United States v. Black

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4658

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ADOLPHUS BLACK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CR-04-100)

Submitted: August 16, 2006 Decided: September 21, 2006

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Edward Riley, IV, BOONE, BEALE, COSBY & LONG, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Brian Whisler, Michael C. Wallace, Sr., Assistant United States
Attorneys, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Following a jury trial, Adolphus Black was convicted of

possessing at least 200 but less than 300 grams of powder cocaine,

in violation of 21 U.S.C. § 841 (2000) (“Count One”), being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e) (2000) (“Count Two”), and distributing fifty grams or

more of crack cocaine, in violation of 21 U.S.C. § 841 (“Count

Three”). He was sentenced to 360 months’ imprisonment. Black

challenges the district court’s denial of his motion for a judgment

of acquittal pursuant to Federal Rule of Criminal Procedure 29 and

his sentence. Finding no error, we affirm.

Taken in the light most favorable to the Government, the

record establishes the following facts. In the fall of 2003 and

early winter of 2004, the City of Richmond, Virginia, Police

Department utilized a confidential informant, Darrell Woolridge

(“Woolridge”), to purchase crack and powder cocaine from an

individual later determined to be Black.1 In February 2004,

Detective Mark Dunn instructed Woolridge to order sixty-two grams

of crack from Black. Prior to the sale, law enforcement began to

surveil 1405 Ivy Mount Drive, Apt. A (the “apartment”), which law

enforcement officers suspected Black used.

1
At the beginning of the operation, law enforcement agents did
not know Black’s identity. However, Black’s identity was
established in February 2004, when another Richmond police officer
stopped Black’s vehicle, a 1990 Honda Civic, license plate number
JHA-7482, and requested to see Black’s driver’s license.

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 Before departing for the controlled purchase, Det. Dunn

thoroughly searched both Woolridge’s vehicle and his person to

ensure that he did not have any narcotics or money. Finding

nothing, Det. Dunn gave Woolridge $2000 to purchase crack from

Black, and followed Woolridge to the site of the buy; Det. Dunn

never lost sight of Woolridge. After completing the transaction,

Woolridge drove to the established meeting area, which was only a

very short distance from the site of the buy. Det. Dunn followed

Woolridge the entire time, and recovered approximately 59 grams of

crack from him. Det. Dunn again searched Woolridge and the vehicle

to ensure he had no other drugs or money.

On March 18, 2004, Woolridge, at the behest of police

officials, called Black and ordered 500 grams of cocaine. Black

informed Woolridge he was in New York, but that he would return to

Richmond on March 22 with the drugs. Law enforcement officials

accordingly staked out I-95 for Black’s vehicle. After spotting

Black’s vehicle, law enforcement stopped it and arrested Black, the

sole occupant therein. Det. Dunn testified that the man he

arrested on March 22 was the same man he saw with Woolridge on

February 11. At the time of his arrest, Black was carrying a

cellular telephone; law enforcement officials dialed the number

Woolridge used to order the narcotics, and Black’s cell phone rang.

Black also possessed a key to the apartment on Ivy Mount Road.

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 After arresting Black, Det. Dunn examined the vehicle and

noticed a single black glove lying on the driver’s side floor

board, inside of which was a plastic baggie full of a white

substance. Forensic testing revealed the substance to be 248.6

grams of powder cocaine. Law enforcement then obtained a warrant

to search the apartment. During the course of the search, officers

recovered a scale, a single black glove, and a handgun from a small

end table in the living room. In a dresser in the bedroom, the

officers found several documents bearing Black’s name.

Temica Gay, Black’s girlfriend at the time, testified

that though she now resides there herself, she and Black shared the

apartment between September 2003 and March 2004. Ms. Gay explained

that Black stayed at the apartment “whenever he came to Virginia.”

Because she gave Black a key to the apartment, he had complete

access thereto, and was often at the apartment alone while Ms. Gay

was at work. Although they shared the bedroom at one point, Black

had begun to sleep on the living room couch. The end table from

which the gun, scale, and glove were seized was located near the

couch on which Black slept. Ms. Gay testified that she recognized

the black glove as being Black’s, but that she had never seen the

handgun.

Black first challenges the sufficiency of the

Government’s evidence supporting the guilty verdicts. We review

the denial of a Rule 29 motion de novo. United States v. Alerre,

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430 F.3d 681, 693 (4th Cir. 2005). Where, as here, the motion was

based on a claim of insufficient evidence, “[t]he verdict of a jury

must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it.” Glasser v.

United States, 315 U.S. 60, 80 (1942). We consider both

circumstantial and direct evidence, “and allow the government the

benefit of all reasonable inferences from the facts proven to those

sought to be established.” United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982). Further, on appellate review, we “may

not weigh the evidence or review the credibility of the witnesses.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

To establish a violation of 21 U.S.C. § 841(a)(1), the

Government must prove beyond a reasonable doubt that Black:

(1) knowingly; (2) possessed the controlled substance; (3) with the

intent to distribute it. United States v. Burgos, 94 F.3d 849, 873

(4th Cir. 1996) (en banc). Possession may be actual or

constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.

