United States v. Griffin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4536
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS SHAMAR GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-103)
Argued: March 15, 2006 Decided: April 12, 2006
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, P.C.,
Wilmington, North Carolina, for Appellant. Jennifer P. May-Parker,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Christine Witcover
Dean, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
A jury convicted Nicholas Shamar Griffin of possession with
intent to distribute more than 5 grams of cocaine base (commonly
known as “crack cocaine”), possession of firearms in furtherance of
a drug trafficking crime, and possession of firearms by a convicted
felon, and the district court sentenced him to a 246 month-term of
imprisonment.1 On appeal, Griffin challenges his convictions and
his sentence. For the reasons set forth below, we affirm Griffin’s
convictions, but we vacate his sentence and remand for
resentencing.
I
Griffin first argues that the evidence is insufficient to
establish that he possessed the crack cocaine and firearms for
which he was charged. We disagree.
A.
Griffin’s possession of the crack cocaine is an essential
element of the § 841(a) charge, and his possession of the firearms
is an essential element of the §§ 922(g)(1) and 924(c) charges. To
1
These offenses were brought pursuant to 21 U.S.C. §
841(a)(1), 18 U.S.C. § 924(c), and 18 U.S.C. § 922(g)(1),
respectively. The district court sentenced Griffin to 186 months
of imprisonment on the § 841(a)(1) count, a concurrent 120-month
term on the § 922(g)(1) count, and a consecutive 60-month term on
the § 924(c) count.
2
meet its burden of proof as to possession, the government relied on
the theory of constructive possession, which holds that the
evidence establishes “such a nexus or relationship between the
defendant and the [contraband] that it is reasonable to treat the
extent of the defendant’s dominion and control as if it were actual
possession.” United States v. Smith, 407 F.2d 35, 37 (4th Cir.
1969) (citation and internal quotation marks omitted).2
In order to establish constructive possession of contraband,
the government must prove that the defendant “knows of its presence
and has the power to exercise dominion and control over it.”
United States v. Schocket, 753 F.3d 336, 340 (4th Cir. 1985).
Constructive possession “does not have to be exclusive, but can be
shared with others,” United States v. Wright, 991 F.2d 1182, 1187
(4th Cir. 1993), and “[a] defendant may have constructive
possession of contraband even if it is not in his immediate
possession or control,” United States v. Shorter, 328 F.3d 167, 172
(4th Cir. 2003). The government can prove constructive possession
by using either direct or circumstantial evidence. United States
v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).
2
Neither the district court’s jury instructions nor the
parties’ closing arguments are included in the appellate record.
However, the government does not argue on appeal that it
established that Griffin had actual possession of the firearms and
crack cocaine. We therefore limit our consideration to
constructive possession.
3
Although a defendant’s mere presence at, or joint tenancy of,
a location where contraband is found, or his mere association with
another contraband possessor, is insufficient to establish
constructive possession, United States v. Morrison, 991 F.2d 112,
115 (4th Cir. 1993); United States v. Rusher, 966 F.2d 868, 878
(4th Cir. 1992); “where other circumstantial evidence . . . is
sufficiently probative, proximity to contraband coupled with
inferred knowledge of its presence” will support such a finding.
United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980)
(citation and internal quotation marks omitted). Consistent with
this principle, we have held that the fact that contraband is found
in a defendant’s residence “permits an inference of constructive
possession” and that this inference is “bolstered” by evidence that
the contraband is in plain view or that material associated with
the contraband is also in the residence. Shorter, 328 F.3d at 172.
However, constructive possession does not require proof that the
defendant actually owned the property on which the contraband was
found. See, e.g., United States v. Poore, 594 F.2d 39, 43 (4th
Cir. 1979) (affirming constructive possession finding where the
defendant resided in another person’s apartment).
B.
We must sustain the verdict “if there is substantial evidence,
viewed in the light most favorable to the Government, to uphold the
4
jury’s decision.” Burks v. United States, 437 U.S. 1, 17 (1978).
Substantial evidence is 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.”
Burgos, 94 F.3d at 862. Viewed in the light most favorable to the
government, the evidence establishes the following.
Before August 6, 2002, Brunswick County, North Carolina,
Sheriff’s Deputy Clint Simpson saw Griffin numerous times while
Simpson conducted surveillance or undercover operations in the
Longwood community in Brunswick County. Griffin’s girlfriend lived
in a trailer in Longwood, Griffin stayed at the trailer frequently,
and a vehicle registered to and driven by Griffin was “always at
the house.” J.A. 21. Deputy Simpson saw Griffin come and go from
the trailer several times. On numerous occasions, Deputy Simpson
saw Griffin standing among a group of people in front of the
trailer. Deputy Simpson also saw Griffin engage in brief
encounters with drivers in the same area. If a vehicle slowed down
near the group Griffin was with, Griffin would approach the
vehicle, lean into it, talk to the driver, and stick his hand in
the window. These interactions lasted 30 seconds or less. Other
persons engaged in the same types of encounters in Griffin’s
presence.
