United States v. Michael Felton , 545 F. App'x 208 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL FOSTER FELTON, a/k/a Mike,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:11-cr-00003-JFM-16)
Submitted: October 18, 2013 Decided: November 4, 2013
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Ayn B. Ducao, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Michael Foster Felton was
convicted of one count of conspiracy to distribute and possess
with intent to distribute, including but not exclusive to a
public housing facility or public school, one kilogram or more
of heroin, in violation of 21 U.S.C. §§ 841, 846, 860
(2006), and one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (2006). Felton
challenges the sufficiency of the evidence supporting the
convictions. We affirm.
We review de novo the sufficiency of the evidence
supporting a conviction. United States v. McLean, 715 F.3d 129,
137 (4th Cir. 2013). We must determine whether, viewing the
evidence in the light most favorable to the Government and
accepting the factfinder’s credibility determinations, the
verdict is supported by substantial evidence, that is, “evidence
that 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. King, 628 F.3d 693, 700
(4th Cir. 2011) (internal quotation marks omitted). “A
defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” United States v.
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Engle, 676 F.3d 405, 419 (4th Cir.) (internal quotation marks
and citations omitted), cert. denied, 133 S. Ct. 179 (2012).
Under 18 U.S.C. § 922(g)(1), it is unlawful for any
person convicted of a crime punishable by a term exceeding one
year to possess a firearm. Proof of actual or exclusive
possession is not necessary; constructive or joint possession is
sufficient. United States v. Lawing, 703 F.3d 229, 240 (4th
Cir. 2012), cert. denied, 133 S. Ct. 1851 (2013). “Constructive
possession is established when the government produces evidence
that shows ownership, dominion, or control over the contraband
itself or the premises or vehicle in which the contraband is
concealed.” Id. (internal quotation marks omitted).
Constructive possession is a fact-specific inquiry. Id.
Because Felton did not seek a judgment of acquittal on
this charge, review is for plain error. Under this standard of
review the court must find (1) an error; (2) that is plain; and
(3) that affects substantial rights. United States v. Wallace,
515 F.3d 327, 331-32 (4th Cir. 2008). Even if these criteria
are met, the error will not be noticed unless it seriously
affects the fairness, integrity, or public reputation of the
proceedings. Id. at 332.
Felton argues that he did not live at the apartment
where the firearm was found and he did not have constructive
possession of the firearm. We conclude otherwise and find that
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there is substantial evidence supporting the conviction for
being a felon in possession of a firearm. Felton indicated to
law enforcement that he lived at the apartment. The one bedroom
apartment’s closets contained men’s clothing and shoes. Felton
gave the address to others and he was present at the apartment
when law enforcement came during the course of the investigation
and weeks later when the search warrant was executed.
Accordingly, we conclude that the evidence was sufficient to
show that Felton had constructive possession of the firearm.
Felton also contends that there is insufficient
evidence to support his drug conspiracy conviction. * To obtain a
conviction for conspiracy to possess with the intent to
distribute a controlled substance, the Government must prove the
following essential elements: (1) an agreement between two or
more persons to possess with the intent to distribute the
controlled substance; (2) the defendant’s knowledge of the
conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy. United States v. Yearwood, 518
F.3d 220, 225-26 (4th Cir. 2008). Once the Government proves
the existence of a conspiracy, the evidence need only establish
*
Felton’s counsel has submitted this issue under Anders v.
California, 386 U.S. 738 (1967), stating that he can find no
legal basis to support the claim. Felton’s position is that he
should not have been convicted of this offense.
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a “slight connection” between the defendant and the conspiracy
to support the conviction. United States v. Green, 599 F.3d
360, 367 (4th Cir. 2010). Additionally, a defendant may be
convicted of conspiracy without knowing all of its details and
even if he plays only a minor role, as long as he enters the
conspiracy understanding that it is unlawful and willfully joins
in the plan at least once. Id. at 367-68; United States v.
Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).
Furthermore, a defendant may be convicted of participation in a
drug conspiracy even if there is no proof that the defendant
personally committed an overt act. United States v. Cardwell,
433 F.3d 378, 391 (4th Cir. 2005). A conspiracy may be proven
entirely upon circumstantial evidence. Burgos, 94 F.3d at 858.
We have reviewed the record and conclude that the
evidence was sufficient to support the conviction. It is not
necessary that Felton be found with heroin or that there be
testimony or evidence showing him involved in actual drug
transactions. Evidence of tape recorded telephone calls and
text messages supports the finding that Felton had an agreement
to distribute heroin and that he knowingly and voluntarily
participated in the conspiracy. There was also sufficient
evidence to show that part of the conspiracy occurred within
1000 feet of a public housing facility or a school and that the
conspiracy involved more than one kilogram of heroin.
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Accordingly, we affirm the judgment of conviction. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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