FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 3, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-3337
                                              (D.C. No. 2:09-CR-20035-KHV-1)
    KEITH R. WRIGHT,                                      (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Keith R. Wright was convicted by a jury of one count of possession with

intent to distribute five grams or more of cocaine base (“crack cocaine”) in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), 1 and one count of possession

*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
       Effective August 3, 2010, the quantity in this section was amended from
five grams to twenty-eight grams. See Fair Sentencing Act of 2010,
Pub. L. No. 111-220, § 2(a)(2), 124 Stat. 2372, 2372. Mr. Wright’s offense
                                                                     (continued...)
of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). He was sentenced to a term of imprisonment of 180 months. He

appeals his convictions, arguing that the evidence was insufficient. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

      In February 2009, Kansas City, Kansas, Police Department (KPD) officers

observed Mr. Wright make an illegal U-turn in an area where drug-house

surveillance operations were underway. A chase ensued. Mr. Wright’s car hit a

curb, flattened a tire, and became disabled. The patrol car came to a stop at an

angle just behind the driver’s door, and the officer driving the patrol car, Jason

Pittman, observed the driver’s side window of Mr. Wright’s car go down and a

clear plastic baggie come out of the window. Mr. Wright’s brother, Debroski

Wright, emerged from the passenger side door and ran. While Officer Pittman

apprehended Mr. Wright, his partner, Scotty Hammons, gave chase and caught

Debroski. During the pursuit, Officer Hammons saw Debroski throw a handgun

on the ground, which was later recovered. Another officer arriving on the scene

apprehended a third person, who was in the back seat. Neither Officer Pittman

nor Officer Hammons had observed the third person until the car became

disabled.


1
 (...continued)
occurred in February 2009 and is controlled by the prior version of the statute.

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      Officer Pittman recovered the baggie he saw thrown from the driver’s

window, which contained a large number of smaller bags each containing a white

rock-like substance Officer Pittman suspected was crack cocaine. A search of

Mr. Wright uncovered no other drugs, no drug paraphernalia, no cash, and no

weapons. Deputy Sheriff Keith Denny searched Debroski at the county jail and

found a plastic baggie in his sock containing eight individual baggies of a white

rock-like substance.

      Analysis of the baggie that came out of the driver’s window of

Mr. Wright’s car showed it contained 17.8 grams of a substance containing crack

cocaine individually packaged in many smaller baggies. Analysis of the eight

baggies in Debroski’s possession showed they contained a total of 1.6 grams of a

substance containing crack cocaine.

      After he was tried and convicted, Mr. Wright filed a motion for judgment

of acquittal and a new trial. The district court overruled the motion. Mr. Wright

appeals.

                                         II

      On appeal, Mr. Wright argues there was insufficient evidence that he

(1) possessed crack cocaine, (2) possessed crack cocaine with the intent to

distribute, (3) possessed five grams or more of crack cocaine, and (4) possessed a

firearm. We review challenges to the sufficiency of the evidence de novo,

viewing the evidence and drawing all reasonable inferences in favor of the jury’s

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verdict. United States v. Wright, 

, 1297 (10th Cir. 2007). A

conviction may be reversed only if “no reasonable juror could have reached the

disputed verdict.” United States v. Carter, 

, 1439 (10th Cir. 1997).

      Mr. Wright first argues that the fact the arresting officers were not aware of

the presence of the back-seat passenger until the car became disabled should have

created reasonable doubt in the minds of the jurors as to whether Mr. Wright

threw the baggie out the window. We disagree. Officer Pittman testified he saw

the baggie come out of the driver’s side window, not the rear passenger’s

window. And Officer Hammons testified that “the driver threw something out the

driver’s window.” App. Vol. 2 at 118. Thus, there was sufficient evidence for

the jury to find beyond a reasonable doubt that it was Mr. Wright who threw the

baggie out the driver’s side window.

      Mr. Wright next contends that the government failed to prove possession

with the intent to distribute because a heavy crack user could smoke more than

17.8 grams in twenty-four hours, and the individual packaging of smaller

quantities was the form in which a user would obtain crack from a dealer.

Further, he insists that if he were dealing, he would have had cash in his

possession. We again disagree. Intent to distribute may be inferred from

circumstantial evidence, including a large drug quantity. United States v. Gay,

, 372 (10th Cir. 1985). The government presented Patrick Greeno, a

KPD detective with lengthy experience in narcotics investigations, who testified

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that the quantity of crack in this case was consistent with distribution. According

to Detective Greeno, a crack user would typically purchase and have in his

possession only one or two “rocks” (i.e., 0.2 grams, which is twenty dollars’

worth), not 17.8 grams divided into many separately packaged rocks. He also

testified that crack for sale is typically packaged in such smaller bags. He further

stated that users normally have some sort of device to smoke crack, but no such

devices were recovered during Mr. Wright’s arrest. Detective Greeno also

testified that crack dealers often work in concert and, like Mr. Wright, have little

or no cash on them in order to avoid forfeiting it if caught. Thus, we conclude

there was sufficient circumstantial evidence that Mr. Wright possessed crack

cocaine with the intent to distribute it.

