United States v. Anyakoha

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4773
AKAY JORDAN ANYAKOHA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Raymond A. Jackson, District Judge.
(CR-97-420-A)
Submitted: July 30, 1999
Decided: August 20, 1999
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
David S. Bracken, DAVID S. BRACKEN, P.C., Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Scott S. Dahl,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Akay Jordan Anyakoha appeals from an eighty-four month sen-
tence imposed following his convictions for conspiracy to possess
with the intent to distribute and to distribute heroin, 21 U.S.C.A.
§ 846 (West Supp. 1999), conspiracy to import heroin into the United
States, 21 U.S.C.A. §§ 952(a), 963 (West Supp. 1999), and possession
with the intent to distribute heroin, 21 U.S.C.§ 841(a) (1994). For the
reasons set forth below, we vacate his conviction for substantive
offense of possession with the intent to distribute heroin, affirm his
conspiracy convictions, and remand this case to the district court for
resentencing.
We find that the evidence presented at trial did not establish that
the Eastern District of Virginia was the proper venue on the substan-
tive possession count. Where a defendant is charged with more than
one crime, venue must be proper with respect to each count. See
United States v. Cabrales, 118 S. Ct. 1772, 1776-77 (1998). The Gov-
ernment did not show that Anyakoha had the authority or ability to
exercise dominion and control over the package of drugs while the
package was in the Eastern District of Virginia. See United States v.
Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc); United States v.
Medina-Ramos, 834 F.2d 874, 877 (10th Cir. 1987). Moreover, there
was no evidence that a co-conspirator possessed the heroin in the
Eastern District of Virginia, so Anyakoha's possession conviction
cannot be based on an aider and abettor theory. See Cabrales, 118 S.
Ct. at 1776. Thus, we find that the evidence adduced at trial did not
support venue on Count 3 of the indictment in the Eastern District of
Virginia.
Anyakoha correctly concedes that the Eastern District of Virginia
was the proper venue for the two conspiracy counts. We have
reviewed the record and find that the evidence, when viewed most
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favorably to the Government, was sufficient to support his convic-
tions for conspiring to import, to possess with the intent to distribute,
and to distribute heroin. See Burgos, 94 F.3d at 862.
Accordingly, we vacate Anyakoha's conviction for possession with
the intent to distribute, 21 U.S.C. § 841(a), and affirm his convictions
for conspiracy to import heroin, 21 U.S.C.A. §§ 952(a), 963, and for
conspiracy to possess with the intent to distribute and to distribute
heroin, 21 U.S.C.A. § 846. We remand this case to the district court
for resentencing. 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 IN PART, VACATED AND REMANDED IN PART
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