United States v. Humphries ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEUNTE L. HUMPHRIES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-100)
Submitted: June 20, 2005 Decided: July 29, 2005
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reuben V. Greene, ROBERT WALKER & ASSOCIATES, Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Roderick C. Young, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Deunte L. Humphries was convicted of possession with
intent to distribute a mixture containing oxycontin and
acetaminophen, 21 U.S.C. § 841(a) (2000), and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c) (2000). He now appeals. Because the evidence was
sufficient to sustain both convictions, we affirm.
I
Officer Gary Venable testified at a bench trial that on
the evening of January 25, 2003, he was patrolling the Highland
Park area of Richmond, Virginia, which has several open-air drug
markets and much drug-related violent crime. Humphries saw Venable
and performed an “unconscious security check” by moving his hand to
his waistband to ensure that something of value such as a weapon
was still there. Venable approached Humphries, who began quickly
walking away, ignoring Venable’s instructions first to stop and
then not to enter a residence.
When Humphries, who had about him a strong odor of
marijuana, entered the residence, Venable removed him from the
residence and told Humphries that he was under arrest. Venable and
Humphries struggled; during the struggle, Venable felt what he
thought was a handgun secreted in Humphries’ clothing. During a
search of Humphries’ person, Venable recovered 2.2 grams of crack
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cocaine, twenty-six tablets of a mixture of oxycodone and
acetaminophen packaged in a baggy, and a firearm.
DEA agent John Scherbenske testified that the area in
Highland Park where Humphries was arrested was known to be an area
where heroin, crack, and OxyContin* were sold. Typically,
OxyContin was sold in tablet form and often was sold as a heroin
substitute. Dealers in Highland Park typically carried firearms
for protection and intimidation. The tablets’ packaging, coupled
with the presence of crack and a firearm on Humphries’ person, led
Scherbenske to conclude that the twenty-six tablets were not for
personal use, but intended instead for drug trafficking.
II
This evidence was sufficient to sustain both convictions.
See Glasser v. United States, 315 U.S. 60, 80 (1942). With respect
to the § 841(a) offense, Humphries clearly knew that he possessed
the tablets, for he claimed to Venable that he had a prescription
for the tablets. Further, a reasonable factfinder would find
intent to distribute based upon Humphries’ presence in an open-air
drug market, his having a firearm on his person, the number of
tablets, and the method of packaging. See United States v. Burgos,
94 F. 3d 849, 873 (4th Cir. 1996) (en banc).
*
OxyContin is the brand name of oxycodone hydrochloride
tablets.
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The evidence is also sufficient to prove that the firearm
“furthered, advanced, or helped forward a drug trafficking crime,”
see United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).
While engaged in drug trafficking in a known open-air drug market,
Humphries carried a loaded gun on his person. Testimony at trial
was that drug dealers typically carry weapons to intimidate others
and for their own protection.
We accordingly affirm the convictions. We dispense with
oral argument because the facts and legal arguments are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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