US v. Sterling Green
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
May 18, 2009
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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