United States v. Short , 55 F. App'x 183 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4235
MICHAEL L. SHORT,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CR-01-39)
Submitted: November 26, 2002
Decided: January 31, 2003
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher B. Parkerson, DAVID CROMWELL JOHNSON &
ASSOCIATES, Birmingham, Alabama, for Appellant. John L.
Brownlee, United States Attorney, Eric M. Hurt, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SHORT
OPINION
PER CURIAM:
Michael L. Short appeals his convictions for conspiracy to distrib-
ute and possession with intent to distribute oxycodone, use of a fire-
arm during a drug trafficking offense, and unlawful use of a
controlled substance while being in possession of a firearm, all in vio-
lation of 18 U.S.C. §§ 922(g)(3), 924(c)(1) (2000); 21 U.S.C.
§§ 841(a), 846 (2000).
Short first claims that his receipt of firearms as payment for oxyco-
done does not amount to "use" of a firearm within the meaning of 18
U.S.C. § 924(c)(1)(A), and that the district court consequently erred
in denying his motion for judgment of acquittal. Section 924(c) pro-
scribes this form of bartering. See Bailey v. United States, 516 U.S.
137, 143 (1995); cf. United States v. Garnett, 243 F.3d 824, 828-29
(4th Cir. 2001) (holding that "trading a firearm for drugs" amounts to
"use" of a firearm within the meaning of the Sentencing Guidelines).
Accordingly, we conclude that a judgment of acquittal was unwar-
ranted in regard to this issue.
Short next claims that the district court erred by admitting hearsay
testimony pursuant to Fed. R. Evid. 801(d)(2)(E). Prior to admitting
the statement of a co-conspirator, the district court must establish by
a preponderance that the statement is made by the defendant’s co-
conspirator during the course and in furtherance of a conspiracy. Fed.
R. Evid. 801(d)(2)(E); see also United States v. Hines, 717 F.2d 1481,
1488 (4th Cir. 1983). Short asserts that the Government never estab-
lished a conspiracy. We disagree. The Government need not show an
explicit agreement between the parties. Rather, the appropriate analy-
sis is whether the parties acted with the requisite agreement, linked
by their mutual interests to sustain the "overall enterprise of catering
to the ultimate demands of a particular drug consumption market."
United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). On the
record before us, we conclude the Government established the con-
spiracy by a preponderance of the evidence as a prerequisite to admis-
sion of the challenged evidence. Accordingly, the statements of
Short’s co-conspirator were admissible. This claim, likewise, merits
no relief.
UNITED STATES v. SHORT 3
We affirm the judgment of the district court. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED