United States v. Turner ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4262
PAM TURNER, a/k/a Pamela M.
Turner,
Defendant-Appellant.
Appeal from the United States District Court for the
District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-94-238)
Submitted: December 2, 1997
Decided: December 24, 1997
Before NIEMEYER and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Suzanne E. Coe, ARNOLD & COE, L.L.P., Greenville, South Caro-
lina, for Appellant. J. Rene Josey, United States Attorney, Harold W.
Gowdy, III, Assistant United States Attorney, Greenville, South Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Pam Turner was convicted of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994), and using
and carrying a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C.A. § 924(c) (West Supp. 1997). She
was sentenced to 180 months imprisonment for the first count, and
sixty months for the second count, to be served consecutively. On
appeal, Turner asserts that the evidence was insufficient to support
her conviction under § 924(c), in light of the Supreme Court's deci-
sion in Bailey v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S.
Dec. 6, 1995) (Nos. 94-7448, 94-7492). We find the evidence suffi-
cient, and affirm the conviction.
On December 3, 1993, Pam Turner drove from Athens, Georgia to
Anderson, South Carolina. Carlos Cox and Turner's brother, William
Oglesby,* were passengers in the car. Cox testified at trial that he saw
a 9mm pistol on the floor of the passenger side. In Anderson, Turner
rented a car under a different name, and the trio drove to Greenville,
South Carolina. Cox again saw the 9mm pistol, and a black pouch he
believed was Turner's.
In Greenville the group went to Turner's apartment. Cox saw Tur-
ner put what looked like cocaine in the black pouch. Turner carried
a Crown Royal bag and the black pouch from her apartment to the
car. On the way back to Anderson, Turner stopped at a record store,
where she got into a dispute about a debt. The police were called, and
arrested Cox and Oglesby, but Turner stole a car and fled. She
remained a fugitive for over a year before being arrested under
another name. During that period she told a friend that she had lost
half a kilogram of cocaine in Greenville.
_________________________________________________________________
*Oglesby was deceased by the time of Turner's trial.
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Police inventoried the vehicle abandoned at the record store. They
found a Crown Royal bag between the driver's seat and the passen-
ger's seat, containing 183 grams of crack cocaine wrapped in small
plastic bags. Police also discovered a loaded Glock 9mm pistol up
under the edge of the driver's seat, and a loaded H & R .32 caliber
revolver under the edge of the passenger seat. Another loaded maga-
zine for the Glock was in the glove compartment. Police found a set
of digital scales between the driver's and front passenger's seats. The
car also contained a small legal notepad and a leather pouch with over
$8000 in cash. The jury convicted Turner of possession with intent to
distribute cocaine base and using or carrying a firearm during and in
relation to a drug trafficking crime.
The only issue Turner raises on appeal is the sufficiency of the evi-
dence to support her conviction under 18 U.S.C.§ 924(c). We must
sustain the verdict if there is substantial evidence, viewed most favor-
ably to the government, to support it. Glasser v. United States, 315
U.S. 60, 80 (1942). We consider circumstantial as well as direct evi-
dence, and allow the government the benefit of all reasonable infer-
ences from the facts proved to the facts sought to be established.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
To support a conviction under § 924(c), the government must
prove: (1) that the defendant used or carried a firearm; and (2) that
she did so during and in relation to a drug trafficking offense. Smith
v. United States, 508 U.S. 223, 227-28 (1993). In Bailey, the Supreme
Court held that "use" means an active employment of the firearm,
making the firearm an operative factor in the crime. Bailey, 64
U.S.L.W. at 4041. The evidence here does not support conviction
under that prong. The guns were in the front of the car as Turner
transported drugs, cash, and paraphernalia, but were not brandished,
displayed, bartered, or fired. Id. at 4042.
The evidence was sufficient, however, to support a conviction
under the "carry" prong of the statute. This term requires "knowing
possession and bearing, movement, conveyance, or transportation of
the firearm in some manner." United States v. Mitchell, 104 F.3d 649,
653 (4th Cir. 1997). Knowing possession and transportation in a vehi-
cle provides adequate support for this element of the offense. Id. at
654. The crack cocaine, scales, cash, and notebook provide adequate
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evidence that the weapons were carried during and in relation to a
drug trafficking offense. Therefore, the evidence was sufficient to
support Turner's conviction under § 924(c).
We affirm Turner's conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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