United States v. Tymon Wells , 459 F. App'x 243 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4638
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYMON JAMES WELLS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:10-cr-00869-CMC-1)
Submitted: December 12, 2011 Decided: December 22, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia,
South Carolina, for Appellant. William N. Nettles, 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Unpublished opinions are not binding precedent in this circuit.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:
Tymon James Wells appeals from his conviction for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006), possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and
using, brandishing, and discharging a firearm in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006). On appeal, Wells challenges the district court’s answer
to a jury question, claiming that the district court’s response
was an incorrect statement of law that led the jury to convict
him of violating 21 U.S.C. § 841(a)(1). We affirm.
Because Wells timely objected to the formulation of
the district court’s response to the jury question at issue, we
review for an abuse of discretion the district court’s decision
to respond and the form of that response. United States v.
Foster, 507 F.3d 233, 244 (4th Cir. 2007). “In responding to a
jury’s request for clarification on a charge, the district
court’s duty is simply to respond to the jury’s apparent source
of confusion fairly and accurately without creating prejudice,”
and an error requires reversal only if it is prejudicial based
on the record as a whole. Id.
Upon review of the record and the controlling law in
this Circuit, we find that the district court’s response to the
jury’s question was a correct statement of law and not an abuse
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of its discretion. We have held that an individual can be
convicted under 21 U.S.C. § 841(a)(1) when he has possessed a
controlled substance with the intent to share it with others.
United States v. Washington, 41 F.3d 917, 920 (4th Cir. 1994);
see also United States v. Wallace, 532 F.3d 126, 129-31 (2nd
Cir. 2008). Therefore, considering the evidence produced during
Wells’ trial, the district court was correct when it informed
the jury that the passing of a marijuana cigarette, or a
“blunt,” to one’s friend could, but need not necessarily,
constitute evidence indicating the intent to distribute the
drug. Wells’ broad assertion that establishing shared
possession of a controlled substance negates the possibility of
finding that one of the possessors intended to distribute the
substance to the other is a misstatement of the requirements for
conviction under 21 U.S.C. § 841(a)(1).
We find unpersuasive Wells’ reliance on United States
v. Swiderski, 548 F.2d 445 (2d Cir. 1977). We have previously
declined to consider whether the Second Circuit’s narrow and
fact-bound holding in Swiderski is a proper statement of law in
this Circuit, and conclude that we need not resolve that
question here. Washington, 41 F.3d at 920 n.2. The facts of
Wells’ case are far different from those the court considered in
Swiderski, and, therefore, we find the reasoning and holding in
that case inapplicable to our present inquiry.
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Therefore, we affirm Wells’ conviction. We dispense
with oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED
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