US v. Kastler Cherisme
Filing
UNPUBLISHED PER CURIAM OPINION filed.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]
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4552 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KASTLER CHERISME, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?