UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4530
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN ALBRITTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:12-cr-00005-F-1)
Submitted: August 29, 2014 Decided: September 5, 2014
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Albritton was convicted following a jury trial of
being a felon in possession of firearms, in violation of 18
U.S.C. § 922(g)(1) (2012), and two counts of distribution of
cocaine base, in violation 21 U.S.C. § 841(a)(1) (2012).
Albritton was sentenced under the Armed Career Criminal Act
(“ACCA”) to three concurrent terms of 180 months’ imprisonment.
Albritton appeals, challenging: (1) the sufficiency of the
evidence supporting his convictions; (2) the propriety of his
armed career criminal designation; and (3) whether the district
court properly allowed testimony at trial regarding prior drug
activity.
We review the district court’s denial of a Fed. R.
Crim. P. 29 motion de novo. United States v. Jaensch, 665 F.3d
83, 93 (4th Cir. 2011). We must sustain the jury’s verdict “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); see United States v. Al Sabahi, 719 F.3d
305, 311 (4th Cir.) (defining substantial evidence), cert.
denied, 134 S. Ct. 464 (2013). We “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Lawing, 703 F.3d 229, 240 (4th Cir.
2012) (internal quotation marks omitted), cert. denied, 133 S.
Ct. 1851 (2013).
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Albritton first challenges his felon in possession
conviction, arguing that the government did not establish that
he constructively possessed the firearms. ∗ “[P]roof of actual or
exclusive possession [is not necessary]; constructive or joint
possession is sufficient.” Lawing, 703 F.3d at 240.
“Constructive possession is established when the government
produces evidence that shows ownership, dominion, or control
over the contraband itself or the premises or vehicle in which
the contraband is concealed.” Id. (internal quotation marks
omitted). Because the government introduced ample testimony
that Albritton had dominion and control over the trailer and
vehicle in which the firearms were located, we conclude that
there was sufficient evidence to support the jury’s finding that
Albritton possessed the firearms.
Albritton next argues that the government failed to
prove that the substances purchased during controlled
transactions by the confidential informant were in fact cocaine
base and thus there was insufficient evidence to support his
convictions for distribution of cocaine base. To establish a
violation of 21 U.S.C. § 841(a)(1), the government was required
to prove (1) distribution of cocaine base, (2) that Albritton
∗
Albritton concedes that he had a prior felony conviction
and that the firearms traveled in interstate commerce.
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had knowledge of the distribution, and (3) that Albritton
intended to distribute the cocaine base. United States v.
Randall, 171 F.3d 195, 209 (4th Cir. 1999). The government
presented testimony from law enforcement and the informant that
Albritton sold cocaine base during the two controlled
transactions. In addition, the government introduced into
evidence the two quantities of cocaine base purchased from
Albritton and laboratory reports identifying the quantities as
cocaine base. Our review of the record therefore confirms that
substantial evidence existed to support Albritton’s distribution
convictions.
Albritton also contends he has not been convicted of
three prior serious drug felonies and therefore should not have
been sentenced as an armed career criminal. Because Albritton
withdrew his objection to the armed career criminal designation
at sentencing, this Court’s review is for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). Under this standard, Albritton must establish that:
“(1) there is an error, (2) the error is plain, and (3) the
error affects substantial rights.” Henderson v. United States,
133 S. Ct. 1121, 1126 (2013) (internal quotation marks and
alterations omitted). Even if the three factors are
established, correction of a plain error rests within this
Court’s discretion, to be exercised only if the error “seriously
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affects the fairness, integrity or public reputation of judicial
proceedings.” Olano, 507 U.S. at 732 (internal alterations
omitted).
Under the ACCA, if a defendant is convicted of
violating § 922(g) and has sustained three prior convictions for
violent felonies or serious drug offenses committed on occasions
different from one another, the defendant is subject to a
statutory mandatory minimum of fifteen years of imprisonment.
18 U.S.C. § 924(e)(1). Albritton contends he has not been
convicted of three prior serious drug offenses on the basis that
his prior convictions should not have been counted separately.
However, at least three of the crimes for which Albritton was
convicted were “committed on occasions different from one
another,” arising out of “separate and distinct criminal
episode[s].” 18 U.S.C. § 924(e); United States v. Davis, 689
F.3d 349, 358–59 (4th Cir. 2012) (internal quotation marks
omitted). We therefore reject Albritton’s challenge to his
armed career criminal designation.
Finally, Albritton argues that the district court
improperly allowed evidence regarding prior drug activity
because such testimony constituted Fed. R. Evid. 404(b) evidence
for which the Government did not give adequate notice and the
prior drug activity was not “inextricably intertwined” with the
controlled purchases. A district court’s evidentiary rulings
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are reviewed for abuse of discretion. United States v. Kelly,
510 F.3d 433, 436 (4th Cir. 2007).
Rule 404 prohibits evidence of crimes or other bad
acts to “prove a person’s character in order to show that . . .
the person acted in accordance with the character.” See Fed. R.
Evid. 404(b)(1). However, acts that are intrinsic to the crime
are not barred by Rule 404(b) where “inextricably intertwined or
both acts are part of a single criminal episode or the other
acts were necessary preliminaries to the crime charged.” United
States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). “Evidence is
inextricably intertwined with the evidence regarding the charged
offense if it forms an integral and natural part of the
witness’s accounts of the circumstances surrounding the offenses
for which the defendant was indicted.” United States v. Wilson,
624 F.3d 640, 652 (4th Cir. 2010) (alteration omitted). We have
also held that evidence is intrinsic if it “is necessary to
complete the story of the crime on trial” or “to provide context
relevant to the criminal charges.” United States v. Basham, 561
F.3d 302, 326 (4th Cir. 2009) (internal quotation marks and
alterations omitted). The challenged witness testimony provided
relevant context to the drug and firearm charges against
Albritton and the evidence found on his premises, and thus was
not subject to Rule 404(b). We therefore conclude that the
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district court did not abuse its discretion in allowing
testimony regarding Albritton’s prior drug activity.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid in the decisional
process.
AFFIRMED
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