United States v. Davis , 343 F. App'x 878 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5232
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE REGINAL DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cr-00262-JRS-1)
Submitted: August 27, 2009 Decided: September 15, 2009
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Angela Mastandrea-Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Reginal Davis appeals his convictions and
ninety-three month sentence for possession with intent to
distribute cocaine base and possession of a firearm in
furtherance of a drug trafficking crime. Davis’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), concluding that there are no meritorious issues for
appeal but questioning whether the evidence was sufficient to
support the jury’s verdicts and whether the district court
abused its discretion by rejecting Davis’s proposed jury
instruction. Although advised of his right to file a
supplemental pro se brief, Davis has not done so. For the
reasons that follow, we affirm.
This court “must uphold a jury verdict if there is
substantial evidence, viewed in the light most favorable to the
Government, to support it.” United States v. Perkins, 470 F.3d
150, 160 (4th Cir. 2006). Substantial evidence 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. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). Further, both direct and
circumstantial evidence are considered, and the government is
permitted “all reasonable inferences that could be drawn in its
favor.” United States v. Harvey, 532 F.3d 326, 333 (4th Cir.
2
2008). The defendant “must carry an imposing burden to
successfully challenge the sufficiency of the evidence.” United
States v. Martin, 523 F.3d 281, 288 (4th Cir.), cert. denied,
129 S. Ct. 238 (2008).
To convict a defendant of possession with the intent
to distribute, the government must prove possession of a
narcotic controlled substance, knowledge of the possession, and
the intent to distribute. United States v. Collins, 412 F.3d
515, 519 (4th Cir. 2005). Intent to distribute may be inferred
if the amount of drugs found exceeds an amount normally
associated with personal consumption. United States v. Wright,
991 F.2d 1182, 1187 (4th Cir. 1993). Another relevant factor is
the packaging of the drugs. See Collins, 412 F.3d at 519.
Davis’s counsel relies upon United States v. Fountain,
993 F.2d 1136 (4th Cir. 1993), where this court reversed a
conviction for possession of marijuana with the intent to
distribute, finding the evidence of intent to distribute
insufficient. There, the police found on Fountain’s person
three small bags of marijuana, totaling 2.3 grams and valued
between $15 and $60, and two guns. Id. at 1138. On these
facts, this court held that the government did not adequately
prove that Fountain possessed the drug for distribution
purposes. Id. at 1139. In contrast, Davis was caught with
thirty-three individual packages of the drug, with an estimated
3
value of $330. Based upon the quantity, value, and packaging of
the cocaine base in Davis’s possession, the jury was entitled to
find that he possessed the drug with the intent to distribute.
To sustain a conviction for possessing a firearm in
furtherance of a drug trafficking crime, the prosecution had to
prove beyond a reasonable doubt that Davis used, carried, or
possessed a firearm in furtherance of a drug trafficking crime.
See 18 U.S.C. § 924(c)(1)(A) (2006). The government must
“present evidence indicating that the possession of a firearm
furthered, advanced, or helped forward a drug trafficking
crime.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002) (internal quotation marks omitted). Ways that a firearm
can further or advance drug trafficking include “provid[ing] a
defense against someone trying to steal drugs or drug profits,
or . . . lessen[ing] the chance that a robbery would even be
attempted.” Id. Factors that might lead a fact-finder to
conclude that a connection existed between a defendant’s
possession of a firearm and his drug trafficking activity
include the accessibility of the firearm, whether the gun is
loaded, and the gun’s proximity to drugs. Id.Davis’s gun was in his waistband and fully loaded,
with a bullet in the chamber. It was thus easily accessible,
close to the drugs, and prepared for immediate use. This
evidence was clearly sufficient to permit the jury to find that
4
Davis carried the gun “in furtherance” of his drug trafficking
crime.
Last, we address the district court’s rejection of
Davis’s proposed jury instruction. Decisions on whether to give
an instruction and the content of such instruction are reviewed
for an abuse of discretion. See United States v. Ellis, 121
F.3d 908, 923 (4th Cir. 1997). Rejecting a proposed jury
instruction is reversible error only if the requested
instruction “(1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Frazier-El, 204 F.3d
553, 562 (4th Cir. 2000) (internal citation and quotation marks
omitted).
To prove that Davis possessed the firearm in
furtherance of a drug trafficking crime, the government had to
“present evidence indicating that the possession of a firearm
furthered, advanced, or helped forward a drug trafficking
crime.” See Lomax, 293 F.3d at 705. “Although this requirement
is not satisfied if the presence is ‘the result of accident or
coincidence . . . it is enough for § 924(c)(1) purposes if the
firearm was present for protection or to embolden the actor.’”
United States v. Reid, 523 F.3d 310, 318 (4th Cir.), cert.
5
denied, 129 S. Ct. 663 (2008) (quoting United States v. Lipford,
203 F.3d 259, 266 (4th Cir. 2000)). Thus, instructing the jury
that “[t]he mere possession of the firearm at the scene of the
crime is not sufficient,” as Davis sought to do, would not
convey a complete portrait of the legal landscape on this issue,
because mere possession of a firearm while committing a drug
trafficking crime can be sufficient, if the possession is for
protection or to embolden the actor. Therefore, the district
court did not abuse its discretion by rejecting the proposed
instruction.
In accordance with Anders, we have examined the entire
record in this case and found no meritorious issues for review.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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
6