United States v. Fair , 194 F. App'x 148 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONNIE WILTON FAIR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-96-FWB)
Submitted: June 21, 2006 Decided: August 14, 2006
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT, P.C.,
Baltimore, Maryland, for Appellant. Anna Mills Wagoner, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Ronnie Wilton Fair was convicted
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2) (2000) (“Count One”), possession
with intent to distribute approximately one kilogram of cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)
(2000) (“Count Two”), and use of a firearm in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(I)
(2000) (“Count Three”). Fair challenges the district court’s
denial of his motion for a judgment of acquittal pursuant to
Federal Rule of Criminal Procedure 29 and his sentence. Finding no
error, we affirm Fair’s conviction and sentence.
We review the denial of a Rule 29 motion de novo. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Where, as
here, the motion was based on a claim of 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). We
consider both circumstantial and direct evidence, “and allow 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). Further, on
appellate review, we “may not weigh the evidence or review the
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credibility of the witnesses.” United States v. Wilson, 118 F.3d
228, 234 (4th Cir. 1997).
To establish a violation of 21 U.S.C. § 841(a)(1), the
government must prove beyond a reasonable doubt that the defendant:
(1) knowingly; (2) possessed the controlled substance; (3) with the
intent to distribute it. United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996) (en banc). Possession may be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.
1992). “A person has constructive possession of a narcotic if he
knows of its presence and has the power to exercise dominion and
control over it.” United States v. Schocket, 753 F.2d 336, 340
(4th Cir. 1985). Possession need not be exclusive but may be
joint, and “may be established by direct or circumstantial
evidence.” Id.; United States v. Wright, 991 F.2d 1182, 1187 (4th
Cir. 1993). This court has held that “where other circumstantial
evidence . . . is sufficiently probative, proximity to contraband
coupled with inferred knowledge of its presence will support a
finding of guilt on such charges.” United States v. Laughman, 618
F.2d 1067, 1077 (4th Cir. 1980) (internal quotations and citation
information omitted). Intent to distribute may be inferred if the
amount of drugs found exceeds an amount normally associated with
personal consumption. Wright, 991 F.2d at 1187.
We note as an initial matter that the parties stipulated
to Fair’s prior felony conviction, the weight of the cocaine
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recovered, and that the firearm at issue traveled in interstate
commerce. Taken in the light most favorable to the Government, the
record establishes the following additional facts.
A Drug Enforcement Agent from Los Angeles, California,
informed law enforcement officials in Greensboro, North Carolina,
that the DEA intercepted a package mailed by Dawn Headen, a
Greensboro resident, that contained over $16,000 cash. Detective
Jon Marsh, accompanied by Detective Herb Sampson, went to Ms.
Headen’s apartment to investigate. Ms. Headen lived on the second
floor of a three-story building. Although Ms. Headen initially
allowed the detectives in her apartment, after Det. Sampson
requested permission to conduct a protective sweep, Ms. Headen
insisted the remainder of the interview be conducted in the parking
lot downstairs; the officers complied, and the three descended the
front stairs to the parking lot.
While Det. Marsh interviewed Ms. Headen, Det. Sampson
patrolled the area, keeping watch on the apartment. Det. Sampson
saw an individual later identified as Fair exit Ms. Headen’s
apartment. Det. Sampson followed Fair down the building’s back
stairs, observing that Fair appeared to be using his body to hide
something he carried in his hands. Det. Sampson saw Fair walk
around to the back of the building, and followed him. At this
point, Det. Sampson nearly collided with Fair because Fair was
already returning from the back of the building. Det. Sampson
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could see that Fair was no longer holding anything. Minutes later,
Det. Sampson investigated the area and recovered a plastic bag
containing .992 grams of cocaine hydrochloride hidden in a shrub.
Det. Sampson also discovered a cellular telephone near the cocaine,
which was later traced to Fair’s sister, who bought the phone for
Fair.
