UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5236
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAIME AVELAR CASTRO, a/k/a Jaime Avelar-Castro,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cr-00278-LMB-1)
Submitted: April 22, 2010 Decided: May 19, 2010
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
John O. Iweanoge, II, IWEANOGE LAW CENTER, Washington, D.C., for
Appellant. Dana Boente, United States Attorney, Joshua L.
Rogers, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a three-day trial, Jaime Avelar Castro was
convicted by a jury of conspiracy to distribute cocaine, three
counts of distribution of cocaine, and possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 2, 841(a)(1) &
846 (2006). The district court denied Castro’s motions for
judgment of acquittal and sentenced Castro to sixty months’
imprisonment on each count, to be served concurrently. On
appeal, Castro challenges the sufficiency of the evidence as to
each count of conviction. Finding no error, we affirm.
Rule 29 of the Federal Rules of Criminal Procedure
provides that a district court must enter a judgment of
acquittal where the evidence is insufficient to sustain a
conviction. Fed. R. Crim. P. 29(a). We review the district
court’s denial of a Rule 29 motion for judgment of acquittal de
novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
2005). A defendant challenging the sufficiency of the evidence
“bears a heavy burden.” United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997) (internal quotation marks omitted).
The jury’s verdict 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);
United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008)
(internal quotation marks and citations omitted), cert. denied,
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129 S. Ct. 1312 (2009). This court “ha[s] defined ‘substantial
evidence’ as evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Alerre, 430 F.3d
at 693 (internal quotation marks and citations omitted). In
reviewing for substantial evidence, we consider both
circumstantial and direct evidence and allow the Government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333 (4th
Cir. 2008).
To convict Castro of conspiracy to distribute cocaine,
the Government had to prove that there was an agreement between
two or more people to distribute cocaine, that Castro knew of
the agreement, and that he knowingly and voluntarily became part
of the conspiracy. United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996). To prove the three counts of distribution, the
Government had to show that Castro knowingly and intentionally
distributed cocaine. United States v. Yearwood, 518 F.3d 220,
227 (4th Cir. 2008). Distribution can be actual or
constructive. The defendant “need not actually have physically
transferred the cocaine in order to be found guilty of the
substantive offense of distribution.” United States v. Acevedo,
842 F.2d 502, 507 (1st Cir. 1988). To support a conviction for
possession with intent to distribute, the Government must prove
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that Castro knowingly possessed the cocaine and intended to
distribute or deliver the cocaine. See United States v.
Collins, 412 F.3d 515, 519 (4th Cir. 2005). 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). “Once it is
established that a defendant is a participant in a conspiracy to
possess and distribute a controlled substance, he need not have
actual possession of the controlled substance to be guilty of
the substantive charge of possession with intent to distribute.
Constructive possession is sufficient.” United States v.
Laughman, 618 F.2d 1067, 1076-77 (4th Cir. 1980) (citations
omitted).
With these standards in mind, our thorough review of
the trial transcript convinces us that the evidence was
sufficient to support Castro’s convictions on all five counts.
We therefore affirm Castro’s convictions. 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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