UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC ATKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-00-279)
Submitted: August 20, 2004 Decided: October 21, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
I. Scott Pickus, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Peter S.
Duffey, Assistant United States Attorneys, Robert M. Worster, III,
Third-Year Law Student Intern, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eric Atkins appeals his conviction for possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841
(2000); possession of cocaine base, in violation of 21 U.S.C. § 844
(2000); possession of marijuana, in violation of 21 U.S.C. § 841
(2000); and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2000).
In August 2000, Atkins was charged in a six-count
indictment for various drug trafficking crimes. Prior to trial,
Atkins filed a motion to suppress evidence, alleging that the
narcotics and firearms were obtained in violation of his Fourth
Amendment rights. On October 27, 2000, the district court granted
Atkins’ motion and suppressed the drugs and firearms found in his
possession. The Government appealed. In an unpublished opinion,
this Court reversed the district court’s ruling on the suppression
motion and remanded for further proceedings. United States v.
Atkins, 2001 WL 863557, 16 Fed. Appx. 145 (4th Cir. 2001). On
remand, the district court admitted the evidence, and Atkins was
found guilty of three drug charges and one firearms charge.
On appeal, Atkins argues that the district court
improperly admitted the previously suppressed evidence because this
Court’s ruling was “not based upon a clear evidentiary description
of how much of the gun was visible.” Atkins specifically contends
that the trial further developed the record and established that
- 2 -
the gun was in plain view, not concealed, and thus its presence in
the car was not a violation of Virginia’s concealed weapons law.
See Va. Code Ann. § 18.2-308(A) (Michie Supp. 2004). Generally,
“‘the doctrine [of the law of the case] posits that when a court
decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.’” United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16
(1988)). The law of the case must be applied:
in all subsequent proceedings in the same case in the
trial court or on a later appeal . . . unless: (1) a
subsequent trial produces substantially different
evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or (3)
the prior decision was clearly erroneous and would work
manifest injustice.
Id. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th
Cir. 1988)). Atkins asserted the same argument before this Court
in his previous appeal. Atkins has not presented substantially
different evidence than that considered by this Court in his prior
appeal. Aramony, 166 F.3d at 661. Consequently, in keeping with
the doctrine of the law of the case, we conclude that the district
court properly admitted the evidence. Id.
Atkins also contends that the evidence is insufficient to
support his conviction for possession of a firearm in furtherance
of a drug trafficking crime, in violation of § 924(c). “The
verdict of a jury must be sustained if there is substantial
- 3 -
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
After careful review of the record, we conclude that there is
sufficient evidence to sustain Atkins’ conviction for violating
§ 924(c). 18 U.S.C. § 924(c)(2000); Glasser, 315 U.S. at 80;
United States v. Sloley, 19 F.3d 149, 152 (4th Cir. 1994) (holding
that the government must prove the defendant possessed a firearm,
during and in relation to a drug trafficking crime); United States
v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (listing factors which
may establish the nexus between the firearm and the drug
trafficking offense); United States v. Blue, 957 F.2d 106, 107 (4th
Cir. 1992) (holding that constructive possession may be proven by
showing dominion or control over the contraband or vehicle in which
the contraband is concealed).
Finally, Atkins asserts that the district court erred by
converting cash to the drug equivalent because the Government did
not prove the cash equivalency by a preponderance of the evidence.
A district court’s specific factual findings regarding the proper
amount of drugs will be upheld unless the record demonstrates that
it is clearly erroneous, United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989), but the burden of proof by a preponderance of
the evidence rests with the government. United States v. Williams,
880 F.2d 804, 806 (4th Cir. 1989). After careful review we find no
- 4 -
error in the district court’s calculations.* Daughtrey, 874 F.2d
at 217.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
*
Atkins does not assert an argument pursuant to Blakely v.
Washington, 124 S. Ct. 2531 (2004), on appeal, and any such claim
would be meritless in light of this court’s recent decision in
United States v. Hammoud, No. 03-4253, 2004 WL 1730309 (4th Cir.
Aug. 2, 2004) (order), petition for cert. filed, ___ U.S.L.W. ___
(U.S. Aug. 6, 2004) (No. 04-193).
- 5 -