While examining the area behind the building, Det.
Sampson observed several objects being thrown out of a window
located inside Ms. Headen’s apartment. Fair exited the apartment
shortly thereafter. A subsequent search of the shrub directly
beneath Ms. Headen’s apartment yielded a set of digital scales and
the firearm, wrapped in a T-shirt. Shortly after discovering the
cocaine and the firearm, Ms. Headen consented to a search of her
apartment, which was then unoccupied.
Viewing this evidence in the light most favorable to the
Government, a rational trier of fact could conclude Fair both
possessed the recovered firearm and possessed with intent to
distribute the large quantity of cocaine found outside Ms. Headen’s
apartment. Therefore, we find the jury’s unanimous verdict was
supported by substantial evidence.
Turning to Fair’s assignments of error related to his
sentence, we review for plain error because Fair did not raise
these issues below. United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005); United States v. Martinez, 277 F.3d 517, 524 (4th
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Cir. 2002). Under the plain error standard, Fair must show: (1)
there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507 U.S.
725, 732-34 (1993). When these conditions are satisfied, this
court may exercise its discretion to notice the error only if the
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted). The burden of showing plain error is on
the defendant. United States v. Strickland, 245 F.3d 368, 379-80
(4th Cir. 2001).
Fair first argues the district court erred in sentencing
him pursuant to the Armed Career Criminal Act (“ACCA”). A
defendant with three prior convictions for serious drug offenses
committed on separate occasions is subject to treatment as an armed
career criminal. See 18 U.S.C. § 924(e)(1) (2000). Though the
statute does not define “committed on occasions different from one
another[,]” this court considers three factors in determining
whether offenses occurred on the same occasion and thus should
count as only one predicate offense: “whether the offenses arose
in different geographic locations; whether the nature of the
offenses was substantively different; and whether the offenses
involved multiple victims or multiple criminal objectives.” United
States v. Letterlough, 63 F.3d 332, 335-36 (4th Cir. 1995)
(footnotes omitted). A conviction is considered to have
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“occur[red] on occasions different from one another if each of the
prior convictions arose out of a separate and distinct criminal
episode.” Id. at 335 (internal quotation marks and citation
omitted). Separate offenses are not made related simply because
the offenses were consolidated for sentencing or the defendant
received concurrent sentences. United States v. Breckenridge, 93
F.3d 132, 137-38 (4th Cir. 1996) (citations omitted); United States
v. Rivers, 929 F.2d 136, 140 (4th Cir. 1991).
A review of Fair’s criminal history demonstrates that he
had the requisite three prior convictions for serious drug
offenses. On November 18, 1992, Fair was convicted in North
Carolina state court on two counts of felony possession with intent
to sell or deliver cocaine, and sentenced to five years’
imprisonment. The two counts arose from Fair’s sale of narcotics
on January 16, 1992, and July 31, 1992. The convictions are not
related solely because they were consolidated for sentencing
because there was no formal order consolidating the cases. United
States v. Allen, 50 F.3d 294, 297-98 (4th Cir. 1995). Fair’s third
qualifying offense occurred on June 6, 1995, when he was convicted
of, among other offenses, felony possession of cocaine and
sentenced to fifteen years’ imprisonment. Thus, the district court
did not err in sentencing Fair pursuant to the ACCA.
Lastly, Fair asserts that the career offender guideline,
USSG § 4B1.1 (2004), violates the Equal Protection Clause. Fair
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argues that, because a criminal conviction that predates a
defendant’s eighteenth birthday will be counted as a predicate
offense in some instances but not in others, depending on the
underlying state law, the guideline runs afoul of the Equal
Protection Clause. We have categorically rejected such equal
protection challenges to the career offender guideline before, and
see no reason to deviate from our prior holdings here. United
States v. Fonville, 5 F.3d 781, 785 (4th Cir. 1993). Thus, we find
this claim to be meritless.
For the foregoing reasons, we affirm Fair’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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