United States v. Cedrick Saulsberry

Case: 11-30865 Document: 00512089150 Page: 1 Date Filed: 12/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2012
No. 11-30865
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CEDRICK D. SAULSBERRY,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:10-CR-290-1
Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Cedrick Saulsberry was convicted by a jury of possession with intent to
distribute powder cocaine, crack cocaine, and marijuana in violation of 21 U.S.C.
§ 841(a)(1), and possession of a firearm in furtherance of drug trafficking in
violation of 18 U.S.C. § 924(c). He was sentenced to 65 months of imprisonment
on the drug counts, to run concurrently, and 60 months on the firearms count to
run consecutively.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-30865
Saulsberry argues that the evidence is devoid of anything proving that he
actually or constructively possessed any of the drugs. He contends that he was
merely present at the home of his mother, Ms. Green, when law enforcement
searched the residence and found drugs, paraphernalia, and guns. He states
that most of the drugs were found in a room that was formerly his bedroom
when he was growing up. He argues that his convictions for possession with
intent to distribute these various drugs, and aiding and abetting, therefore
should be reversed. Because Saulsberry did not move for a judgment of
acquittal, we review his sufficiency claim for “a manifest miscarriage of justice,”
which is found if the record is “devoid of evidence pointing to guilt.” See United
States v. Miller, 576 F.3d 528, 529-30 (5th Cir. 2009) (internal quotation marks
and citation omitted).
Possession of a controlled substance can be actual or constructive, and may
be proved by circumstantial evidence. See United States v. Galvan-Garcia, 872
F.2d 638, 640 (5th Cir. 1989). “This Court has defined constructive possession
as ownership, dominion, or control over the contraband, or as dominion over the
premises in which the contraband is found.” United States v. Hinojosa, 349 F.3d
200, 203 (5th Cir. 2003) (citations omitted).
Saulsberry was found guilty of possessing with the intent to distribute
powder cocaine, crack cocaine, and marijuana. The drugs were found at 709
Sixth Street, the address he used for his cellular phone and loan collection bills.
Saulsberry was living in and working in the house where the drugs and drug
paraphernalia were found. The drugs, men’s clothing, and mail addressed to
Saulsberry were found in the bedroom and closet. He admitted that the room
was his room. He also used one of the other bedrooms in the house as his
barbershop. A set of digital scales of the type used to weigh drugs was found in
his barbershop. The drugs were not merely found in the home of another but
were found in Saulsberry’s mother’s home where he resided and worked. The
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drugs and drug paraphernalia were found in Saulsberry’s bedroom and closet
and in the room he used as his barbershop.
In an attempt to prove that he did not live at this house, Saulsberry
presented testimony that he lived with his girlfriend, DeAnna Dickerson, at her
apartment and sometimes with another woman when he and Dickerson argued.
The jury could disregard this testimony for several reasons. First, Saulsberry
admitted that the room in his mother’s home was his room. Second, the room
contained men’s clothing and mail addressed to Saulsberry at that address.
Third, a search of Dickerson’s apartment revealed no men’s clothing nor any
mail addressed to Saulsberry.
The record is not devoid of evidence showing that Saulsberry had
constructive possession of the drugs due to his dominion and control over the
places in the house where the drugs and paraphernalia were found, specifically
the bedroom, the closet, and the barbershop. See United States v. Arnold, 467
F.3d 880, 883-84 (5th Cir. 2006).
Saulsberry argues that the record is devoid of evidence showing that he
committed a drug trafficking offense, possessed any of the firearms, or possessed
the firearms in furtherance of a drug trafficking offense. His arguments that
there is no evidence that he committed a drug trafficking offense, and that there
is no evidence that he had constructive possession of the firearms are without
merit for the same reasons as discussed above in connection with the possession
of the drugs. See Arnold, 467 F.3d at 884. Assuming arguendo that he had
constructive possession of the drugs and firearms, Saulsberry argues that the
record is devoid of evidence that he possessed the firearms in furtherance of a
drug trafficking offense.
We have defined “furtherance” as “the act of furthering, advancing, or
helping forward.” United States v. Ceballos-Torres, 218 F.3d 409, 412 (5th Cir.
2000) (internal quotation marks and citation omitted). Having an accessible
firearm may further drug trafficking by, inter alia, defending against robbery,
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providing protection during a deal, and allowing the trafficker to defend his turf.
Id. Mere presence of a firearm is not enough, however; there must be evidence
specific to the defendant that the possession actually furthered the drug
trafficking offense. Id. at 414. Factors courts consider include (1) the type of
drug activity being conducted, (2) accessibility of the firearm, (3) the type of
weapon, (4) whether the weapon is stolen, (5) whether the possession was legal
or illegal, (6) whether the gun is loaded, (7) proximity to drugs or drug profits,
and (8) the time and circumstances under which the gun is found. Id. at 414-15.
In Saulsberry’s case, officers located a 12-gauge shotgun above
Saulsberry’s bedroom closet where a hole was cut or punched through the ceiling
and the firearm was hidden in the rafters. Officers found a .380 semiautomatic
pistol in Saulsberry’s bedroom dresser, along with cocaine packaged in baggies
for distribution, and they found a .22 bolt action rifle in the bedroom closet near
two backpacks containing over two pounds of powder cocaine and a large bag of
marijuana. Saulsberry notes that the handgun was inoperable. That fact “does
not insulate the defendant from the reach of section 924(c).” United States v.
Coburn, 876 F.2d 372, 375 (5th Cir. 1989). The Supreme Court has recognized
that even “an unloaded firearm is a dangerous weapon capable of provoking a
violent response.” Id. (citing McLaughlin v. United States, 476 U.S. 16, 17-18
(1986)). All three weapons were accessible to Saulsberry and were possessed in
his bedroom along with ammunition, a bullet-proof vest, and a substantial
amount of drugs. The jury heard expert testimony that the drugs were packaged
for distribution and that the quantity of drugs found was consistent with
distribution and not for personal use. Expert testimony noted that the firearms,
ammunition, and bullet-proof vest were consistent with firearm usage for drug
trafficking. Saulsberry possessed three firearms that were kept in close
proximity to the drugs and were easily accessible to him. The factors of the type
of drug activity - distribution, accessibility, and proximity to the drugs support
the conclusion that the record was not devoid of evidence that Saulsberry
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possessed the firearms in furtherance of drug trafficking. See Ceballos-Torres,
218 F.3d at 415; see also United States v. Nunez-Sanchez, 478 F.3d 663, 669-70
(5th Cir. 2007) (holding that the evidence was sufficient to show that possession
was in furtherance of drug trafficking where defendant had in his bedroom 172.6
grams of cocaine, small bags to facilitate distribution, over $2,000 in cash, and
a semiautomatic rifle two feet from the drugs).
Saulsberry and the Government both address Saulsberry’s conviction in
terms of aiding and abetting under 18 U.S.C. § 2. Because we have determined
that the record is not devoid of evidence to support his convictions as a principal,
there is no need to separately address whether the evidence also supports his
convictions as an aider and abetter.
AFFIRMED.
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