United States v. Merica ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5089
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKEY A. MERICA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CR-04-15)
Submitted: July 31, 2006 Decided: August 25, 2006
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David I. McCaskey, LAW OFFICE OF DAVID I. MCCASKEY, Staunton,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Ray B. Fitzgerald, Jr., Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Rickey A. Merica was convicted of
conspiracy to distribute 500 grams or more of a mixture of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846 (2000), possessing and brandishing a firearm in furtherance
of a drug trafficking offense while in the company of Larry Land,
in violation of 18 U.S.C. § 924(c) & (c)(1)(A)(ii) (2000), and
possessing and brandishing a sawed-off shotgun in furtherance of a
drug trafficking offense while in the company of Cynthia Land, in
violation of 18 U.S.C. § 924(c)(1)(A), (c)(1)(B)(i), and
(c)(1)(C)(i) (2000). Merica was sentenced to a total of 619
months’ imprisonment.
Merica’s sole challenge on appeal is to the sufficiency
of the Government’s evidence relevant to the first firearm offense.
Merica contends the Government did not prove, beyond a reasonable
doubt, that he possessed a firearm in furtherance of a drug
trafficking offense or that he “brandished” the firearm.
Merica concedes he did not make a Fed. R. Crim. P. 29
motion for judgment of acquittal. Some circuits have held that the
failure to file such a motion waives the issue on appellate review.
United States v. Carr, 5 F.3d 986, 991 (6th Cir. 1993); United
States v. Ward, 914 F.2d 1340, 1346 (9th Cir. 1990). We have not
addressed the issue in a published decision. Even assuming,
however, that we may review the evidence presented in the instant
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case for the first time on appeal, it was more than sufficient to
establish Merica’s guilt. Id.When reviewing a challenge to the sufficiency of the
evidence, the evidence presented at trial is taken in the light
most favorable to the Government. Evans v. United States, 504 U.S.
255, 257 (1992). 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 credibility of the witnesses.” United
States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). The
uncorroborated testimony of a single witness may be sufficient
evidence of guilt, even if the witness is an accomplice, a
co-defendant, or an informant. United States v. Wilson, 115 F.3d
1185, 1189-90 (4th Cir. 1997).
At trial, Larry Land (Land), Cynthia Land, and Angelia
Devers, all of whom conspired with Merica to distribute
methamphetamine, testified to Merica’s involvement in the ongoing
conspiracy and use of firearms. Land testified that Merica
provided the methamphetamine he in turn sold to law enforcement
officials in each of three controlled purchases. Land further
testified that prior to the second controlled purchase, Merica gave
Land the drugs and showed him a .45 caliber pistol. Land explained
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that Merica offered him the pistol as a way to protect the drugs.
As this court has repeatedly stated, drug deals frequently involve
guns. United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002).
It is beyond any reasonable dispute that Merica’s possession of the
pistol that day was “in furtherance of” the drug trafficking
offense.
The Government also presented sufficient evidence to show
that Merica “brandished” that pistol. As defined in 18 U.S.C.
§ 924(c)(4) (2000), to “brandish” means “to display all or part of
the firearm, or otherwise make the presence of the firearm known to
another person, in order to intimidate that person. . . .” In
discussing why Merica brought the pistol that particular day, Land
explained that Merica wanted to ensure Land understood that he was
responsible for the purchase money. Merica knew Land used
methamphetamine as they frequently used methamphetamine together at
Merica’s home. Because it is not unreasonable to conclude Merica
was concerned that Land would either use some of the drugs prior to
selling them, or, alternatively, steal Merica’s money, the jury
could reasonably infer that Merica showed the pistol to Land in
order to intimidate him.
For the foregoing reasons, we affirm Merica’s convictions
and sentence. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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