United States v. O'Quinn ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4666
SAMMY RAY O’QUINN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-50)
Submitted: February 28, 2003
Decided: March 19, 2003
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
2 UNITED STATES v. O’QUINN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sammy Ray O’Quinn appeals from his convictions and sentence
for possession with intent to distribute methamphetamine and posses-
sion with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2000). He contends that the district court erred by deny-
ing his motion for judgment of acquittal and assessing a two-level
enhancement for possession of a dangerous weapon pursuant to U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2001). We affirm.
A motion for judgment of acquittal will be denied if, viewing the
evidence in the light most favorable to the government, there was sub-
stantial evidence from which a reasonable jury could find the defen-
dant guilty beyond a reasonable doubt. United States v. MacCloskey,
682 F.2d 468, 473 (4th Cir. 1982). We find that the district court
properly denied O’Quinn’s motion. The government presented evi-
dence that O’Quinn assisted Donald Kelly in packaging two ounces
of methamphetamine for sale to an individual that O’Quinn knew as
"Sandman." Kelly then instructed O’Quinn to hide a cooler—which
contained additional packages of methamphetamine and a quantity of
cocaine—in the woods near Kelly’s house. Instead, O’Quinn placed
the cooler in Kelly’s pick-up truck.
The two then proceeded in Kelly’s truck to meet with Sandman to
deliver the two ounces of methamphetamine and collect the money
for a prior delivery to Sandman of a quantity of methamphetamine.
Following the transaction, Deputy Murchison of the Lee County Sher-
iff’s Department executed a traffic stop of the truck and arrested
Kelly for driving while intoxicated. Detective Street arrived to pro-
vide back-up. As he approached the truck, O’Quinn began to stuff
plastic bags from the cooler down his pants. Street noticed that
O’Quinn appeared agitated and was moving and bending down—
possibly reaching for a weapon. Street ordered O’Quinn to exit the
UNITED STATES v. O’QUINN 3
vehicle, and O’Quinn complied. He continued to fidget and appear
agitated. After a brief exchange, O’Quinn dropped a bag containing
a white powdery substance, glanced at it, and ran off. Street picked
up the bag and pursued him. During the pursuit, O’Quinn dropped
four more bags, which Street recovered.
O’Quinn was subsequently arrested and returned to the scene; he
had $600 in cash in his pocket. He remained agitated and denied pos-
sessing "the stuff." The officers recovered from the vehicle a plastic
bag containing a large sum of cash and a cooler containing "several
plastic bags containing white rock-like substances." The plastic bags
recovered from the cooler and those that O’Quinn dropped later
proved to contain methamphetamine and cocaine.
Based on this evidence, we agree with the district court’s determi-
nation that a reasonable jury could find that O’Quinn knowingly pos-
sessed the controlled substances and, based on the quantities, that he
had the intent to distribute the controlled substances. See United
States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc) (provid-
ing elements of possession with intent to distribute).
O’Quinn contends that the government failed to prove his posses-
sion of the controlled substances, because Kelly testified that the
drugs were his, that O’Quinn contributed no money toward the drugs,
and that he alone would profit from the sale of the drugs. Possession
may be actual or constructive. United States v. Rusher, 966 F.2d 868,
878 (4th Cir. 1992). A person has constructive possession of an item
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 circumstantial evidence. Id. We find that the
evidence, viewed in the light most favorable to the government, see
MacCloskey, 682 F.2d at 473, was sufficient to prove that O’Quinn
exercised dominion and control over and thus possessed the con-
trolled substances. See Schocket, 753 F.2d at 340.
O’Quinn next argues that the district court erring in applying a
two-level upward adjustment for possession of a firearm. This Court
reviews for clear error the district court’s decision to impose the two-
level enhancement for possession of a firearm during a drug traffick-
4 UNITED STATES v. O’QUINN
ing offense. Rusher, 966 F.2d at 880. "A finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that
a mistake has been committed." United States v. United States Gyp-
sum Co., 333 U.S. 364, 395 (1948). The evidence supports no such
conclusion in this case. Detective Murchison testified that when he
approached the vehicle, he saw what appeared to be a handgun in the
console between the two front seats. A subsequent search of the vehi-
cle resulted in the seizure of a loaded .9 millimeter handgun clip, but
not in the recovery of a firearm. However, Deputy Murchison also
testified that he saw a firearm in O’Quinn’s hand as he ran from the
scene. Also, when O’Quinn was apprehended and brought back to the
truck, he inquired whether the officers had found a gun. We find no
clear error by the district court in determining that a gun was present,
and thus in applying the two-level enhancement. See id. at 395;
Rusher, 966 F.2d at 880; see also United States v. Uwaeme, 975 F.2d
1016, 1018 (4th Cir. 1992) (providing that reviewing court gives sub-
stantial deference to credibility determinations).
Accordingly, we affirm O’Quinn’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED