United States v. Andre Jefferson , 364 F. App'x 310 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3400
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Andre Jefferson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 8, 2010
Filed: February 5, 2010
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
A jury found Andre Jefferson guilty of possessing with intent to distribute more
than 5 grams but less than 50 grams of a mixture and substance containing cocaine
base, in violation of 21 U.S.C. § 841(a)(1); knowingly possessing a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i);
possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1); and possessing with intent to distribute more than 5 grams but less than
50 grams of a mixture and substance containing cocaine base within 1,000 feet of a
public elementary school, in violation of 21 U.S.C. §§ 841(a)(1) and 860. The district
court sentenced him to 210 months in prison and 10 years of supervised release. His
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967), challenging the sufficiency of the evidence to support the
convictions.
We review the sufficiency of the evidence de novo, viewing the evidence in the
light most favorable to the jury’s verdict. See United States v. Myers, 575 F.3d 801,
808 (8th Cir. 2009). As to the drug offenses, we conclude that the evidence was
sufficient to find Jefferson guilty of violating section 860. See 21 U.S.C. § 860 (any
person who violates § 841(a)(1) by possessing with intent to distribute controlled
substance within 1,000 feet of real property comprising public elementary school shall
be punished); United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004)
(listing elements for possession of controlled substance with intent to distribute under
§ 841(a)); United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002) (possession of
contraband need not be exclusive, but may be joint; possession can be either actual or
constructive); United States v. Brett, 872 F.2d 1365, 1370 (8th Cir. 1989) (intent to
distribute may be inferred solely from possession of large quantity of drugs; presence
of firearm is also evidence of intent to distribute). However, because a violation of
section 841(a) is a lesser included offense of section 860, Jefferson’s conviction for
both offenses violates the Double Jeopardy Clause, and we must remand so the district
court can vacate the judgment of conviction and sentence for the lesser offense. See
United States v. Carpenter, 422 F.3d 738, 747 (8th Cir. 2005).
As to the firearm offenses, we conclude that there was sufficient evidence to
support both convictions. See United States v. Kent, 531 F.3d 642, 652 (8th Cir.
2008) (to obtain conviction for possession of firearm in furtherance of drug trafficking
crime, government must prove nexus between possession of firearm and underlying
drug crime; jury may infer that firearm was used in furtherance of drug crime when
it is kept in close proximity to drugs, it is quickly accessible, and there is expert
testimony regarding use of firearms in connection with drug trafficking); United
States v. Lindsey, 507 F.3d 1146, 1148 (8th Cir. 2007) (per curiam) (evidence was
sufficient to support conviction for possession of firearm in furtherance of drug
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trafficking crime where defendant was sitting in driver’s seat of vehicle holding
several plastic bags containing crack, detective found firearm beneath seat where
defendant was sitting, and expert testified at trial that drug dealers use firearms to
protect themselves, their drugs, and their money), cert. denied, 128 S. Ct. 1328 (2008);
United States v. Davis, 449 F.3d 842, 846 (8th Cir. 2006) (to obtain § 922(g)(1)
conviction, government must prove beyond reasonable doubt that defendant had
previously been convicted of crime punishable by prison term exceeding one year, and
knowingly possessed firearm which had been in or affected interstate commerce).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no other nonfrivolous issues for appeal. Accordingly, we grant
defense counsel’s motion to withdraw on condition that counsel inform appellant
about the procedures for filing petitions for rehearing and for certiorari; we deny
Jefferson’s motion for new counsel; and we affirm Jefferson’s convictions for
possession of a firearm in furtherance of a drug trafficking offense, possession of a
firearm after having been convicted of a felony, and possession of cocaine base within
1,000 feet of a school with intent to distribute. We reverse and remand for the district
court to vacate Jefferson’s conviction and sentence for possessing cocaine base with
intent to distribute in violation of section 841(a)(1).
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