UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LANCE O. PORTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CR-04-30045)
Submitted: November 15, 2006 Decided: November 17, 2006
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary L. Smith, LAW OFFICES OF GARY LANCE SMITH, P.C., Winchester,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Ray B. Fitzgerald, Jr., Assistant United States Attorney, Evan
Seifert, Third Year Practice Intern, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lance O. Porter appeals his conviction for possession of
a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2006). Porter was also
convicted of possession with intent to distribute marijuana, which
he does not contest. On appeal, Porter’s sole argument is whether
the Government presented sufficient evidence to demonstrate that
his possession of the firearm was to further a drug trafficking
crime. We affirm.
To determine whether there was sufficient evidence to
support a conviction, this court considers whether, taking the
evidence in the light most favorable to the Government, any
reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60,
80 (1942). To establish a violation of 18 U.S.C.A. § 924(c), the
Government must prove that the defendant possessed a firearm and
that the firearm “furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002). Factors that might lead a reasonable trier of fact to
conclude that the requisite nexus existed between the firearm and
the drug offense include: “‘the type of drug activity that is being
conducted, accessibility of the firearm, the type of weapon . . .,
whether the gun is loaded, proximity to drugs or drug profits, and
the time and circumstances under which the gun is found.’” Id.
- 2 -
(quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15
(5th Cir. 2000)). “Ultimately, the test is whether a reasonable
jury could, on the evidence presented at trial, find beyond a
reasonable doubt that possession of the firearm facilitated a drug
trafficking crime . . .; ‘in furtherance’ means that the gun
afforded some advantage (actual or potential, real or contingent)
relevant to the vicissitudes of drug trafficking.” United
States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005). To that end,
a firearm might further or advance drug trafficking as a defense
against someone trying to steal drugs or drug profits or as a
deterrence to a robbery. Lomax, 293 F.3d at 705.
Here, we find that a reasonable jury could conclude that
Porter’s possession of the firearm was to further drug trafficking.
The .45 caliber pistol with a fully loaded magazine, but empty
chamber, was found on Porter’s kitchen counter next to digital
scales and within close proximity to a large amount of marijuana.
See id. We therefore affirm Porter’s conviction.
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
- 3 -