US v. Sterling Green

Filing 920090707

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4824 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STERLING VERNARD GREEN, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:06-cr-01322-TLW) Submitted: May 18, 2009 Decided: July 7, 2009 Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. David B. Betts, Columbia, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a four-day trial, Sterling Vernard Green was convicted by a jury of conspiracy to possess with the intent to distribute and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A), 846 (2000), and possession with the intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1). The district court sentenced Green to concurrent terms of 252 months' imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether the district court erred in denying Green's Fed. R. Crim. P. 29 motion for judgment of acquittal. filed a pro se supplemental brief. Green has also Finding no error, we affirm. Rule 29 of the Federal Rules of Criminal Procedure provides acquittal that where a district the court is must enter a judgment to sustain of a evidence insufficient conviction. Fed. R. Crim. P. 29(a). We review a district court's denial of a Rule 29 motion for judgment of acquittal de novo. E.g., United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006). "In conducting such review, we must uphold a jury verdict if there is substantial evidence, viewed in the light most favorable to the Government, to support it." Id. Substantial evidence is "evidence that a reasonable finder of 2 fact could accept as adequate 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). Further, both direct and circumstantial evidence are and the government is permitted "all reasonable considered, inferences that could be drawn in its favor." Harvey, 532 F.3d 326, 333 (4th Cir. 2008). carry an imposing burden to United States v. The defendant "must challenge the successfully sufficiency of the evidence." United States v. Martin, 523 F.3d 281, 288 (4th Cir. 2008) (citation omitted), cert. denied, 129 S. Ct. 238 (2008). To prove conspiracy to possess with intent to distribute and to distribute cocaine base, the government must establish persons beyond to a reasonable possess with doubt that: to (1) two or more to agreed intent distribute and distribute the cocaine base; "`(2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy.'" United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008) (quoting Burgos, 94 F.3d at 857), cert. denied, 129 S. Ct. 137 (2008). The "gravamen of the Id. at 226 A defendant all the the crime is an agreement to effectuate a criminal act." (internal quotation marks and alteration omitted). may be convicted of conspiracy as long 3 as without the knowing conspiracy's details, defendant enters conspiracy understanding its unlawful nature and willfully joins in the plan on at least one occasion. To prove possession with Burgos, 94 F.3d at 858. intent to distribute the cocaine base, the Government was required to establish beyond a reasonable doubt that Green: (1) knowingly; (2) possessed cocaine base; (3) with the intent to distribute it. Possession may be actual or constructive. Rusher, 966 F.2d 868, 878 of (4th a Cir. Id. at 873. See United States v. "A person of has its 1992). if he constructive possession narcotic knows presence and has the power to exercise dominion and control over it." 1985). United States v. Schocket, 753 F.2d 336, 340 (4th Cir. Possession need not be exclusive, but may be joint and Id. "may be established by direct or circumstantial evidence." Intent to distribute of may be inferred from or a a defendant's quantity of possession drug-packaging paraphernalia drugs larger than needed for personal use. Fisher, 912 F.2d 728, 730 (4th Cir. 1990). possession of a quantity of cocaine base United States v. We have held that slightly over five grams, when combined with testimonial evidence, is sufficient to support an inference of intent to distribute. Lamarr, 75 F.3d 964, 973 (4th Cir. 1996). With these standards in mind, our thorough review of the trial transcript convinces us that Green was involved in "`a loosely-knit association of members linked . . . by their mutual 4 United States v. interest in sustaining the overall enterprise of catering to the ultimate demands of a particular drug consumption market'" Florence, South Carolina. Burgos, 94 F.3d at 858 (quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)). Although fact "many a conspiracies conspiracy are is executed with precision, haphazard, the or that loosely-knit, ill-conceived does not render it any less a conspiracy--or any less unlawful." Id. We conclude that there was sufficient evidence to support the jury`s verdict on the conspiracy count. As to the possession count, our review of the record convinces us that Green had dominion and control over 40 or more grams of cocaine base packaged in a manner to suggest sale. The jury could infer Green's knowing possession of the cocaine base. The cocaine was found inside a jacket pocket that also contained Green's identification a bedroom identified as Green's and from which Green was observed exiting. We therefore conclude that there was sufficient evidence to support the jury's verdict on the possession count. Further, after review of Green's pro se supplemental brief, we conclude it raises no meritorious issues for appeal. 5 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. * We therefore affirm the district court's judgment. This court requires that counsel inform Green, in writing, of the right to petition review. the Supreme Court of the United States for further If Green requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because the are and adequately argument presented not in aid the the was served on Green. facts and legal before contentions the court materials would decisional process. AFFIRMED This case was also held in abeyance for United States v. Antonio, No. 07-4791, 311 Fed. App'x 679. This court's decision in Antonio does not change our analysis of Green's appeal. * 6

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