      With respect to whether he possessed five grams or more of crack cocaine,

Mr. Wright argues that the testing method was flawed. The chemist testified that

he first combined the contents of all the smaller baggies contained in the

17.8-gram baggie in order to get a net weight, then tested a small sample (four

milligrams) from the combined lump sum. Using the same technique, the chemist

tested a three-milligram sample from the eight baggies found in Debroski’s

possession. Mr. Wright contends the chemist’s failure to test each of the smaller

bags rendered the evidence as to drug quantity insufficient for the jury to convict

him of possession of five or more grams of crack cocaine.




                                            -5-
      This argument fails. Sampling in the manner used by the chemist is an

acceptable method of testing provided there is sufficient evidence that the entire

quantity is the same substance. See United States v. Booker, 

, 512

(8th Cir.) (evidence of quantity sufficient where criminalist tested 29 of 43 rocks

seized from defendant and testified he believed remaining rocks were also crack

cocaine, and where an arresting officer with narcotics experience field-tested the

seized substance and determined it was comprised of 43 rocks of crack cocaine),

cert. denied, 

(2009); United States v. Tran, 

, 106

(2d Cir. 2008) (evidence of chemist’s random testing of 29 pills from each of

three bags containing thousands of pills of similar appearance sufficient to prove

drug quantity); Gibson v. Bowersox, 

, 374 (8th Cir. 1996) (holding

that random testing of pieces of similar texture and color is sufficient to prove

drug-quantity element of offense); United States v. Maceo, 

, 6-7

(1st Cir. 1989) (evidence of quantity sufficient where chemist tested 16 of 227

identical vials and used positive results to determine total amount of crack

cocaine in all vials). There is no suggestion in the record that the individually

packaged substances were dissimilar in any manner. To the contrary, there was

sufficient evidence that the smaller quantities were similarly packaged and similar

in appearance. Although the chemist was not asked if he thought all the

individually packaged substances were crack cocaine, cf. 

,

Officer Pittman testified as to his extensive experience in narcotics matters and

                                         -6-
stated his opinion that the baggie Mr. Wright threw out the window contained

smaller baggies of crack cocaine. He also stated the substance field-tested

positively for crack cocaine. Similarly, Deputy Kenny testified that the eight

smaller baggies recovered from Debroski each contained a white rock-like

substance, the term typically used by law enforcement officers to refer to

suspected crack cocaine. Given Detective Greeno’s testimony regarding drug

dealers often working in concert, Deputy Kenny’s testimony further supported a

reasonable inference that all the smaller bags in the bag Mr. Wright threw from

his car contained crack cocaine. Furthermore, the smaller baggies were similar

and combined together in a larger baggie, suggesting identity of contents. We

therefore conclude the evidence was sufficient for the jury to find that Mr. Wright

was in possession of five grams or more of a substance containing crack cocaine.

      Finally, Mr. Wright challenges the sufficiency of the evidence to support

his conviction on possession of a firearm in connection with a drug trafficking

offense. The government’s theory was that Mr. Wright and Debroski were

working in concert to sell crack cocaine, and that Mr. Wright constructively

possessed the handgun his brother dropped during the foot chase. Constructive

possession of a firearm may be found in a “joint occupancy” case if “the

government demonstrates some connection or nexus between the defendant and

the firearm.” United States v. Avery, 

, 1177 (10th Cir. 2002)

(quotation omitted). Constructive possession may be established by

                                         -7-
circumstantial evidence. 

be “some evidence supporting at least a

plausible inference that the defendant had knowledge of and access to the

weapon.” United States v. Taylor, 

, 1145 (10th Cir. 1997)

(quotation omitted). Here, the brothers jointly occupied Mr. Wright’s car, there

was adequate circumstantial evidence that they were dealing crack together, and

there was testimony that crack dealers often carry firearms for protection.

Moreover, Mr. Wright testified at his trial that he knew Debroski owned a gun,

but he denied knowing that his brother had the gun in his possession at the time of

their arrest. The jury was free to find Mr. Wright not credible and, apparently,

did so. Thus, the evidence was sufficient to show a connection between

Mr. Wright and the firearm, and to support a plausible inference that Mr. Wright

had knowledge of and access to the firearm.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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