US v. Bobby Thompson, No. 10-5132 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5132 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BOBBY LARUE THOMPSON, Defendant Appellant. No. 10-5228 UNITED STATES OF AMERICA, Plaintiff Appellant, v. BOBBY LARUE THOMPSON, Defendant Appellee. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:05-cr-00294-GCM-2) Submitted: October 27, 2011 Decided: November 17, 2011 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ann L. Hester, Steven G. Slawinski, Assistant Federal Public Defenders, Charlotte, North Carolina, for Appellant/Cross-Appellee. Anne M. Tompkins, United States Attorney, Dana O. Washington, Assistant United States Attorney, Charlotte, North Carolina, for Appellee/CrossAppellant. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Bobby Larue Thompson ( Thompson ), his younger brother Tido Maurice Thompson ( Tido ), his father Bobby Larue Thompson, Sr. ( Bull ), and four others were charged indictment with drug and firearm offenses. trial, Thompson was convicted of in a federal Following a jury conspiring to possess with intent to distribute cocaine base (Count One), in violation of 21 U.S.C. § 846 (2006), and possession with intent to distribute cocaine base (Counts Two, Six, and Seven), in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2011). The district court sentenced Thompson to 151 months imprisonment. In his evidence appeal, supporting application firearm. argues Thompson of a challenges Counts two-level Two, the sufficiency Six, and enhancement Seven for of the and the possession of a The Government has filed a cross-appeal in which it that the district court erred in concluding that Thompson s prior North Carolina convictions were not felonies exposing him to enhanced statutory penalties. We affirm. We begin by reviewing the sufficiency of the evidence. We review de novo challenges to the sufficiency of the evidence supporting a jury verdict. United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007); see United States v. Green, 599 F.3d 360, 367 (4th Cir.) (stating standard of review for denial of Fed. R. Crim. P. 29 motion), cert. 3 denied, 131 S. Ct. 271 (2010). A jury verdict should be affirmed where, viewing the evidence in the light most favorable to the prosecution, [it] is supported by substantial evidence. F.3d 693, 700 omitted). (4th Cir. 2011) Substantial reasonable United States v. King, 628 finder of (internal evidence fact is could such accept quotation evidence as marks that adequate a 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). To convict Thompson of violating 21 U.S.C. § 841, the Government was required to prove beyond a reasonable doubt that Thompson: (1) knowingly, (2) possessed the controlled substance, (3) with the intent to distribute it. States v. Moye, 454 F.3d Id. at 873. 390, 395 United (4th Cir. 2006). Constructive possession is established if it is shown that the defendant exercised, or had the power to exercise, dominion and Id. (internal quotation marks omitted). control over the item. We have explained that [a] defendant is guilty of aiding and abetting if he has knowingly associated participated in the criminal venture. Moreover, in participation required, order in only to every be convicted with and Burgos, 94 F.3d at 873. of stage of an participation at some 4 himself aiding illegal stage and abetting, venture is accompanied not by knowledge of the result and intent to bring about that result. Id. (internal quotation marks and alterations omitted). Thompson maintains that the Government presented no evidence that he possessed crack cocaine, either actually or constructively, on any of the occasions charged in Counts Two, Six, and Seven. He asserts that, with respect to Counts Two and Seven, there was no evidence as to whom the drugs belonged and thus no evidence he aided and abetted the owner of the drugs. Thompson notes that the police informant indicated that Tido sold the drugs at issue in Count Six and contends that there is no evidence that he was involved in that transaction. Although mere presence on the premises where drugs are found in insufficient to prove constructive possession, United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), a fact finder may properly consider the totality of the circumstances surrounding the defendant s arrest and his alleged possession. United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert. denied, 131 testimony S. leads Ct. us 3440 (2010). Our to conclude that review of substantial the trial evidence supports the jury s verdict on Counts Two, Six, and Seven. Next, Thompson argues that the district court clearly erred when it applied a two-level enhancement after concluding he possessed a firearm in connection with the drug offenses. See U.S. Sentencing Guidelines 5 Manual ( USSG ) § 2D1.1(b)(1) (2007). Thompson asserts that he was never seen with a gun during the course of the conspiracy and notes that the district court granted his Rule 29 motion as to the firearms offenses charged in the indictment. In assessing a sentencing court s application of the Guidelines, this court reviews its legal conclusions de novo and its factual findings for clear error. 594 F.3d 277, (2010). 281 (4th Cir.), United States v. Mehta, cert. denied, 131 S. Ct. 279 The Government must prove the facts needed to support a sentencing enhancement by a preponderance of the evidence. United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006). When a defendant possesses a dangerous weapon in connection with a drug offense, the Guidelines authorize a twolevel increase the The § 2D1.1(b)(1). in commentary should be clearly improbable offense. applied if defendant s the that explains weapon the offense was weapon USSG § 2D1.1 cmt. n.3. that level. the present, was enhancement unless connected USSG it with is the [T]he Government need show only that the weapon was possessed during the relevant illegal drug activity. (4th Cir. 2001). United States v. McAllister, 272 F.3d 228, 234 [P]roof of constructive possession of the dangerous weapon is sufficient, and the Government is entitled to rely on circumstantial evidence to carry its burden. States v. Manigan, 592 F.3d 6 621, 629 United (4th Cir. 2010). Accordingly, the Government may rely on the type of firearm involved and the proximity of the firearm to illegal narcotics. Id. We have reviewed the record with these standards in mind and conclude that the district court did not clearly err in applying the firearm enhancement. See McAllister, 272 F.3d at 234 (stating standard of review). Although Thompson was not the only occupant of the Eleanor Drive residence where officers seized the firearm, his Guidelines range is calculated based on all reasonably foreseeable acts and omissions of others furtherance of the jointly undertaken criminal activity. § 1B1.3(a)(1)(B). sufficiency Count of the and One narcotics Because a in the Thompson evidence firearm as was residence to the found where does not in had the charged in proximity close police USSG contest conspiracy in to observed drug activity, the district court properly applied the enhancement. In district a court cross-appeal, erred in the Government concluding that argues that Thompson s the prior convictions were not felony convictions and could not support an enhanced statutory sentence. This argument now is foreclosed by our recent decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Based on the foregoing, we affirm the judgment of the district court. We dispense with 7 oral argument because the facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 8

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