UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD OLTON, a/k/a Bobby, a/k/a O.B.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. William L. Osteen,
Senior District Judge. (3:03-cr-00127-1)
Submitted: June 6, 2007 Decided: July 10, 2007
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sofie W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Jonathan A. Vogel, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Olton was convicted by a jury of one count of
conspiracy to possess with intent to distribute cocaine, cocaine
base, and heroin, in violation of 21 U.S.C. § 846 (2000), one count
of possession with intent to distribute cocaine and heroin, in
violation of 21 U.S.C. § 841 (2000), one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000), and one count of possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(2000). Olton appeals the district court’s judgment, entered
pursuant to the jury’s verdict. Although Olton does not contest
his sentence, he does challenge his convictions. For the following
reasons, we affirm.
Olton first claims that the district court erred in
denying his motion to suppress because the stop of his car was not
based on reasonable suspicion. This court reviews the factual
findings underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). When a suppression motion
has been denied, this court reviews the evidence in the light most
favorable to the government. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998). We have reviewed the briefs, the
transcript of the hearing on the motion, and the other materials
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submitted by the parties, and conclude that the district court did
not err in denying Olton’s motion to suppress.
Olton also challenges whether there was sufficient
evidence to convict him under 18 U.S.C. § 924(c) and 21 U.S.C.
§ 841(b)(1)(b). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997). A jury’s verdict must be upheld on
appeal if there is substantial evidence in the record to support
it. Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial, this
court views the evidence in the light most favorable to the
government, and inquires whether there is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to establish a defendant’s guilt beyond a reasonable doubt. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In
evaluating the sufficiency of the evidence, this court does not
review the credibility of the witnesses and assumes that the jury
resolved all contradictions in the testimony in favor of the
government. United States v. Romer, 148 F.3d 359, 364 (4th Cir.
1998).
To establish a violation of 18 U.S.C. § 924(c), the
government must prove 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
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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. (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).
Moreover, the elements of a § 841(a) offense are:
“(1) possession of the narcotic controlled substance, (2) knowledge
of the possession, and (3) intent to distribute the narcotic
controlled substance.” United States v. Randall, 171 F.3d 195, 209
(4th Cir. 1999). The possession element may be established by
proof of actual or constructive possession. Burgos, 94 F.3d at
873; 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.
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1985). Our review of the record leads us to conclude that the
evidence presented to the jury was sufficient to prove that Olton
possessed with intent to distribute cocaine and heroin; and
possessed a firearm in furtherance of a drug trafficking crime.
For the reasons stated herein, we affirm the district
court’s judgment. 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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