United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 9, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-30775
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NELSON WILLIAMS, also known as Lil’ Bo,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-22-1-J
_________________________________________________________________
Before JOLLY, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Nelson Williams (also known as “Lil’ Bo”) was indicted on six
counts, all relating to the possession and distribution of crack
cocaine. Specifically, Williams was charged with (1) conspiracy to
distribute more than five but less than fifty grams of crack
cocaine; (2) two counts of possession with intent to distribute
crack cocaine; (3) distribution of crack cocaine; (4) possession of
a firearm in furtherance of a drug trafficking crime; and (5)
possession of a firearm by a felon.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
At trial, Williams moved for acquittal under FED. R. CRIM. P.
29(a). The district court denied the motion and the jury
subsequently convicted Williams on all six counts. Williams now
appeals the denial of his motion for acquittal, contending that the
government failed to present sufficient evidence to sustain a
conviction on any of the six charges against him.
I
We review the denial of a motion for acquittal de novo,
applying the same standard as the district court in reviewing the
sufficiency of the evidence. See United States v. Anderson, 174
F.3d 515, 522 (5th Cir. 1999). In determining whether there was
sufficient evidence to sustain a defendant’s conviction, we view
the evidence and the inferences therefrom in the light most
favorable to the verdict, and ask whether a rational juror could
have found the defendant guilty beyond a reasonable doubt. Id.
It is evident that a majority of Williams’s six points of
error lack merit. Moreover, it is clear that this case has value
only to the parties, who well understand the facts and issues. We
therefore confine our substantive discussion to whether there was
sufficient evidence to sustain Williams’s conviction for (A)
conspiracy to violate narcotics laws, and (B) possession of a
firearm in furtherance of a drug trafficking crime.
A
In order to support a conspiracy conviction under 21 U.S.C. §
846, the government must show “(1) the existence of an agreement
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between two or more persons to violate the narcotics laws, (2) that
each alleged conspirator knew of the conspiracy and intended to
join it, and (3) that each alleged conspirator did participate in
the conspiracy”. United States v. Puig-Infante, 19 F.3d 929, 936
(5th Cir. 1994). In this case, the government must show an
agreement to “distribute and possess with intent to distribute more
than five but less than fifty grams of crack cocaine”, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(3).
As an initial matter, it is abundantly clear that Williams and
Tyrone Smith combined to distribute less than one gram of crack
cocaine to an undercover officer on April 9, 2003. This fact
alone, however, cannot support a finding that Williams and Smith
engaged in a conspiracy to distribute additional quantities of
cocaine. Nothing in the record suggests any ongoing agreement
between the two. At trial, the government conceded that it could
not link Smith to the cocaine seized from Williams’s residence on
November 12, 2003. Moreover, there is no evidence to suggest the
existence of any unidentified third party with whom Williams might
have conspired to distribute cocaine.
Given the utter lack of evidence on this point, no rational
juror could have found beyond a reasonable doubt that Williams
conspired to distribute more than five grams of crack cocaine. We
therefore hold, as we must, that the district court erred in
denying Williams’s motion for acquittal on the conspiracy charge.
B
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Turning to Williams’s one remaining argument of note, we hold
that the government presented sufficient evidence to sustain
Williams’s conviction for possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
and (c)(1)(B)(i). In United States v. Ceballos-Torres, 218 F.3d
409 (5th Cir. 2000), we set forth a multi-factor test for
determining whether possession of a firearm is “in furtherance” of
a drug crime. The relevant factors include, inter alia, the
“accessibility of the firearm, ... whether the gun is loaded,
proximity to drugs or illegal profits, and the time and
circumstances under which the gun is found”. Id. at 414-15.
In the instant case, police found a loaded sawed-off shotgun
and a nine millimeter pistol literally on top of thirty-three grams
of cocaine and a digital scale in Williams’s attic, as well as a
loaded AK-47-style assault rifle hidden under the dresser in
Williams’s bedroom. Williams contends that, because the attic is
relatively difficult to access –- the police were forced to climb
on a chair to reach it –- so too were the shotgun and pistol,
making it unlikely that they would be used “in furtherance” of a
drug crime.
We need not linger long on this argument. Whatever difficulty
Williams faced in accessing the shotgun and pistol, they were,
without question, readily available to him when he needed them most
–- i.e., when he was retrieving cocaine prior to making a sale. We
therefore hold that the evidence adduced at trial was sufficient to
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show that Williams’s firearms afforded him added security while he
engaged in the sale of narcotics. Accordingly, the district court
did not err in denying Williams’s motion for acquittal on this
count.
II
For the foregoing reasons, we REVERSE the district court’s
denial of Williams’s motion for acquittal on the charge of
conspiracy to distribute and possess with intent to distribute more
than five but less than fifty grams of crack cocaine, and VACATE
Williams’s conviction and sentence on that count. The judgment of
the district court is, in all other respects, AFFIRMED.
AFFIRMED in part; REVERSED and VACATED in part.
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