United States v. Black

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4658
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ADOLPHUS BLACK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CR-04-100)
Submitted: August 16, 2006 Decided: September 21, 2006
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Edward Riley, IV, BOONE, BEALE, COSBY & LONG, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Brian Whisler, Michael C. Wallace, Sr., Assistant United States
Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Adolphus Black was convicted of
possessing at least 200 but less than 300 grams of powder cocaine,
in violation of 21 U.S.C. § 841 (2000) (“Count One”), being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e) (2000) (“Count Two”), and distributing fifty grams or
more of crack cocaine, in violation of 21 U.S.C. § 841 (“Count
Three”). He was sentenced to 360 months’ imprisonment. Black
challenges the district court’s denial of his motion for a judgment
of acquittal pursuant to Federal Rule of Criminal Procedure 29 and
his sentence. Finding no error, we affirm.
Taken in the light most favorable to the Government, the
record establishes the following facts. In the fall of 2003 and
early winter of 2004, the City of Richmond, Virginia, Police
Department utilized a confidential informant, Darrell Woolridge
(“Woolridge”), to purchase crack and powder cocaine from an
individual later determined to be Black.1 In February 2004,
Detective Mark Dunn instructed Woolridge to order sixty-two grams
of crack from Black. Prior to the sale, law enforcement began to
surveil 1405 Ivy Mount Drive, Apt. A (the “apartment”), which law
enforcement officers suspected Black used.
1
At the beginning of the operation, law enforcement agents did
not know Black’s identity. However, Black’s identity was
established in February 2004, when another Richmond police officer
stopped Black’s vehicle, a 1990 Honda Civic, license plate number
JHA-7482, and requested to see Black’s driver’s license.
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Before departing for the controlled purchase, Det. Dunn
thoroughly searched both Woolridge’s vehicle and his person to
ensure that he did not have any narcotics or money. Finding
nothing, Det. Dunn gave Woolridge $2000 to purchase crack from
Black, and followed Woolridge to the site of the buy; Det. Dunn
never lost sight of Woolridge. After completing the transaction,
Woolridge drove to the established meeting area, which was only a
very short distance from the site of the buy. Det. Dunn followed
Woolridge the entire time, and recovered approximately 59 grams of
crack from him. Det. Dunn again searched Woolridge and the vehicle
to ensure he had no other drugs or money.
On March 18, 2004, Woolridge, at the behest of police
officials, called Black and ordered 500 grams of cocaine. Black
informed Woolridge he was in New York, but that he would return to
Richmond on March 22 with the drugs. Law enforcement officials
accordingly staked out I-95 for Black’s vehicle. After spotting
Black’s vehicle, law enforcement stopped it and arrested Black, the
sole occupant therein. Det. Dunn testified that the man he
arrested on March 22 was the same man he saw with Woolridge on
February 11. At the time of his arrest, Black was carrying a
cellular telephone; law enforcement officials dialed the number
Woolridge used to order the narcotics, and Black’s cell phone rang.
Black also possessed a key to the apartment on Ivy Mount Road.
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After arresting Black, Det. Dunn examined the vehicle and
noticed a single black glove lying on the driver’s side floor
board, inside of which was a plastic baggie full of a white
substance. Forensic testing revealed the substance to be 248.6
grams of powder cocaine. Law enforcement then obtained a warrant
to search the apartment. During the course of the search, officers
recovered a scale, a single black glove, and a handgun from a small
end table in the living room. In a dresser in the bedroom, the
officers found several documents bearing Black’s name.
Temica Gay, Black’s girlfriend at the time, testified
that though she now resides there herself, she and Black shared the
apartment between September 2003 and March 2004. Ms. Gay explained
that Black stayed at the apartment “whenever he came to Virginia.”
Because she gave Black a key to the apartment, he had complete
access thereto, and was often at the apartment alone while Ms. Gay
was at work. Although they shared the bedroom at one point, Black
had begun to sleep on the living room couch. The end table from
which the gun, scale, and glove were seized was located near the
couch on which Black slept. Ms. Gay testified that she recognized
the black glove as being Black’s, but that she had never seen the
handgun.
Black first challenges the sufficiency of the
Government’s evidence supporting the guilty verdicts. We review
the denial of a Rule 29 motion de novo. United States v. Alerre,
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430 F.3d 681, 693 (4th Cir. 2005). Where, as here, the motion was
based on a claim of insufficient evidence, “[t]he 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). We consider both
circumstantial and direct evidence, “and allow the government 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). Further, on appellate review, we “may
not weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
To establish a violation of 21 U.S.C. § 841(a)(1), the
Government must prove beyond a reasonable doubt that Black:
(1) knowingly; (2) possessed the controlled substance; (3) with the
intent to distribute it. United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996) (en banc). 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). Possession need not be exclusive but may be
joint, and “may be established by direct or circumstantial
evidence.” Id.; United States v. Wright, 991 F.2d 1182, 1187 (4th
Cir. 1993). This court has held that “where other circumstantial
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evidence . . . is sufficiently probative, proximity to contraband
coupled with inferred knowledge of its presence will support a
finding of guilt on such charges.” United States v. Laughman, 618
F.2d 1067, 1077 (4th Cir. 1980) (internal quotations and citation
information omitted). Intent to distribute may be inferred if the
amount of drugs found exceeds an amount normally associated with
personal consumption. Wright, 991 F.2d at 1187.
