US v. Kelzin Squirewell

Filing 920091013

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5127 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KELZIN SQUIREWELL, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Margaret B. Seymour, District Judge. (0:07-cr-00664-MBS-1) Submitted: September 30, 2009 Decided: October 13, 2009 Before WILKINSON and Senior Circuit Judge. GREGORY, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Robert C. Jendron, Jr., Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kelzin resulting Squirewell appeals for his jury convictions a firearm and a 180-month sentence possession by convicted felon, in violation of 18 U.S.C. 922(g)(1) (2006) ("Count Two"); possession with intent to distribute five grams or more of crack cocaine, a quantity of cocaine, and marijuana, in violation of 21 U.S.C. 841 (2006) ("Count Three"); and possession of a firearm during and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A) (2006) ("Count Four"). Squirewell Finding no reversible error, we affirm. first argues that the evidence was insufficient to sustain his convictions on the firearms counts Counts Two and Four. "In reviewing the sufficiency of the evidence following a conviction, this court views `the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the Government.'" 293 F.3d 701, 705 (4th Cir. 2002) United States v. Lomax, (quoting United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996)). reverse a conviction failure 394 on is insufficiency clear." Cir. 2006) grounds This court "can only when v. the prosecution's 454 F.3d 390, United States Moye, and (4th (internal quotations citation omitted). Rather, a verdict will be sustained if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" 2 Lomax, 293 F.3d at 705 (quoting United States v. Meyers, 280 F.3d 407, 415 (4th Cir. 2002)). In support of his first argument, Squirewell maintains that the evidence was insufficient to establish his constructive possession of the firearm found under the rear passenger seat of his Ford Expedition. "Constructive possession exists when the defendant exercises, or has the power to exercise, dominion and control over the item," United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980), and has knowledge of the item's presence. 1992), United States v. Bell, 954 F.2d 232, 235 (4th Cir. on other grounds, Burgos, 94 F.3d at 862. overruled "Knowledge may be inferred from possession, that is, dominion and control over the area where the contraband is found." United States v. Lochan, 674 F.2d 960, 966 (1st Cir. 1982). The evidence, viewed in the light most favorable to the Government, was sufficient to establish Squirewell's constructive possession of the firearm. Squirewell, who was a co-owner of the vehicle, had access to the vehicle and retrieved the electronic door opener when officers asked to search the vehicle. Rather than open the driver's door, Squirewell went to that the passenger was a door gun on in the the driver's side and From immediately announced there vehicle. Squirewell's vantage point, the firearm was not visible as the gun could only be seen if an observer bent over and looked under 3 the seat. These knowledge circumstances of the firearm. adequately Moreover, established Squirewell Squirewell's admitted that he had purchased drugs found in a cigar box next to the firearm sometime during the early morning hours of February 8, 2008. The jury could infer from this fact that Squirewell had placed both the drugs and the gun under the seat or, at the least, that Squirewell was aware of the firearm when he hid the drugs in the same location. Accordingly, the evidence was sufficient to sustain Squirewell's conviction on Count Two. Squirewell insufficient to also his argues that the on evidence Four. was To sustain conviction Count establish a violation of 924(c), the Government must prove that the firearm "furthered, advanced or helped forward a drug trafficking crime." Lomax, 293 F.3d at 705. Factors that might lead a reasonable trier of fact to conclude that the requisite nexus existed between the firearm and the drug offense include: (1) the type of of gun drug the is activity firearm; loaded; that (3) is the being type to conducted; of weapon; or (2) (4) drug accessibility whether the (5) proximity drugs profits; and (6) the time and circumstances under which the gun is found. Id. Here, Squirewell's the evidence was sufficient The to sustain presented 924(c) conviction. 4 Government evidence that Squirewell constructively possessed the firearm. The types and amounts of the various drugs found in the cigar box in Squirewell's vehicle indicated that Squirewell was a dealer, and Squirewell admitted that the cocaine in the cigar box was what remained after selling approximately two ounces. The gun was discovered on the same day that Squirewell admitted to purchasing four ounces of cocaine and selling two of those ounces, and the gun was in such close proximity to the cigar box that it was touching the box. This evidence was sufficient for a rational fact finder to have found the essential elements of 924(c) beyond a reasonable doubt. Finally, erred in imposing Squirewell a argues that the district court consecutive five-year mandatory minimum sentence based on his conviction on Count Four. We review for United plain error because Squirewell failed to object below. States v. Olano, 507 U.S. 725, 732 (1993). a finding that: Plain error requires (1) there was error; (2) the error was "plain;" Id. If the and (3) the error affected his substantial rights. three elements of this standard are met, this court may still exercise its discretion to notice the error only "if the error seriously affect[s] the fairness, Id. integrity, or public reputation of judicial proceedings." Section 924(c)(1)(A), in relevant part, provides for a mandatory minimum sentencing schedule, "[e]xcept to the extent 5 that a greater minimum sentence is otherwise provided by this subsection or any other provision of law . . ." In light of this clause, Squirewell argues that the district court erred in imposing the five-year sentence because he was already subject to a ten-year mandatory minimum sentence due to his conviction on Count Three and a prior drug distribution conviction. Squirewell concedes, however, that the argument he advances was rejected by this court in United States v. Studifin, 240 F.3d 415 (4th Cir. 2001). Accordingly, the district court did not err in imposing a five-year consecutive sentence. We sentence. therefore We dispense affirm with Squirewell's argument convictions as the facts and and oral contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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