United States v. Davis ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4688
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-39)
Submitted: January 31, 2006 Decided: March 2, 2006
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes,
Jennifer May-Parker, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antonio Davis appeals from his conviction after a jury
trial for possession of a firearm by a convicted felon. On appeal,
he asserts that the evidence was insufficient to show that he
knowingly possessed the firearm in question. After a review of the
record, we affirm.
A verdict 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).
Substantial evidence is defined as “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 (4th Cir.
1996)). We review both direct and circumstantial evidence and
permit “the [G]overnment the benefit of all reasonable inferences
from the facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Title 18 U.S.C. § 922(g) (2000) prohibits the possession
of a firearm by a person previously convicted of “a crime
punishable by imprisonment for a term exceeding one year.”
Possession may be actual or constructive. United States v. Rusher,
966 F.2d 868, 878 (4th Cir. 1992) (possession of a controlled
substance). When the Government seeks to establish constructive
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possession, it must prove that the defendant “intentionally
exercised dominion and control over the firearm, or had the power
and the intention to exercise dominion and control over the
firearm.” United States v. Scott, 424 F.3d 431, 435-36 (4th Cir.),
cert. denied, 126 S. Ct. 779 (2005).
In support of his argument that there was insufficient
evidence that he was in knowing possession of the firearm, Davis
chiefly relies on our decision in United States v. Blue, 957 F.2d
106 (4th Cir. 1992). In Blue, we found that an officer’s testimony
that Blue’s shoulder dipped as the officer approached the vehicle
in which Blue was a passenger and the fact the gun was found under
the passenger seat where Blue had been sitting did not alone
support a finding of constructive possession. Id. at 107-08. We
explained that, in order to “uphold a finding of constructive
possession, this court requires more evidence of dominion and
control than the government has offered here.” Id. However, we
noted that “[i]n reaching this decision, we emphasize that the
facts of this case fall outside, but just barely, the realm of the
quantum of evidence necessary to support a finding of constructive
possession.” Id. at 108.
In this case, there is substantially more evidence than
the two pieces of evidence that were available in Blue. Davis was
driving the vehicle in question, and the firearm was in plain sight
and touching his foot. In addition, after Davis was seen bending
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over in his seat, the firearm was found moved from the right side
of the driver’s seat to the left side and tucked under the seat.
Moreover, when questioned about the gun, Davis stated unequivocally
that it was not in the car. He did not state that he was unaware
of the car’s contents or that, to his knowledge, there was no gun
in the car. Instead, his response gave the impression that he was
aware of the contents of the car. Based on the foregoing, we
conclude that the evidence was sufficient for the jury to reach the
conclusion that Davis was in possession of the firearm.
Accordingly, we affirm. We deny Davis’s motions to
relieve counsel, to appoint new counsel, and to file a supplemental
brief. Davis must pursue any claims he has against his trial or
appellate counsel in a 28 U.S.C. § 2255 (2000) motion. 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
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