United States v. Lowery

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4313
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK LOWERY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00252)
Submitted: June 20, 2007 Decided: August 21, 2007
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kimberly Y. Best, THE BEST LAW FIRM, P.L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Lowery was convicted of possession with intent to
distribute marijuana and aiding and abetting the same, in violation
of 21 U.S.C. § 841 (2000). He was sentenced to twenty-seven months
in prison. Lowery now appeals, raising two issues. We affirm.
I
Lowery first claims that the evidence was insufficient to
convict him. “The verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). “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.’” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc)), cert. denied, 126 S. Ct. 1669 (2006). We review
both direct and circumstantial evidence and permit the
“[G]overnment 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). We do not review
the credibility of witnesses, and we assume the jury resolved all
contradictions in the Government’s favor. United States v. Sun,
278 F.3d 302, 313 (4th Cir. 2002).
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To establish a violation of 21 U.S.C. § 841, the
Government must prove beyond a reasonable doubt that the defendant:
(1) knowingly; (2) possessed the controlled substance; (3) with the
intent to distribute it. United States v. Burgos, 94 F.3d at 873.
Possession may be actual or constructive. 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). Intent to distribute
may be inferred if the amount of drugs found in the defendant’s
possession exceeds an amount normally associated with personal
consumption. United States v. Wright, 991 F.2d 1182, 1187 (4th
Cir. 1993). “To prove aiding and abetting the crime of possession
of drugs with intent to distribute the government must connect [the
defendant] with . . . possession and intent to distribute.” United
States v. Kelly, 888 F.2d 732, 742 (11th Cir. 1989).
Viewed in the light most favorable to the Government, the
evidence at trial established that Philip Ductan agreed to sell
twenty pounds of marijuana to Mandrel Dunn for $12,000 and to
deliver the drug to Dunn at a Charlotte restaurant. Unbeknownst to
Ductan, Dunn was a police informant. Ductan, Landis Richardson,
and Lowery traveled to Charlotte in two vehicles: a blue Ford
Expedition and a Chevy Tahoe registered to Lowery. Prior to
Ductan’s, Richardson’s and Lowery’s arrival at the restaurant,
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officers saw the cars stopped at a light. Occupants of the
Expedition appeared to converse with Lowery, who was driving the
Tahoe.
Lowery, Richardson, and Ductan arrived at the restaurant
in the Expedition. Dunn and an undercover police officer met them.
After greeting Ductan, Dunn and the officer visited the restroom.
The officer noticed that a man followed them into the restroom and
followed them out. The officer surmised that the man (Lowery) was
surveilling them. Once Lowery and the officer were back outside,
Ductan told them that the marijuana was in his truck. The men
walked to the Expedition. Richardson and Lowery sat in the front
seat. Ductan got into the right seat of the second row, and Dunn
sat next to him. Ductan showed Dunn and the officer, who was
standing outside the truck, about a pound of marijuana that was
concealed in the truck’s back row of seats. Dunn exited the truck,
telling Lowery and the others that he had to go get the money. At
that point, the officer gave a “take-down” signal, alerting other
officers who were standing by that they should approach and arrest
the truck’s occupants.
During the search incident to Lowery’s arrest, officers
recovered a set of car keys that operated the Tahoe, which was
parked at a nearby motel. Inside the Tahoe, they detected a strong
odor of marijuana and found Lowery’s birth certificate, the
vehicle’s registration showing that the Tahoe was registered in
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Lowery’s name, a gun, and approximately eighteen pounds of
marijuana.
This evidence was sufficient to convict Lowery of the
offense. Officers found eighteen pounds of marijuana—a
distribution quantity and the bulk of the expected delivery to
Dunn—inside Lowery’s vehicle. Furthermore, Lowery accompanied
Ductan and Richardson to the site of the expected transaction,
apparently surveilled Dunn and the undercover officer when they
went to the restroom, and watched them as Ductan showed them the
marijuana in the Expedition.1
II
Lowery also challenges his sentence of twenty-seven
months. He contends that sentencing enhancements for possession of
a firearm and obstruction of justice violate the Sixth Amendment
because the facts supporting those enhancements were determined by
the district court based on a preponderance of the evidence.
We review a sentence imposed after United States v.
Booker, 543 U.S. 220 (2005), to determine whether the sentence is
“within the statutorily prescribed range and reasonable.” United
1
In a somewhat related argument, Lowery contends that his
conviction is inconsistent with his acquittal of conspiracy to
distribute marijuana. A defendant cannot challenge a conviction
simply because it may be inconsistent with a verdict of acquittal
on another count. United States v. Powell, 469 U.S. 57, 66 (1984);
United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990).
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States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).2 “[A]
sentence within the proper advisory guideline range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006) (citations omitted).3 After Booker, as before,
such sentencing factors are determined by judges based on a
preponderance of the evidence. See United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005). Elements of the offense must be
admitted by the defendant or determined by a jury beyond a
reasonable doubt; however, sentencing factors are decided by the
judge based on the lower standard of proof. Id. We therefore
reject Lowery’s claim that the district court’s determination of
sentencing factors violated the Sixth Amendment.
Here, Lowery was sentenced within the statutory maximum
and within the properly calculated guideline range of twenty-seven
to thirty-five months. Further, the district court took into
account the § 3553(a) factors when imposing sentence. We conclude
that his sentence was reasonable.
III
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
2
Lowery does not contend that his sentence was outside the
statutorily prescribed range.
3
Similarly, Owens does not attack the calculation of the
advisory guideline range. Nor would such an attack be successful,
as our review of the record establishes that the range was
correctly calculated.
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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