To prove distribution, the Government had to show Black:
(1) knowingly or intentionally distributed the controlled substance
stated in the indictment, and (2) knew, at the time of
distribution, that the substance distributed was a controlled
substance. United States v. Brower, 336 F.3d 274, 276 (4th Cir.
2003) (internal quotations and citation information omitted). To
distribute a controlled substance means to deliver it; delivery, in
turn, is “the actual, constructive, or attempted transfer of a
controlled substance . . . .” United States v. Washington, 41 F.3d
917, 919 (4th Cir. 1994) (internal quotations and citation
information omitted).
Viewing the evidence in the light most favorable to the
Government, a rational trier of fact could conclude that on March
22, Black possessed the cocaine with intent to distribute it, and
that on February 11, Black distributed crack cocaine. Therefore,
we find the jury’s unanimous verdicts were supported by substantial
evidence.
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Turning to Count Two, the felon-in-possession charge, we
note that the parties stipulated to Black’s prior felony conviction
and that the handgun recovered traveled in interstate commerce.
Thus, the only contested issue at trial was whether Black possessed
the handgun. Possession may be actual, constructive, or joint.2
United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001).
“[T]o establish constructive possession, the government must
produce evidence showing ownership, dominion, or control over the
contraband itself or the premises or vehicle in which the
contraband is concealed.” United States v. Blue, 957 F.2d 106, 107
(4th Cir. 1992) (quotations and citation information omitted).
Possession may be established by circumstantial evidence.
Schocket, 753 F.2d at 340. The discovery of contraband at the
defendant’s home “permits an inference of constructive possession.”
United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003).
The Government’s evidence was sufficient to support the jury’s
guilty verdict on this count. Constructive possession may be
established by showing the defendant had ownership or control over
the premises on which contraband is discovered. United States v.
Hines, 39 F.3d 74, 78 (4th Cir. 1995), vacated on other grounds,
516 U.S. 1156 (1996); United States v. Kitchen, 57 F.3d 516, 521
(7th Cir. 1995). Law enforcement officials discovered a handgun in
2
The Government did not attempt to prove Black actually
possessed the handgun.
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the Ivy Mount Road apartment. Ms. Gay testified that she lived in
the apartment, that she gave Black a key to the apartment, that
Black had unrestricted access to the apartment, and that she never
saw the handgun before. Ms. Gay further testified that Black lived
with her intermittently between September 2003 and March 2004, that
Black stayed in the apartment “every time” he came to Virginia, and
that he was alone in the apartment while she was at work. Trial
testimony further established that the apartment contained several
papers — including a traffic citation — bearing Black’s name. See
Shorter, 328 F.3d at 171 (papers found in Shorter’s home
“sufficient to link Shorter to the residence”). Considering that
Black had unfettered access to the apartment, kept personal papers
there, and inhabited the apartment with the latitude of a resident
— albeit a part-time resident — the jury could have reasonably
concluded Black had sufficient dominion and control over the
apartment to support a finding of constructive possession.
Alternatively, the jury could have reasonably found
sufficient evidence of constructive possession in light of the
Government’s evidence of Black’s dominion and control over the
handgun itself. Ms. Gay testified that though she and Black had,
for a time, slept together in the bedroom, he began sleeping on the
couch. Law enforcement recovered the handgun from the small end
table located adjacent to the couch on which Black slept. The
close proximity between the handgun and the couch, coupled with Ms.
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Gay’s testimony that she had never seen the firearm before,
supports the guilty verdict. The Government’s evidence of Black’s
constructive possession of the handgun is bolstered by the fact
that one of Black’s black gloves was discovered on this same end
table, the match to which was recovered from Black’s vehicle on the
night of his arrest. Ms. Gay testified she had seen Black with a
pair of black gloves and that she had seen a black glove on the end
table. Under either theory, the Government’s evidence was
sufficient to support the guilty verdict.
Lastly, Black argues the district court improperly
considered his underlying state court convictions in designating
him a career offender and sentencing him pursuant to the Armed
Career Criminal Act. Black contends that, because the record does
not conclusively prove that his Sixth Amendment right to counsel
was observed during the course of these underlying proceedings, the
district court should not have considered those convictions as
predicate offenses for enhancement purposes.
Black’s argument lacks merit. There is a presumption of
regularity afforded final criminal judgments. Parke v. Raley, 506
U.S. 20, 29 (1992). A defendant who challenges prior convictions
used to enhance his sentence in a later offense bears the burden of
showing that the prior convictions were invalid. United States v.
Jones, 977 F.2d 105, 109-11 (4th Cir. 1992). Black offers nothing
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more than a conclusory assertion to support his claim; absent more,
Black’s claim fails.
For the foregoing reasons, we affirm Black’s convictions
and sentence. 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
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