United States v. Rushie

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-5018
ROBERT EVERTON RUSHIE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-396)
Submitted: July 30, 2002
Decided: September 18, 2002
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Donald K. Tisdale, Sr., GRACE, HOLTON, TISDALE & CLIFTON,
P.A., Winston-Salem, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Sandra J. Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. RUSHIE
OPINION
PER CURIAM:
Robert Everton Rushie was convicted of possession with intent to
distribute 970.2 grams of cocaine hydrochloride, 21 U.S.C. § 841(a)
(2000), and possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2000). Rushie was sentenced to a 210-month term of
imprisonment on the possession of cocaine conviction and a concur-
rent 120-month term of imprisonment on the possession of a firearm
conviction. Rushie appeals his convictions on both charges and the
calculation of his sentence. We affirm.
Rushie asserts the district court erred in its denial of his Fed. R.
Crim. P. 29 motions on both counts of conviction. He contends insuf-
ficient evidence established he possessed the cocaine seized from him
at the site of the controlled buy. We find that a written statement
Rushie provided to Greensboro City police upon his arrest, in con-
junction with the testimony provided by the officers at the scene of
the controlled buy, provided sufficient evidence for a reasonable jury
to find Rushie knowingly possessed the cocaine beyond a reasonable
doubt. See Glasser v. United States, 315 U.S. 60, 80 (1942). Like-
wise, there was sufficient evidence that Rushie exercised constructive
possession of the gun found in his home. See United States v. Galli-
more, 247 F.3d 134, 136-37 (4th Cir. 2001); United States v. Jackson,
124 F.3d 607, 610 (4th Cir. 1997). Accordingly, the district court did
not err in denying Rushie’s motions for acquittal.
In setting Rushie’s base offense level for sentencing purposes, the
district court attributed to him the cocaine seized at the controlled buy
and the cocaine base seized from the van he drove to the buy. Rushie
was acquitted of possession of the cocaine base at a jury trial. Rushie
contends the district court improperly attributed the cocaine base to
him after he had been acquitted of the possession charge and without
finding by a preponderance of the evidence that he possessed the
challenged drugs. At the sentencing hearing, the district court found,
by a preponderance of evidence, that Rushie possessed the cocaine
base. See United States v. Watts, 519 U.S. 148, 155-57 (1997). The
district court did not clearly err in its factual findings. United States
v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).
UNITED STATES v. RUSHIE 3
Rushie also challenges the enhancement of his sentence for
obstruction of justice pursuant to U.S. Sentencing Guideline Manual
§ 3C1.1 (2001). This claim is meritless. The district court did not err
in its finding that Rushie knowingly provided materially perjurious
testimony on two matters at his trials. See United States v. Self, 132
F.3d 1039, 1041 (4th Cir. 1997); United States v. Stotts, 113 F.3d 493,
497 (4th Cir. 1997).
Accordingly, we affirm Rushie’s convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED