United States v. Stephen Belcher ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4845
STEPHEN BELCHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-98-53)
Submitted: November 9, 1999
Decided: November 29, 1999
Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jacqueline A. Hallinan, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Steven I. Loew, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury found Stephen Belcher guilty of using or carrying a machine
gun in relation to a drug trafficking crime in violation of 18 U.S.C.A.
§ 924(c) (West 1999) and 18 U.S.C. § 2 (1994). On appeal, Belcher
argues that there was insufficient evidence to support a conviction
under § 924(c). Belcher further argues that because the United States
proved only that he was guilty of bartering drugs for guns, rather than
guns for drugs, he cannot properly be convicted under § 924(c). For
the reasons that follow, we affirm.
This court reviews challenges to the sufficiency of the evidence by
viewing the evidence at trial in the light most favorable to the govern-
ment, including all reasonable inferences that can be drawn from the
evidence. See Glasser v. United States, 315 U.S. 60, 80 (1942). Addi-
tionally, this court does not assess witness credibility on appeal. See
United States v. Russell, 971 F.2d 1098, 1109 (4th Cir. 1992).
Belcher argues that there was insufficient evidence to show that he
aided and abetted a co-conspirator in consummating the drugs for
guns exchange. Specifically, Belcher argues that he"had withdrawn,
gone to Parkersburg ninety miles away and had no knowledge that the
ATF agent and confidential [informant] actually followed through
with their offer to make a machine gun available." See Appellant's
Brief, at 8. Belcher's involvement with respect to the drugs for guns
exchange is amply demonstrated by the record. Moreover, while
being surreptitiously recorded by the government, Mr. Belcher repeat-
edly made reference to his desire to facilitate the trade for the
machine guns. The only evidence that Belcher offered to support his
theory of withdrawal was his own testimony and that of his girlfriend.
The jury heard all of the aforementioned evidence, and after weighing
the credibility of Belcher, his girlfriend, and the other witnesses,
found Belcher guilty. Because we do not assess witness credibility on
appeal, Belcher's claim of withdrawal must fail. See United States v.
Russell, 971 F.2d 1098, 1109 (4th Cir. 1992).
Belcher next argues that because "he traded drugs for guns", rather
than guns for drugs, he cannot be convicted under 18 U.S.C.A.
2
§ 924(c) (West 1999). This court reviews questions of law de novo.
See United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996).
Belcher's argument is without merit. An exchange of drugs for
guns constitutes "use" under 18 U.S.C.A. § 924(c).* See United
States v. Ulloa, 94 F.3d 949, 956 (5th Cir. 1996); United States v.
Harris, 39 F.3d 1262, 1269 (4th Cir. 1994). Therefore, Belcher's
argument must fail.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
_________________________________________________________________
*Belcher's reliance on United States v. Westmoreland, 122 F.3d 431(7th Cir. 1997), is misplaced. In Westmoreland , a § 924(c)(1) conviction
was reversed upon a finding that the defendant "passively receive[d]" the
gun from an undercover agent who admitted that he had purposefully
paid for drugs with a gun in order to create a § 924(c)(1) violation. The
facts of that case are thus sufficiently distinguishable from the conduct
in which Belcher engaged that the court's reasoning is simply inapplica-
ble to the present case.
3