US v. Kastler Cherisme

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00866-RBH-3. Copies to all parties and the district court/agency. [998427159] [09-4552]

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US v. Kastler Cherisme Doc. 0 Case: 09-4552 Document: 48 Date Filed: 09/17/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4552 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KASTLER CHERISME, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00866-RBH-3) Submitted: August 31, 2010 Decided: September 17, 2010 Before WILKINSON, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. D. Craig Brown, Florence, South Carolina, for Appellant. Carrie Ann Fisher, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 09-4552 Document: 48 Date Filed: 09/17/2010 Page: 2 PER CURIAM: Kastler conspiracy to Cherisme with was indicted to and charged with in possess intent distribute heroin, violation of 21 U.S.C. 846 (2006) (Count One), and possession with intent to distribute heroin, in violation of 21 U.S.C. 841(a)(1) (2006) (Count Two). Cherisme proceeded to a jury trial, during which a co-conspirator testified against Cherisme pursuant to a plea agreement with the Government. At the conclusion of all the evidence, the jury found Cherisme guilty of both counts in the indictment. Thereafter, Cherisme filed a Fed. R. Crim. P. 29 motion for a new trial, arguing that the evidence was insufficient to sustain the jury's verdict. district court denied Cherisme's motion and The subsequently sentenced him to fifty-one months of imprisonment on each of Counts One and Two. On appeal, Cherisme timely noted his appeal. counsel for Cherisme has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states that there are no meritorious issues for appeal but questions whether the district court erred in denying the Rule 29 motion. Finding no error, we affirm. Cherisme, informed of his supplemental brief, has not done so. 2 right to file a pro se Case: 09-4552 Document: 48 Date Filed: 09/17/2010 Page: 3 This court reviews the denial of a Rule 29 motion de novo. United States v. Kellam, 568 F.3d 125, 132, 138 (4th Cir.), cert. denied, 130 S. Ct. 657 (2009). Where, as here, the motion is based on a claim of insufficient evidence, "[t]he verdict of a jury taking must the be view sustained most if there to is the substantial evidence, favorable Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942); see United States v. Midgett, 488 F.3d 288, 297 (4th Cir. 2007). finder "Substantial of fact evidence is evidence as that a reasonable could accept adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Delfino, 510 F.3d 468, 471 (4th Cir. 2007) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (alterations omitted)). This evidence, and court permits reviews the both direct and the circumstantial benefit of all "[G]overnment reasonable inferences from the facts proven to those sought to be established." (4th Cir. 1982). United States v. Tresvant, 677 F.2d 1018, 1021 In resolving issues of substantial evidence, this court does not weigh evidence or reassess the factfinder's determination of witness credibility, United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989), and "can reverse a conviction on insufficiency grounds only when the prosecution's failure is 3 Case: 09-4552 Document: 48 Date Filed: 09/17/2010 Page: 4 clear." United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotations omitted). To establish Count One, the Government was required to prove "(1) an agreement between two or more persons to engage in conduct that violates a federal drug law, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary participation in the conspiracy." 139 (internal quotation marks omitted). Kellam, 568 F.3d at "After a conspiracy is shown to exist, . . . the evidence need only establish a slight connection between the defendant and the conspiracy to support conviction." Id. (internal quotation marks omitted). To establish Count Two, the Government was required to prove "(1) possession of the controlled substance, (2) knowledge of the possession, and (3) intent to distribute." United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009) (internal quotation marks omitted). constructive. Possession may be either actual or "A person may have constructive possession of contraband if he has ownership, dominion, or control over the contraband or the premises or vehicle in which the contraband was concealed." Cir.), cert. United States v. Herder, 594 F.3d 352, 358 (4th denied, 130 S. the Ct. 3440 (2010). must To prove the constructive possession, Government establish defendant's knowledge of the contraband's presence, with either direct or circumstantial evidence. 4 Id. Case: 09-4552 Document: 48 Date Filed: 09/17/2010 Page: 5 We have reviewed the record on appeal and find more than sufficient evidence to sustain the jury's verdict on Counts One and Two. Accordingly, the district court did not err in denying Cherisme's Rule 29 motion. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Cherisme's conviction and sentence. This court requires that counsel inform Cherisme, in writing, of the right to petition the Supreme Court of the United States for further review. If Cherisme 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 was served on Cherisme. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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