United States v. Marsh , 232 F. App'x 261 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4713
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT SHAYNE MARSH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00004-IMK)
Submitted: March 14, 2007 Decided: May 9, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Shawn Angus Morgan, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Shayne Marsh appeals his conviction for possession
of a firearm by an unlawful user of a controlled substance, in
violation of 18 U.S.C. § 922(g)(3) (2000). Marsh’s lone contention
on appeal is that the Government failed to provide sufficient
evidence demonstrating that his drug use was consistent through a
period of time proximate to his possession of the firearms. Marsh
asserts that there was no evidence presented that dealt with
Marsh’s drug use from 2004 until the night of his arrest and that
this significant gap in time prevents any finding of consistent or
prolonged use. Finding no error, we affirm.
A defendant challenging the sufficiency of the evidence
“bears a heavy burden.” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). “The 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 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)). In evaluating the sufficiency of the
evidence, this court does not review the credibility of the
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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). The court reviews both direct
and circumstantial evidence and permits “the government 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).
Pursuant to 18 U.S.C. § 922(g)(3), it is illegal for any
person who is an unlawful user of any controlled substance to
possess a firearm. To sustain a conviction under § 922(g)(3), the
Government must prove that the defendant possessed a firearm and
that his drug use was sufficiently consistent, prolonged, and close
in time to the 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 infrequent drug use or frequent use in the distant past does
not qualify under the statute). This court has noted that the term
“unlawful user” is not defined under § 922(g) and that “the exact
reach of the statute is not easy to define.” United States v.
Jackson, 280 F.3d 403, 406 (4th Cir. 2002).
While Marsh claims that his drug habit was not proven to
be consistent or prolonged, the evidence presented in this case
demonstrated that Marsh’s drug use was neither infrequent nor in
the distant past. During a search of Marsh’s home in March 2005,
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police found bags of marijuana as well as various items used for
smoking marijuana. Marsh admitted that he had smoked marijuana for
the past few years, and the marijuana found during his January 2006
arrest further affirms that he was a consistent user.
Additionally, Marsh occasionally used cocaine, as evidenced by his
own admissions to federal agents and by Larry Dixon’s testimony.
Marsh also attributed his behavior at the time of his arrest to his
ingestion of methamphetamine, which he had originally believed to
be cocaine. When viewing the evidence as a cumulative whole and in
the light most favorable to the Government, there is substantial
evidence demonstrating that Marsh’s drug use was consistent,
prolonged, and close in time to his gun possession. Therefore, we
hold that there was sufficient evidence to support Marsh’s
conviction for possession of a firearm by an unlawful user of a
controlled substance.
Accordingly, we affirm Marsh’s conviction and sentence.
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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