime
. . . use[d] or carrie[d] a firearm” or possessed a firearm “in
furtherance of any such crime.” 18 U.S.C. § 924(c). We hold
that the evidence also was sufficient to sustain Deas’
conviction on Count Two. The jury could have inferred that the
gun was the object that the deputy felt in Deas’ pocket;
further, the gun was found under his person when he was
apprehended. He clearly possessed the gun.
Whether a firearm furthered, advanced, or helped
forward a drug trafficking crime is a question of fact. United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Many
factors might lead a reasonable trier of fact to find a
connection between a defendant’s possession of a weapon and a
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drug trafficking crime. These include: “the type of drug
activity that is being conducted, accessibility of the firearm,
the type of weapon, whether the weapon is stolen, the status of
the possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the time and
circumstances under which the gun is found.” Id. (internal
quotation marks omitted).
Deas, a convicted felon, illegally possessed the gun.
Further, the gun was on Deas’ person in close proximity to the
crack in the car’s glove box. These factors establish that the
possession was in furtherance of the underlying drug offense.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. This court requires that counsel inform her client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy was served on the client. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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