United States v. Wade ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4814
CORNELL WADE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-97-7-S)
Submitted: June 30, 1998
Decided: August 3, 1998
Before WILKINS and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Alan G. McGonigal, BAILEY, RILEY, BUCH & HARMAN, L.C.,
Wheeling, West Virginia, for Appellant. William D. Wilmoth, United
States Attorney, Thomas O. Mucklow, Assistant United States Attor-
ney, Martinsburg, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Cornell Wade was convicted by a jury of possession with intent to
distribute crack cocaine and cocaine hydrochloride, in violation of 21
U.S.C. § 841(a)(1) (1994) and possession with intent to distribute
cocaine hydrochloride, in violation of 21 U.S.C.§ 841(a)(1) (1994).
Wade appeals only his conviction of possession with intent to distrib-
ute crack cocaine and cocaine hydrochloride. Wade alleges that the
district court abused its discretion in denying his motion for acquittal,
or in the alternative, his motion for new trial, and also contends that
the district court erred in sentencing him. Finding no error, we affirm.
First, Wade avers that the district court abused its discretion in
denying his motion for judgment of acquittal, or alternatively, his
motion for new trial because there was not sufficient evidence to
establish that he constructively possessed the cocaine or cocaine
hydrochloride. Wade contends that Melinda Bunch, the woman whom
he was with on the night of his arrest, rented and possessed the auto-
mobile and its trunk containing the cocaine. Contrary to Wade's
assertions, we find that the evidence, viewed in the light most favor-
able to the United States, establishes that any rational jury could have
found beyond a reasonable doubt that Wade constructively possessed
the cocaine and cocaine hydrochloride. See Jackson v. Virginia, 443
U.S. 307, 319 (1979). Alternatively, we find that the weight of the
evidence supports the jury's verdict. See United States v. Wilson, 118
F.3d 228, 237 (4th Cir. 1997). The record indicates that Wade con-
structively possessed the substances because he had dominion and
control over the automobile and its trunk where the cocaine was
located. See United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir.
1993). On the night of Wade's arrest, a security guard observed Wade
driving the vehicle, Wade sitting in the driver's seat arguing with
Bunch, Wade opening the trunk and removing an object from the
trunk, and later Wade returning the object to the trunk. Thomas Gray,
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a bystander who attempted to intervene in the altercation between
Wade and Bunch, observed Wade removing something from the trunk
of the vehicle. Further, a policeman had, on prior occasions, observed
Wade driving the vehicle.
Next, Wade claims that the district court erred by enhancing his
sentence because, he claims, the Government did not establish that the
object which he possessed was a firearm. We find, however, that the
district court did not clearly err in enhancing Wade's sentence under
United States Sentencing Guidelines Manual§ 2D1.1(b)(1) (1997) for
possession of a weapon during a commission of an offense. See
United States v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992). Contrary
to Wade's allegations, the Government established by a preponder-
ance of the evidence that Wade possessed a firearm and that is was
not clearly improbable that the weapon was connected with the
offense. See United States v. Harris, 128 F.3d 850, 852 (4th Cir.
1997). The record indicates that the firearm was located along with
the cocaine and cocaine hydrochloride in the trunk of the vehicle over
which Wade had dominion and control. The record reveals that evi-
dence was presented to the jury that Wade removed an object from
the automobile's trunk, carried the object down the street chasing
Gray, and returned the object.* Further, the record establishes that the
court had before it reliable evidence of Wade's possession of the fire-
arm: an affidavit had been presented to the court prior to trial in
which a police officer stated that he found a firearm in the trunk of
the vehicle; and the probation officer's report identified the object as
a firearm and the probation officer testified at sentencing that the fire-
arm had been found in the trunk with the drugs. See U.S.S.G.,
§ 6A1.3(a) (1997); United States v. Roberts, 881 F.2d 95, 106 (4th
Cir. 1989).
We therefore affirm Wade's conviction and sentence for possession
with intent to distribute crack cocaine and cocaine hydrochloride. We
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*Prior to trial, Wade contended that the introduction of the evidence
of a firearm was not relevant to his drug possession charge and the dis-
trict court granted his motion in limine and mandated that the item was
not to be referred to as a firearm at trial. In reviewing Wade's objection
to the enhancement, the court commented that it was the court's under-
standing that the object referred to at trial was the firearm.
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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
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