In March 2002, Brunswick County Sheriff’s Office Narcotics
Agent Israel West arranged for an informant to make a controlled
5
drug purchase. A video camera captured a brief meeting between the
informant and Griffin, within 100 yards of the trailer.
Immediately after this meeting, the informant returned to Agent
West and gave him a small piece of a substance which had an
appearance that was consistent with crack cocaine.
In the early morning of August 6, law enforcement officers
went to the trailer where Griffin’s girlfriend lived to execute an
arrest warrant for Griffin. An occupant of the trailer permitted
the officers to enter and told them Griffin was in one of the
bedrooms. The officers found Griffin and a woman inside the locked
bedroom. Griffin was wearing a pair of boxer shorts when the
officers first encountered him, and they asked him to put on his
pants. The officers then searched Griffin and seized marijuana
from his pants pockets. The officers also seized a pill bottle
that lay on the floor near Griffin’s foot; the bottle contained a
substance that appeared to be crack cocaine. The officers took
Griffin into custody.
That afternoon, law enforcement officers searched the trailer
pursuant to a search warrant. The search of the bedroom where
Griffin was arrested yielded drugs and drug paraphernalia, firearms
and ammunition, and indicia of Griffin’s residence in the trailer.
6
Specifically, the officers found 2.8 grams of crack cocaine in
a small box sitting atop a television3 and 11.3 grams of crack
cocaine inside one of two locked safes found in the room. The safe
containing the crack cocaine also contained an envelope on which
Griffin’s name was handwritten. The envelope contained a letter
dated August 5, 2002, which verified that Griffin was employed by
a construction company as a sub-contractor and had been paid; and
a pay stub, dated August 2, 2002, that bore Griffin’s name.
The officers also found a shotgun in the bedroom closet, a
loaded semi-automatic pistol in a cigar box near the bed, a loaded
revolver on the floor near the bed and adjacent to one of the
safes, and a rifle (a loaded magazine designed to fit this rifle
was found on a chest of drawers adjacent to the bed).
Additionally, the officers found marijuana, postal scales, small
plastic bags, loose bullets, currency, and several items of men’s
clothing in the bedroom.
C.
We conclude that this evidence is more than sufficient to
establish Griffin’s constructive possession of the crack cocaine
and firearms. From this evidence, the jury was permitted to find
that Griffin was a crack cocaine dealer who operated near, and
3
At trial, the parties stipulated that the weight of this
crack cocaine was two grams.
7
resided in, his girlfriend’s trailer. In addition, the jury could
find specifically that Griffin had knowledge of, and dominion and
control over, the crack cocaine and firearms because of his early
morning presence in the bedroom where those items were found, the
fact that a large quantity of crack cocaine was found with his
personal papers in the locked safe that was in the bedroom, and the
fact that the firearms and ammunition were found throughout the
bedroom in readily accessible places within a relatively short time
after Griffin was arrested. See generally United States v.
Gallimore, 247 F.3d 134, 137 (4th Cir. 2001) (upholding finding of
constructive possession of firearms based on evidence that some of
the firearms were found in a safe that also contained the
defendant’s personal papers, the firearms were discovered within 24
hours after the defendant had left the house, and the firearms were
disbursed in a manner that indicated they had been in the house for
more than 24 hours); United States v. Jones, 204 F.3d 541, 543-44
(4th Cir. 2000) (“Given that the cocaine . . . was found behind a
dresser drawer in the bedroom from which the officer saw Jones exit
and in which authorities discovered Jones’ personal papers, we
cannot say that the district court, sitting as trier of fact, erred
in finding that Jones possessed the cocaine.”). Accordingly, we
affirm Griffin’s convictions.4
4
We have considered Griffin’s other arguments concerning his
convictions and find them to be without merit.
8
II
Griffin also argues that his sentence is unconstitutional
under United States v. Booker, 543 U.S. 220 (2005). The government
concedes that Griffin must be resentenced under Booker, noting that
the district court plainly erred by relying at sentencing on a
greater drug quantity than that alleged in the indictment and found
by the jury. See United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). We agree that Griffin’s sentence runs afoul of Booker and
Hughes.5 Therefore, we vacate Griffin’s sentence and remand for
resentencing in accordance with those cases.6
III
Based on the foregoing, we affirm Griffin’s convictions,
vacate his sentence, and remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
5
Just as we noted in Hughes, we “offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Griffin’s sentencing. 401 F.3d at 545 n.4.
6
Because we are remanding this case for resentencing, we
decline to address Griffin’s argument that the district court erred
in calculating his sentencing guideline range. See Hughes, 401
F.3d at 556 n.15 (“we do not hold that in every case involving a
Booker issue, this court must first address alleged calculation
errors before vacating and remanding for resentencing”).
9