United States v. Bobby Thompson , 454 F. App'x 195 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5132
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOBBY LARUE THOMPSON,
Defendant – Appellant.
No. 10-5228
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
BOBBY LARUE THOMPSON,
Defendant – Appellee.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:05-cr-00294-GCM-2)
Submitted: October 27, 2011 Decided: November 17, 2011
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Steven G.
Slawinski, Assistant Federal Public Defenders, Charlotte, North
Carolina, for Appellant/Cross-Appellee. Anne M. Tompkins,
United States Attorney, Dana O. Washington, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee/Cross-
Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bobby Larue Thompson (“Thompson”), his younger brother
Tido Maurice Thompson (“Tido”), his father Bobby Larue Thompson,
Sr. (“Bull”), and four others were charged in a federal
indictment with drug and firearm offenses. Following a jury
trial, Thompson was convicted of conspiring to possess with
intent to distribute cocaine base (Count One), in violation of
21 U.S.C. § 846 (2006), and possession with intent to distribute
cocaine base (Counts Two, Six, and Seven), in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2011). The
district court sentenced Thompson to 151 months’ imprisonment.
In his appeal, Thompson challenges the sufficiency of the
evidence supporting Counts Two, Six, and Seven and the
application of a two-level enhancement for possession of a
firearm. The Government has filed a cross-appeal in which it
argues that the district court erred in concluding that
Thompson’s prior North Carolina convictions were not felonies
exposing him to enhanced statutory penalties. We affirm.
We begin by reviewing the sufficiency of the evidence.
We review de novo challenges to the sufficiency of the evidence
supporting a jury verdict. United States v. Kelly, 510 F.3d
433, 440 (4th Cir. 2007); see United States v. Green, 599 F.3d
360, 367 (4th Cir.) (stating standard of review for denial of
Fed. R. Crim. P. 29 motion), cert. denied, 131 S. Ct. 271
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(2010). A jury verdict should be affirmed where, “viewing the
evidence in the light most favorable to the prosecution, [it] is
supported by substantial evidence.” United States v. King, 628
F.3d 693, 700 (4th Cir. 2011) (internal quotation marks
omitted). Substantial evidence is such “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. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc).
To convict Thompson of violating 21 U.S.C. § 841, the
Government was required to prove beyond a reasonable doubt that
Thompson: (1) knowingly, (2) possessed the controlled substance,
(3) with the intent to distribute it. Id. at 873. United
States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006).
“Constructive possession is established if it is shown that the
defendant exercised, or had the power to exercise, dominion and
control over the item.” Id. (internal quotation marks omitted).
We have explained that “[a] defendant is guilty of aiding and
abetting if he has knowingly associated himself with and
participated in the criminal venture.” Burgos, 94 F.3d at 873.
Moreover, in order “to be convicted of aiding and abetting,
participation in every stage of an illegal venture is not
required, only participation at some stage accompanied by
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knowledge of the result and intent to bring about that result.”
Id. (internal quotation marks and alterations omitted).
Thompson maintains that the Government presented no
evidence that he possessed crack cocaine, either actually or
constructively, on any of the occasions charged in Counts Two,
Six, and Seven. He asserts that, with respect to Counts Two and
Seven, there was no evidence as to whom the drugs belonged and
thus no evidence he aided and abetted the owner of the drugs.
Thompson notes that the police informant indicated that Tido
sold the drugs at issue in Count Six and contends that there is
no evidence that he was involved in that transaction.
Although mere presence on the premises where drugs are
found in insufficient to prove constructive possession, United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), “a fact
finder may properly consider the totality of the circumstances
surrounding the defendant’s arrest and his alleged possession.”
United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert.
denied, 131 S. Ct. 3440 (2010). Our review of the trial
testimony leads us to conclude that substantial evidence
supports the jury’s verdict on Counts Two, Six, and Seven.
Next, Thompson argues that the district court clearly
erred when it applied a two-level enhancement after concluding
he possessed a firearm in connection with the drug offenses.
See U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1)
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(2007). Thompson asserts that he was never seen with a gun
during the course of the conspiracy and notes that the district
court granted his Rule 29 motion as to the firearms offenses
charged in the indictment.
In assessing a sentencing court’s application of the
Guidelines, this court reviews its legal conclusions de novo and
its factual findings for clear error. United States v. Mehta,
594 F.3d 277, 281 (4th Cir.), cert. denied, 131 S. Ct. 279
(2010). The Government must prove the facts needed to support a
sentencing enhancement by a preponderance of the evidence.
United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).
When a defendant possesses a dangerous weapon in
connection with a drug offense, the Guidelines authorize a two-
level increase in the defendant’s offense level. USSG
§ 2D1.1(b)(1). The commentary explains that the enhancement
“should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1 cmt. n.3. “[T]he Government need show
only that the weapon was possessed during the relevant illegal
drug activity.” United States v. McAllister, 272 F.3d 228, 234
(4th Cir. 2001). “[P]roof of constructive possession of the
dangerous weapon is sufficient, and the Government is entitled
to rely on circumstantial evidence to carry its burden.” United
States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010).
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Accordingly, the Government may rely on the type of firearm
involved and the proximity of the firearm to illegal narcotics.
Id.
We have reviewed the record with these standards in
mind and conclude that the district court did not clearly err in
applying the firearm enhancement. See McAllister, 272 F.3d at
234 (stating standard of review). Although Thompson was not the
only occupant of the Eleanor Drive residence where officers
seized the firearm, his Guidelines range is calculated based on
“all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” USSG
§ 1B1.3(a)(1)(B). Because Thompson does not contest the
sufficiency of the evidence as to the conspiracy charged in
Count One and a firearm was found in close proximity to
narcotics in the residence where police had observed drug
activity, the district court properly applied the enhancement.
In a cross-appeal, the Government argues that the
district court erred in concluding that Thompson’s prior
convictions were not felony convictions and could not support an
enhanced statutory sentence. This argument now is foreclosed by
our recent decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc).
Based on the foregoing, we affirm the judgment of the
district court. We dispense with oral argument because the
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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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