United States v. Green , 337 F. App'x 269 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4824
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    STERLING VERNARD GREEN,
    Defendant – Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.   Terry L. Wooten, District Judge.
    (4:06-cr-01322-TLW)
    Submitted:    May 18, 2009                    Decided:   July 7, 2009
    Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    David B. Betts, Columbia, South Carolina, for Appellant. Alfred
    William Walker Bethea, Jr., Assistant United States Attorney,
    Florence, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Following a four-day trial, Sterling Vernard Green was
    convicted by a jury of conspiracy to possess with the intent to
    distribute and to distribute 50 grams or more of cocaine base,
    in   violation     of      
    21 U.S.C. §§ 841
    (a)(1),      841(b)(1)(A),           846
    (2000), and possession with the intent to distribute 5 grams or
    more of cocaine base, in violation of 
    21 U.S.C. § 841
    (a)(1).
    The district court sentenced Green to concurrent terms of 252
    months’    imprisonment.          On    appeal,    counsel   has     filed     a   brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), stating
    that there are no meritorious issues for appeal, but questioning
    whether    the   district       court    erred    in   denying     Green’s     Fed.    R.
    Crim. P. 29 motion for judgment of acquittal.                       Green has also
    filed a pro se supplemental brief.                Finding no error, we affirm.
    Rule 29 of the Federal Rules of Criminal Procedure
    provides    that      a    district     court     must   enter      a    judgment      of
    acquittal     where       the   evidence    is     insufficient         to   sustain    a
    conviction.        Fed. R. Crim. P. 29(a).                We review a district
    court’s denial of a Rule 29 motion for judgment of acquittal de
    novo.      E.g.,    United      States     v.    Perkins,    
    470 F.3d 150
    ,     160
    (4th Cir. 2006).          “In conducting such review, we must uphold a
    jury verdict if there is substantial evidence, viewed in the
    light most favorable to the Government, to support it.”                                
    Id.
    Substantial evidence is “evidence that a reasonable finder of
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    fact    could          accept         as    adequate        and     sufficient       to    support   a
    conclusion of a defendant’s guilt beyond a reasonable doubt.”
    United States v. Burgos, 
    94 F.3d 849
    , 862 (4th Cir. 1996) (en
    banc).        Further, both direct and circumstantial evidence are
    considered,            and    the       government          is    permitted      “all      reasonable
    inferences that could be drawn in its favor.”                                   United States v.
    Harvey, 
    532 F.3d 326
    , 333 (4th Cir. 2008).                                   The defendant “must
    carry        an        imposing            burden     to      successfully           challenge      the
    sufficiency of the evidence.”                         United States v. Martin, 
    523 F.3d 281
    , 288 (4th Cir. 2008) (citation omitted), cert. denied, 
    129 S. Ct. 238
     (2008).
    To     prove         conspiracy           to      possess     with      intent     to
    distribute and to distribute cocaine base, the government must
    establish          beyond         a    reasonable           doubt    that:     (1)     two   or    more
    persons       agreed         to       possess       with     intent     to    distribute      and    to
    distribute the cocaine base; “‘(2) the defendant knew of the
    conspiracy;            and    (3)       the      defendant        knowingly      and      voluntarily
    became a part of this conspiracy.’”                               United States v. Yearwood,
    
    518 F.3d 220
    , 225-26 (4th Cir. 2008) (quoting Burgos, 
    94 F.3d at 857
    ), cert. denied, 
    129 S. Ct. 137
     (2008).                                   The “gravamen of the
    crime is an agreement to effectuate a criminal act.”                                       
    Id. at 226
    (internal quotation marks and alteration omitted).                                        A defendant
    may     be        convicted           of     conspiracy           without      knowing       all    the
    conspiracy’s            details,            as   long       as    the   defendant         enters    the
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    conspiracy understanding its unlawful nature and willfully joins
    in the plan on at least one occasion.                        Burgos, 
    94 F.3d at 858
    .
    To      prove    possession        with      the   intent      to     distribute
    cocaine base, the Government was required to establish beyond a
    reasonable        doubt      that   Green:          (1)   knowingly;        (2)    possessed
    cocaine base; (3) with the intent to distribute it.                              
    Id. at 873
    .
    Possession may be actual or constructive.                          See United States v.
    Rusher,   
    966 F.2d 868
    ,   878   (4th       Cir.    1992).        “A     person   has
    constructive         possession      of    a    narcotic        if    he    knows     of   its
    presence and has the power to exercise dominion and control over
    it.”     United States v. Schocket, 
    753 F.2d 336
    , 340 (4th Cir.
    1985).    Possession need not be exclusive, but may be joint and
    “may be established by direct or circumstantial evidence.”                                  
    Id.
    Intent    to      distribute        may    be       inferred       from     a     defendant’s
    possession      of    drug-packaging           paraphernalia         or    a    quantity    of
    drugs larger than needed for personal use.                             United States v.
    Fisher, 
    912 F.2d 728
    , 730 (4th Cir. 1990).                            We have held that
    possession     of     a   quantity    of       cocaine      base     slightly      over    five
    grams, when combined with testimonial evidence, is sufficient to
    support an inference of intent to distribute.                             United States v.
    Lamarr, 
    75 F.3d 964
    , 973 (4th Cir. 1996).
    With these standards in mind, our thorough review of
    the trial transcript convinces us that Green was involved in “‘a
    loosely-knit association of members linked . . . by their mutual
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    interest in sustaining the overall enterprise of catering to the
    ultimate demands of a particular drug consumption market’” –
    Florence,     South    Carolina.     Burgos,      
    94 F.3d at 858
       (quoting
    United States v. Banks, 
    10 F.3d 1044
    , 1054 (4th Cir. 1993)).
    Although    “many     conspiracies   are      executed   with   precision,    the
    fact   that     a     conspiracy     is       loosely-knit,     haphazard,    or
    ill-conceived does not render it any less a conspiracy—or any
    less unlawful.”         
    Id.
       We conclude that there was sufficient
    evidence to support the jury‘s verdict on the conspiracy count.
    As to the possession count, our review of the record
    convinces us that Green had dominion and control over 40 or more
    grams of cocaine base packaged in a manner to suggest sale.                   The
    jury could infer Green’s knowing possession of the cocaine base.
    The cocaine was found inside a jacket pocket that also contained
    Green’s identification a bedroom identified as Green’s and from
    which Green was observed exiting.                We therefore conclude that
    there was sufficient evidence to support the jury’s verdict on
    the possession count.         Further, after review of Green’s pro se
    supplemental brief, we conclude it raises no meritorious issues
    for appeal.
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    In accordance with Anders, we have reviewed the record
    in this case and have found no meritorious issues for appeal. *
    We therefore affirm the district court’s judgment.                              This court
    requires that counsel inform Green, in writing, of the right to
    petition       the     Supreme     Court    of       the   United   States    for    further
    review.        If Green 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 thereof
    was served on Green.               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
    *
    This case was also held in abeyance for United States v.
    Antonio, No. 07-4791, 311 Fed. App’x 679. This court’s decision
    in Antonio does not change our analysis of Green’s appeal.
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