1992). “A person has constructive possession of a narcotic if he

knows of its presence and has the power to exercise dominion and

control over it.” United States v. Schocket, 753 F.2d 336, 340

(4th Cir. 1985). Possession need not be exclusive but may be

joint, and “may be established by direct or circumstantial

evidence.” Id.; United States v. Wright, 991 F.2d 1182, 1187 (4th

Cir. 1993). This court has held that “where other circumstantial

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evidence . . . is sufficiently probative, proximity to contraband

coupled with inferred knowledge of its presence will support a

finding of guilt on such charges.” United States v. Laughman, 618

F.2d 1067, 1077 (4th Cir. 1980) (internal quotations and citation

information omitted). Intent to distribute may be inferred if the

amount of drugs found exceeds an amount normally associated with

personal consumption. Wright, 991 F.2d at 1187.

To prove distribution, the Government had to show Black:

(1) knowingly or intentionally distributed the controlled substance

stated in the indictment, and (2) knew, at the time of

distribution, that the substance distributed was a controlled

substance. United States v. Brower, 336 F.3d 274, 276 (4th Cir.

2003) (internal quotations and citation information omitted). To

distribute a controlled substance means to deliver it; delivery, in

turn, is “the actual, constructive, or attempted transfer of a

controlled substance . . . .” United States v. Washington, 41 F.3d

917, 919 (4th Cir. 1994) (internal quotations and citation

information omitted).

Viewing the evidence in the light most favorable to the

Government, a rational trier of fact could conclude that on March

22, Black possessed the cocaine with intent to distribute it, and

that on February 11, Black distributed crack cocaine. Therefore,

we find the jury’s unanimous verdicts were supported by substantial

evidence.

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 Turning to Count Two, the felon-in-possession charge, we

note that the parties stipulated to Black’s prior felony conviction

and that the handgun recovered traveled in interstate commerce.

Thus, the only contested issue at trial was whether Black possessed

the handgun. Possession may be actual, constructive, or joint.2

United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001).

“[T]o establish constructive possession, the government must

produce evidence showing ownership, dominion, or control over the

contraband itself or the premises or vehicle in which the

contraband is concealed.” United States v. Blue, 957 F.2d 106, 107

(4th Cir. 1992) (quotations and citation information omitted).

Possession may be established by circumstantial evidence.

Schocket, 753 F.2d at 340. The discovery of contraband at the

defendant’s home “permits an inference of constructive possession.”

United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003).

The Government’s evidence was sufficient to support the jury’s

guilty verdict on this count. Constructive possession may be

established by showing the defendant had ownership or control over

the premises on which contraband is discovered. United States v.

Hines, 39 F.3d 74, 78 (4th Cir. 1995), vacated on other grounds,

516 U.S. 1156 (1996); United States v. Kitchen, 57 F.3d 516, 521

(7th Cir. 1995). Law enforcement officials discovered a handgun in

2
The Government did not attempt to prove Black actually
possessed the handgun.

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the Ivy Mount Road apartment. Ms. Gay testified that she lived in

the apartment, that she gave Black a key to the apartment, that

Black had unrestricted access to the apartment, and that she never

saw the handgun before. Ms. Gay further testified that Black lived

with her intermittently between September 2003 and March 2004, that

Black stayed in the apartment “every time” he came to Virginia, and

that he was alone in the apartment while she was at work. Trial

testimony further established that the apartment contained several

papers — including a traffic citation — bearing Black’s name. See

Shorter, 328 F.3d at 171 (papers found in Shorter’s home

“sufficient to link Shorter to the residence”). Considering that

Black had unfettered access to the apartment, kept personal papers

there, and inhabited the apartment with the latitude of a resident

— albeit a part-time resident — the jury could have reasonably

concluded Black had sufficient dominion and control over the

apartment to support a finding of constructive possession.

Alternatively, the jury could have reasonably found

sufficient evidence of constructive possession in light of the

Government’s evidence of Black’s dominion and control over the

handgun itself. Ms. Gay testified that though she and Black had,

for a time, slept together in the bedroom, he began sleeping on the

couch. Law enforcement recovered the handgun from the small end

table located adjacent to the couch on which Black slept. The

close proximity between the handgun and the couch, coupled with Ms.

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Gay’s testimony that she had never seen the firearm before,

supports the guilty verdict. The Government’s evidence of Black’s

constructive possession of the handgun is bolstered by the fact

that one of Black’s black gloves was discovered on this same end

table, the match to which was recovered from Black’s vehicle on the

night of his arrest. Ms. Gay testified she had seen Black with a

pair of black gloves and that she had seen a black glove on the end

table. Under either theory, the Government’s evidence was

sufficient to support the guilty verdict.

Lastly, Black argues the district court improperly

considered his underlying state court convictions in designating

him a career offender and sentencing him pursuant to the Armed

Career Criminal Act. Black contends that, because the record does

not conclusively prove that his Sixth Amendment right to counsel

was observed during the course of these underlying proceedings, the

district court should not have considered those convictions as

predicate offenses for enhancement purposes.

Black’s argument lacks merit. There is a presumption of

regularity afforded final criminal judgments. Parke v. Raley, 506

U.S. 20, 29 (1992). A defendant who challenges prior convictions

used to enhance his sentence in a later offense bears the burden of

showing that the prior convictions were invalid. United States v.

Jones, 977 F.2d 105, 109-11 (4th Cir. 1992). Black offers nothing

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more than a conclusory assertion to support his claim; absent more,

Black’s claim fails.

For the foregoing reasons, we affirm Black’s convictions

and sentence. 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

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