Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1025 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.William Herman SHAW, Defendant-Appellant.

No. 88-5302.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 9, 1989.* Decided Aug. 18, 1989.

Before JAMES R. BROWNING, FARRIS and CANBY, Circuit Judges.


MEMORANDUM** 

William Herman Shaw was charged and convicted of "possession with intent to distribute cocaine base." The district court entered judgment finding him guilty of "distribution of cocaine base." He appeals. The Government and Shaw agree that the judgment should be corrected to comply with his conviction. The case was presented to the jury as "possession with intent to distribute." The redacted indictment charged that offense, the jury was instructed on the law of that offense and the jury's guilty verdict was for that offense. We therefore order the judgment corrected.

Shaw appeals his conviction for "possession with intent to distribute cocaine base." He contends that there was insufficient evidence to convict for possession of all 23 grams of the cocaine that was discovered at the residence, where Shaw had been living at the time of his arrest. We review the sufficiency of the evidence in the light most favorable to the government. United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969). Shaw lived with Michael Mais, with whom, the government argued, he jointly possessed the cocaine. Shaw's defense was that he had no knowledge of any cocaine, and especially that found on the patio, but he admits that there is sufficient evidence for the jury to find that he possessed 3.15 grams of cocaine found in his jacket, which was on the premises. He argues that the judgment should be reversed relative to all amounts of cocaine base in excess of 3.15 grams.

The evidence establishes that Shaw was observed at the residence at the time of the execution of the search warrant, standing near the door leading to the area where the largest portion of the cocaine was recovered. Further, physical evidence, including paperwork with Shaw's name on it, was recovered from the residence. There was other evidence from which a reasonable inference of possession could be drawn. We cannot say from the record that there is insufficient evidence to support a conviction. We order the judgment of conviction to be corrected to read "possession of cocaine base with intent to distribute." With that modification the judgment is AFFIRMED.

 *

The panel unanimously finds that this case is suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3