Filed: Dec. 08, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4585 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH ALLEN SMITH, Defendant - Appellant.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 Affirmed by unpublished per curiam opi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4585 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH ALLEN SMITH, Defendant - Appellant.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 Affirmed by unpublished per curiam opin..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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), 846 (2006), and one count of possession of a
firearm in furtherance of the conspiracy in violation of 18
U.S.C. § 924(c) (2006). 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 conspiracy count, 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 Government, the verdict is
supported by substantial evidence. United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc) (citing Glasser v.
United States,
315 U.S. 60, 80 (1942)). We have 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. The court “consider[s] circumstantial
as well as direct evidence, and allow[s] the government the
benefit of all reasonable inferences from the facts proven to
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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. 2008). “[A]s a general proposition, circumstantial
evidence may be sufficient to support a guilty verdict even
though it does not exclude every reasonable hypothesis
consistent with innocence.” United States v. Osborne,
514 F.3d
377, 387 (4th Cir. 2008) (alteration and quotation marks
omitted). 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 the time and
circumstances under which the weapon was found.
Id.
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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. The evidence
revealed that Smith dealt drugs from his 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 to a jail inmate in which he
acknowledged keeping the handgun for protection against drug
customers who might come to the house to rob him. 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, we affirm the
judgment of the district court. 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
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