United States v. Timmons , 343 F. App'x 918 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4277
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NYGERAH BERNARD TIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00361-2)
Submitted: August 20, 2009 Decided: August 31, 2009
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nygerah Bernard Timmons appeals from the 111-month
sentence imposed following his jury conviction on one count of
conspiracy to possess with intent to distribute cocaine and
cocaine base and one count of possession with the intent to
distribute the same, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), (b)(1)(B), 846 (2006) (Counts 1 and 2), one count of
using or carrying a firearm in furtherance of a drug trafficking
crime or aiding and abetting the same, in violation of 18 U.S.C.
§§ 2, 924(c) (2006) (Count 3), and one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006) (Count 5). Timmons’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether the evidence presented was sufficient to
convict Timmons of the charged conspiracy. Timmons was advised
of his right to file a pro se brief, but has not done so.
Finding no error, we affirm.
We review a district court’s denial of a Federal Rule
of Criminal Procedure 29 motion for judgment of acquittal de
novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
2005). “A defendant challenging the sufficiency of the evidence
to support his conviction bears a heavy burden.” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
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quotation marks and citation omitted). A jury’s verdict “must
be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.” Glasser v.
United States, 315 U.S. 60, 80 (1942). 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.” Alerre, 430 F.3d at 693(internal quotation marks and citation omitted). We “may not
weigh the evidence or review the credibility of the witnesses
[because] [t]hose functions are reserved for the jury.” United
States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) (internal
citation omitted).
To prove a conspiracy, the Government is required to
show: “(1) an agreement between two or more persons to engage in
conduct that violates a federal drug law, (2) the defendant's
knowledge of the conspiracy, and (3) the defendant's knowing and
voluntary participation in the conspiracy.” United States v.
Kellam, 568 F.3d 125, 139 (4th Cir. 2009) (internal quotation
marks and citation omitted). “The existence of a tacit or
mutual understanding is sufficient to establish a conspiratorial
agreement, and the proof of an agreement need not be direct--it
may be inferred from circumstantial evidence.” Id. (internal
quotation marks and citation omitted).
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At trial, the Government provided testimony from
Detective Donna West, Officer James Almond, and a confidential
informant (“CI”) regarding the drug buy. The CI testified that
he contacted Timmons to buy crack cocaine and Timmons told him
he would make a phone call and get back to him. When Timmons
called the CI confirming he could get the drugs, they set up a
meeting. When the CI, Timmons, and another man arrived at the
McDonald’s, Timmons called his partner and the meeting location
was changed. At the new location, a Hollywood Video parking
lot, Timmons and the CI made multiple phone calls to Timmons’s
partner. Eventually, a man later identified as Devin Porter,
the alleged co-conspirator, arrived in a white vehicle and got
into the back seat of the CI’s car. When officers approached
the vehicle, they found Timmons and Porter in the back seat,
three baggies of cocaine on the console between the front seats,
a manila envelope on the back floorboard, and a handgun in the
console. Porter later admitted that he was contacted to bring
the cocaine to the meeting place.
We conclude that the evidence is sufficient, viewing
it in the light most favorable to the Government, to establish a
conspiracy between Porter and Timmons. Based on the testimony
presented, a reasonable jury could infer that Timmons’s phone
calls were to Porter, considering that Porter admittedly arrived
at the second designated meeting place with cocaine and cocaine
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base after being contacted to do so. Accordingly, when viewed
in the light most favorable to the Government, we find that the
jury’s verdict was amply supported by sufficient evidence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Timmons’s conviction and sentence. This
court requires that counsel inform Timmons, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Timmons requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Timmons. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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