US v. Joseph Smith, No. 11-4585 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4585 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSEPH ALLEN SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:10-cr-00438-LMB-1) Submitted: November 30, 2011 Decided: December 8, 2011 Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Peter D. Greenspun, Amy L. Bradley, GREENSPUN SHAPIRO, P.C., Fairfax, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Andrew J. Ewalt, Special Assistant United States Attorney, Gene Rossi, Assistant United States Attorney, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph Allen Smith was indicted on one count of conspiracy to distribute oxycodone in violation of 21 U.S.C. §§ 841(a)(1), firearm in 846 (2006), furtherance and one count of possession the conspiracy in violation of U.S.C. § 924(c) (2006). of of a 18 Smith pled guilty to the conspiracy count, and was tried in a bench trial and convicted of the § 924(c) count. Smith was sentenced to a term of one month on the count, conspiracy to be followed by sixty months incarceration on the § 924(c) count. On appeal, Smith contends that the evidence was insufficient to convict him of possession of a firearm, a Taurus handgun, in furtherance of the drug conspiracy. This court is obliged to sustain a guilty verdict if, viewing the evidence in the light most favorable to the supported by substantial evidence. F.3d 849, United 862 (4th Cir. 1996) States, 315 U.S. 60, Government, verdict is United States v. Burgos, 94 (en 80 the banc) (1942)). (citing We Glasser have v. defined substantial evidence as 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. Burgos, 94 F.3d at 862. as well as direct The court consider[s] circumstantial evidence, and allow[s] the government the benefit of all reasonable inferences from the facts proven to 2 those sought to be established, United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and assumes that the fact finder resolved all contradictions in the testimony in favor of the Government. United States v. Brooks, 524 F.3d 549, 563 (4th Cir. [A]s 2008). evidence though may it be a general sufficient does not to 377, 387 omitted). (4th Cir. support exclude consistent with innocence. proposition, every a circumstantial guilty verdict reasonable even hypothesis United States v. Osborne, 514 F.3d 2008) (alteration and quotation marks We can reverse a conviction on insufficiency grounds only when the prosecution s failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation marks and citation omitted). In order to prove a violation of § 924(c), the Government was required to present evidence indicating that the possession of the firearm furthered, advanced, or helped forward a drug trafficking offense. See United States v. Perry, 560 F.3d 246, 254 (4th Cir. 2009). In making this determination, the factors to be considered include the type of drug activity being conducted, the accessibility of the firearm, the type of weapon, whether the weapon is stolen, whether the possession of the weapon is legal or illegal, whether the weapon is loaded, proximity to drugs and drug profits, and circumstances under which the weapon was found. 3 the Id. time and Our review of the record discloses that the evidence was sufficient to support the finding that Smith possessed the firearm in furtherance of the drug conspiracy. revealed that Smith dealt drugs from his The evidence home and that the handgun in question was found on Smith s nightstand, and thus was easily accessible. The gun was found within inches of a plastic baggie containing loose Xanax pills, which the evidence at trial showed were also sold as part of the conspiracy and in that same packaging. Further, Smith made statements to a law enforcement officer and acknowledged keeping the to a jail handgun for inmate in protection customers who might come to the house to rob him. which against he drug Smith did not legally possess the handgun, and the evidence showed that he applied for a concealed weapon permit at a time in the conspiracy when drugs were being sold from his home. We therefore find the evidence sufficient to support Smith s § 924(c) conviction. Accordingly, judgment of the district court. we affirm the 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 4
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