United States v. Green

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4824
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STERLING VERNARD GREEN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-01322-TLW)
Submitted: May 18, 2009 Decided: July 7, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a four-day trial, Sterling Vernard Green was
convicted by a jury of conspiracy to possess with the intent to
distribute and to distribute 50 grams or more of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846
(2000), and possession with the intent to distribute 5 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
The district court sentenced Green to concurrent terms of 252
months’ imprisonment. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but questioning
whether the district court erred in denying Green’s Fed. R.
Crim. P. 29 motion for judgment of acquittal. Green has also
filed a pro se supplemental brief. Finding no error, we affirm.
Rule 29 of the Federal Rules of Criminal Procedure
provides that a district court must enter a judgment of
acquittal where the evidence is insufficient to sustain a
conviction. Fed. R. Crim. P. 29(a). We review a district
court’s denial of a Rule 29 motion for judgment of acquittal de
novo. E.g., United States v. Perkins, 470 F.3d 150, 160
(4th Cir. 2006). “In conducting such review, we must uphold a
jury verdict if there is substantial evidence, viewed in the
light most favorable to the Government, to support it.” Id.Substantial evidence is “evidence that a reasonable finder of
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fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). Further, both direct and circumstantial evidence are
considered, and the government is permitted “all reasonable
inferences that could be drawn in its favor.” United States v.
Harvey, 532 F.3d 326, 333 (4th Cir. 2008). The defendant “must
carry an imposing burden to successfully challenge the
sufficiency of the evidence.” United States v. Martin, 523 F.3d
281, 288 (4th Cir. 2008) (citation omitted), cert. denied, 129
S. Ct. 238 (2008).
To prove conspiracy to possess with intent to
distribute and to distribute cocaine base, the government must
establish beyond a reasonable doubt that: (1) two or more
persons agreed to possess with intent to distribute and to
distribute the cocaine base; “‘(2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily
became a part of this conspiracy.’” United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008) (quoting Burgos, 94 F.3d at
857), cert. denied, 129 S. Ct. 137 (2008). The “gravamen of the
crime is an agreement to effectuate a criminal act.” Id. at 226(internal quotation marks and alteration omitted). A defendant
may be convicted of conspiracy without knowing all the
conspiracy’s details, as long as the defendant enters the
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conspiracy understanding its unlawful nature and willfully joins
in the plan on at least one occasion. Burgos, 94 F.3d at 858.
To prove possession with the intent to distribute
cocaine base, the Government was required to establish beyond a
reasonable doubt that Green: (1) knowingly; (2) possessed
cocaine base; (3) with the intent to distribute it. Id. at 873.
Possession may be actual or constructive. See 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.Intent to distribute may be inferred from a defendant’s
possession of drug-packaging paraphernalia or a quantity of
drugs larger than needed for personal use. United States v.
Fisher, 912 F.2d 728, 730 (4th Cir. 1990). We have held that
possession of a quantity of cocaine base slightly over five
grams, when combined with testimonial evidence, is sufficient to
support an inference of intent to distribute. United States v.
Lamarr, 75 F.3d 964, 973 (4th Cir. 1996).
With these standards in mind, our thorough review of
the trial transcript convinces us that Green was involved in “‘a
loosely-knit association of members linked . . . by their mutual
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interest in sustaining the overall enterprise of catering to the
ultimate demands of a particular drug consumption market’” –
Florence, South Carolina. Burgos, 94 F.3d at 858 (quoting
United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)).
Although “many conspiracies are executed with precision, the
fact that a conspiracy is loosely-knit, haphazard, or
ill-conceived does not render it any less a conspiracy—or any
less unlawful.” Id. We conclude that there was sufficient
evidence to support the jury‘s verdict on the conspiracy count.
As to the possession count, our review of the record
convinces us that Green had dominion and control over 40 or more
grams of cocaine base packaged in a manner to suggest sale. The
jury could infer Green’s knowing possession of the cocaine base.
The cocaine was found inside a jacket pocket that also contained
Green’s identification a bedroom identified as Green’s and from
which Green was observed exiting. We therefore conclude that
there was sufficient evidence to support the jury’s verdict on
the possession count. Further, after review of Green’s pro se
supplemental brief, we conclude it raises no meritorious issues
for appeal.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal. *
We therefore affirm the district court’s judgment. This court
requires that counsel inform Green, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Green requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Green. 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
*
This case was also held in abeyance for United States v.
Antonio, No. 07-4791, 311 Fed. App’x 679. This court’s decision
in Antonio does not change our analysis of Green’s appeal.
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