US v. Tymon Well

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:10-cr-00869-CMC-1. Copies to all parties and the district court/agency. [998750520]. [11-4638]

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Date Filed: 12/22/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4638

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYMON JAMES WELLS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:10-cr-00869-CMC-1)

Submitted:

December 12, 2011

Decided:

December 22, 2011

Before MOTZ, KING, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia,
South Carolina, for Appellant.
William N. Nettles, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tymon

James

Wells

appeals

from

his

conviction

for

possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006), possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and
using, brandishing, and discharging a firearm in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006).

On appeal, Wells challenges the district court’s answer

to a jury question, claiming that the district court’s response
was an incorrect statement of law that led the jury to convict
him of violating 21 U.S.C. § 841(a)(1).

We affirm.

Because Wells timely objected to the formulation of
the district court’s response to the jury question at issue, we
review for an abuse of discretion the district court’s decision
to respond and the form of that response.
Foster, 507 F.3d 233, 244 (4th Cir. 2007).
jury’s

request

for

clarification

on

a

United States v.
“In responding to a

charge,

the

district

court’s duty is simply to respond to the jury’s apparent source
of confusion fairly and accurately without creating prejudice,”
and an error requires reversal only if it is prejudicial based
on the record as a whole.

Id.

Upon review of the record and the controlling law in
this Circuit, we find that the district court’s response to the
jury’s question was a correct statement of law and not an abuse
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of its discretion.

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We have held that an individual can be

convicted under 21 U.S.C. § 841(a)(1) when he has possessed a
controlled substance with the intent to share it with others.
United States v. Washington, 41 F.3d 917, 920 (4th Cir. 1994);
see also United States v. Wallace, 532 F.3d 126, 129-31 (2nd
Cir. 2008).

Therefore, considering the evidence produced during

Wells’ trial, the district court was correct when it informed
the

jury

“blunt,”

that

constitute

to

drug.

the

one’s

evidence
Wells’

passing
friend

of

could,

indicating

broad

a

the

assertion

marijuana

cigarette,

but

not

need

intent
that

to

or

a

necessarily,

distribute

establishing

the

shared

possession of a controlled substance negates the possibility of
finding that one of the possessors intended to distribute the
substance to the other is a misstatement of the requirements for
conviction under 21 U.S.C. § 841(a)(1).
We find unpersuasive Wells’ reliance on United States
v. Swiderski, 548 F.2d 445 (2d Cir. 1977).

We have previously

declined to consider whether the Second Circuit’s narrow and
fact-bound holding in Swiderski is a proper statement of law in
this

Circuit,

question here.

and

conclude

that

we

need

not

Washington, 41 F.3d at 920 n.2.

resolve

that

The facts of

Wells’ case are far different from those the court considered in
Swiderski, and, therefore, we find the reasoning and holding in
that case inapplicable to our present inquiry.
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Therefore, we affirm Wells’ conviction.

We dispense

with oral argument because the facts and legal conclusions are
adequately

presented

in

the

materials

before

the

court

and

argument would not aid in the decisional process.

AFFIRMED

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