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 2007-02

United States v. Eskridge ( 2007 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4475
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEBRA ERIC ESKRIDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:05-cr-00229-ALL)
Submitted: February 22, 2007              Decided:   February 28, 2007
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina, for Appellant. Richard
Lee Edwards, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kebra Eric Eskridge was convicted by a jury of one count
of possession of a firearm by a felon in violation of
    18 U.S.C. § 922
    (g)(1) (2000).       The district court sentenced Eskridge to 115
months in prison and ordered Eskridge be placed on supervised
release for three years upon his release from prison.          Counsel for
Eskridge has filed a brief pursuant to Anders v. California,
    386 U.S. 738
     (1967), alleging the district court erred in denying
Eskridge’s motion for judgment of acquittal because the evidence
was insufficient to support his conviction. Eskridge has not filed
a   pro   se    supplemental   brief   despite    being   notified   of   his
opportunity to do so, and the Government has declined to file a
responding brief.       We affirm.
After a review of the record, we conclude there was
sufficient evidence for the jury to find Eskridge guilty of a
violation of
    18 U.S.C. § 922
    (g)(1).              To prove possession of a
firearm in violation of § 922(g)(1), the Government was required to
establish that “(1) the defendant previously had been convicted of
a crime punishable by a term of imprisonment exceeding one year;
(2) the defendant knowingly possessed, transported, shipped, or
received, the firearm; and (3) the possession was in or affecting
commerce, because the firearm had traveled in interstate or foreign
commerce at some point during its existence.”             United States v.
Langley,
    62 F.3d 602
    , 606 (4th Cir. 1995).         The Government need not
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produce evidence of actual possession, as it may proceed on a
constructive possession theory demonstrating that the defendant
“show[ed]    ownership,     dominion,    or   control    over     the    [firearm]
itself.”    United States v. Blue,
    957 F.2d 106
    , 107 (4th Cir. 1992).
We   will   sustain   the    jury's     verdict   if    it   is    supported    by
substantial evidence, viewed in the light most favorable to the
government, to support it. See United States v. Cardwell,
    433 F.3d 378
    , 390 (4th Cir. 2005).
The   parties   stipulated     that   Eskridge        was   previously
convicted of an offense that was punishable by more than one year
imprisonment and that the gun recovered by police had moved in
interstate commerce.        Moreover, the Government produced police
testimony establishing the police saw Eskridge walking, witnessed
him make a tossing motion, heard a loud thump, and immediately
recovered a gun in the vicinity Eskridge made the tossing motion.
We conclude this evidence was sufficient to establish Eskridge
constructively possessed the firearm recovered by police.                      See
United States v. Johnson,
    55 F.3d 976
    , 979 (4th Cir. 1995) (finding
evidence that defendant dropped a dark object out his car window
and that officers later discovered a revolver in the vicinity where
the object was dropped was sufficient to satisfy the possession
element of § 922(g)).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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review.   We therefore affirm Eskridge’s conviction and sentence.
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
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