United States v. Parris ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4619
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEWAYNE ANTONIO PARRIS, a/k/a D.A.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District Judge.
(CR-02-11)
Submitted: April 21, 2004 Decided: October 1, 2004
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter R. Roane, Charlottesville, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:
Dewayne Antonio Parris was convicted of conspiracy to
possess with intent to distribute more than fifty grams of cocaine
base (Count II), in violation of 21 U.S.C. § 846 (2000);
possession with intent to distribute more than fifty grams of
cocaine base (Count III), in violation of 21 U.S.C. § 841(a)
(2000); possession and discharge of a firearm in relation to a drug
trafficking crime (Count IV), in violation of 18 U.S.C. § 924(c)
(2000); and unlawful possession of a firearm while being an
unlawful user of a controlled substance (Count V), in violation of
18 U.S.C. §§ 922(g)(1), 922(g)(3) (2000). These charges arose from
his participation in a drug trafficking scheme.
On appeal, Parris contends that there was insufficient
evidence to support his conviction for violating § 924(c) and
§ 922(g), and thus, the district court erred in denying his motion
for judgment of acquittal on these counts.
This court reviews the district court’s decision to deny
a motion for judgment of acquittal de novo. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). Where, as here, the
motion was based on 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,’ in the context of a criminal action, as
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that evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996) (en banc)). This Court does not
review the credibility of the witnesses and assumes that the jury
resolved all contradictions in the testimony in favor of the
Government. United States v. Romer, 148 F.3d 359, 364 (4th Cir.
1998).
Parris first alleges that the evidence was insufficient
to prove that he possessed a firearm in furtherance of a drug
trafficking scheme, in violation of § 924(c)). In establishing a
violation of § 924(c), the Government is required to prove beyond
a reasonable doubt that the firearm “furthered, advanced, or helped
forward a drug trafficking crime.” United States v. Lomax, 293
F.3d 701, 705 (4th Cir.), cert. denied, 537 U.S. 1031 (2002).
Viewing the evidence in the light most favorable to the Government,
and assuming the jury resolved all contradictions in favor of the
Government, we conclude that the evidence was sufficient to
establish that Parris possessed a firearm in furtherance of a drug
trafficking scheme, in violation of § 924(c). Glasser, 315 U.S. at
80; Romer, 148 F.3d 359, 364; Lomax, 293 F.3d at 705.
Parris also contends that the evidence was insufficient
to prove that he was an unlawful drug user, rendering his firearm
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possession a violation of § 922(g)(3). In order to sustain a
conviction under § 922(g)(3), the Government must prove that the
Defendant’s drug use was sufficiently consistent, “prolonged,” and
close in time to his gun possession to put him on notice that he
qualified as an unlawful user of drugs under the statute. United
States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001) (recognizing
that statute may not encompass a defendant whose illegal drug use
was “infrequent” or in the “distant past”); see also United States
v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (finding that firearm
possession and drug use need not be simultaneous). Viewing the
evidence in the light most favorable to the Government, and
assuming the jury resolved all contradictions in favor of the
Government, we conclude that the evidence was sufficient to
establish that Parris was an unlawful user at the time he possessed
the firearm. Glasser, 315 U.S. at 80; Romer, 148 F.3d 359, 364;
Jackson, 280 F.3d at 406.1
Accordingly, we find no error in the district court’s
denial of Parris’ motion for judgment of acquittal on both counts,
Gallimore, 247 F.3d at 136, and we affirm Parris’ conviction and
1
We note that the Fifth Circuit decision relied on by Parris
was vacated by that court’s grant of en banc rehearing. See United
States v. Herrera, 289 F.3d 311 (5th Cir.), vacated by, 313 F.3d
882 (5th Cir. 2002) (en banc), cert. denied, 537 U.S. 1242 (2003);
see generally Byrne v. Butler, 845 F.2d 501, 507 (5th Cir. 1988)
(recognizing circuit rule that grant of en banc rehearing vacates
panel opinion).
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sentence.2 We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
2
On July 23, 2004, Parris filed a motion for leave to file a
supplemental brief addressing the effect of Blakely v. Washington,
124 S. Ct. 2531 (2004), on his sentence. We grant this motion. We
deem the motion to be the supplemental brief, and we conclude that
the Blakely claim is without merit. See United States v. Hammoud,
No. 03-4253, 2004 WL 1730309 (4th Cir. Aug. 2, 2004) (order),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 6, 2004) (No.
04-193), and ___ F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8,
2004).
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