United States v. Lowery , 238 F. App'x 941 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4099
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM JAMES LOWERY, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (8:05-cr-00524-HMH)
Submitted: March 30, 2007 Decided: July 11, 2007
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald R. Hall, HALL & HALL ATTORNEYS AT LAW, West Columbia, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Regan A. Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William James Lowery, III, appeals his convictions
following a jury trial for conspiracy to possess with intent to
distribute five kilograms or more of powder cocaine, in violation
of 21 U.S.C. § 846 (2000) (“Count One”), and possession with intent
to distribute five kilograms or more of powder cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2000) (“Count Two”).
For the reasons set forth below, we affirm.
Lowery first challenges the sufficiency of the evidence
underlying his conviction on Count Two. We review the denial of a
motion for a directed verdict de novo. United States v. Alerre,
430 F.3d 681, 693 (4th Cir. 2005), cert. denied, 126 S. Ct. 1925
(2006). Where, as here, the motion was based on a claim of
insufficient evidence, “[t]he verdict of a jury must be sustained
if there is substantial evidence, taking the view most favorable to
the Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942). This court “ha[s] defined ‘substantial evidence’ as
‘evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.’” Alerre, 430 F.3d at 693 (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)). In evaluating the presence of substantial evidence, we
“consider circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the facts
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proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This court “may not
weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
In order to establish a violation of 21 U.S.C.
§ 841(a)(1), the Government must prove beyond a reasonable doubt
that Lowery: (1) knowingly; (2) possessed the controlled substance;
(3) with the intent to distribute it. Burgos, 94 F.3d at 873.
Possession may be actual or constructive. 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.; United States v. Wright, 991 F.2d
1182, 1187 (4th Cir. 1993). This court has held that “where other
circumstantial evidence . . . is sufficiently probative, proximity
to contraband coupled with inferred knowledge of its presence will
support a finding of guilt on such charges.” United States v.
Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980) (internal quotations
and citation information omitted).
Lowery maintains that the Government failed to present
sufficient evidence to establish that he either constructively or
actually possessed the cocaine in question. After reviewing the
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evidence presented at trial in the light most favorable to the
Government, we find that there was sufficient evidence on which the
jury could conclude that Lowery constructively possessed the
cocaine he gave Alvin Reed, one of Lowery’s co-conspirators. Law
enforcement officials discovered the cocaine in the trunk of the
vehicle Reed was driving. Reed testified at trial that Lowery gave
him the cocaine and that he (Reed) did not know the ultimate
destination of the cocaine. Lowery was a passenger in the vehicle
that closely trailed Reed’s vehicle. While Lowery challenges
Reed’s veracity, we will not disturb the jury’s credibility
determinations. See Wilson, 118 F.3d at 234.
Lowery next raises a Fourth Amendment challenge to the
traffic stop that preceded the seizure of small quantities of
heroin and cocaine from the vehicle in which Lowery was a
passenger. Lowery contends that, because the police officer who
initiated the traffic stop lacked probable cause or reasonable,
articulable suspicion to stop the vehicle, any evidence derived
from that stop constitutes fruit of the poisonous tree and should
have been suppressed.
Because Lowery did not challenge the validity of the stop
in the district court, this court reviews the issue only for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005);
United States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
Under the plain error standard, Lowery must show: (1) there was
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error; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). When these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks
omitted). The burden of showing plain error is on the defendant.
United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).
Although Lowery has standing to challenge the stop,
United States v. Rusher, 966 F.2d 868, 874 n.4 (4th Cir. 1992), we
nonetheless reject Lowery’s argument on the merits. The police
officer who initiated the traffic stop had probable cause to
believe the vehicle’s driver had violated various traffic laws.
See United States v. Whren, 517 U.S. 806, 809-10 (1996) (noting
probable cause undisputed where officer witnessed traffic
violation). Accordingly, the stop was well-within the bounds of
the Fourth Amendment. United States v. Hassan El, 5 F.3d 726, 730
(4th Cir. 1993) (“[W]hen an officer observes a traffic offense or
other unlawful conduct, he or she is justified in stopping the
vehicle under the Fourth Amendment.”).
For the foregoing reasons, we affirm Lowery’s
convictions. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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