UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4274
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MELVIN DARTFIELD CHRISTIAN, a/k/a Melvin D. Christian,
Defendant - Appellant.
No. 11-4294
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MELVIN DARTFIELD CHRISTIAN, a/k/a Melvin D. Christian,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cr-00200-JRS-1; 3:03-cr-00387-JRS-1)
Submitted: October 26, 2011 Decided: November 4, 2011
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Caroline S. Platt, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard D. Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In No. 11-4274, Melvin Dartfield Christian appeals
from his convictions for possession with intent to distribute
cocaine base, possession of a firearm in furtherance of a drug
trafficking crime, and possession of a firearm by a convicted
felon, and his resulting 480 month sentence. In No. 11-4294,
Christian appeals from the revocation of his supervised release.
On appeal, Christian raises various claims in No. 11-4274, but
none in No. 11-4294. Thus, he has waived any review of the
revocation of supervised release or the imposition of a sentence
in that case. We affirm the criminal judgments in both cases.
I.
Christian first challenges the denial of his motion to
suppress the evidence found in his car. He contends that the
dog sniff in his case was insufficient to establish probable
cause to search his car because (1) the dog Tyson was not well
trained and was unreliable and (2) Tyson’s “alert” was not
distinguishable from a dog’s common behavior.
The Supreme Court has held that a drug dog sniff is
not a search under the Fourth Amendment and a reliable dog alert
provides probable cause that illegal drugs are present.
Illinois v. Caballes, 543 U.S. 405, 409-10 (2005). Moreover, we
have rejected a requirement that “dog alert testimony must
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satisfy the requirements for expert scientific testimony . . .
[because] the dog’s alert . . . would serve not as actual
evidence of drugs, but simply to establish probable cause to
obtain a warrant to search for such substantive evidence.”
United States v. Allen, 159 F.3d 832, 839-40 (4th Cir. 1998).
We have not, however, specifically addressed what, if any,
evidence of a drug dog’s reliability must be offered.
In this case, the Government provided evidence
regarding Tyson’s detailed training and continuing
certification. Moreover, Officer Rodney Womack testified that,
in 2010, Tyson looked for drugs 183 times. During that year,
she had at most three false positives, rendering her alerts over
98% accurate. 1 Similarly, while Tyson failed isolated tests
during her certification process, she was certified annually
since 2008 (and twice in 2010) by the Virginia State Police
after testing in various scenarios. Hence, even assuming that
we would require some evidence of a dog’s reliability before
permitting her alert to provide probable cause, the district
1
Probable cause is “a fair probability that contraband or
evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Because probable
cause does not require certainty, a low percentage of false
positives is not fatal to the finding that a drug detection dog
is properly trained and certified. United States v. Scott, 610
F.3d 1009, 1014 (8th Cir. 2010), cert. denied, 131 S. Ct. 964
(2011).
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court’s implicit finding that Tyson was reliable was not clearly
erroneous.
Turning to the issue of whether Tyson’s “alert” was
sufficient, Officer Womack testified that Tyson “turned her head
sharply,” went to the center post of the driver’s side of the
car, squared off her body with the post, turned her head
slightly, and “started running her nose and snorting at the same
time on the center post.” Womack testified that the head turn
alone was an alert, even without the additional behavior.
Christian asserts that such behavior is insufficient to
constitute an “alert” and contends that lay witnesses did not
see the dog do anything abnormal.
However, the credibility of a dog’s alert rests
“almost entirely on the credibility of the dog handler’s
testimony [b]ecause the handler is the only witness who can
speak to the subjective interaction during a particular dog
alert.” United States v. Howard, 621 F.3d 433, 449 (6th Cir.
2010), cert. denied, 131 S. Ct. 1623 (2011). As Officer Womack
was trained to recognize Tyson’s alert, the fact that other
witnesses did not see Tyson do anything specific is of little
probative value. Despite evidence and argument that Tyson did
not actually alert, the district court found Officer Womack
credible. Thus, the district court’s determination that Tyson
alerted had a proper basis in the evidence and was not clearly
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erroneous. See United States v. Wilson, 624 F.3d 640, 659 (4th
Cir. 2010) (credibility determinations in a suppression hearing
are factual findings reviewed for clear error), cert. denied,
2011 WL 380987 (U.S. Oct. 17, 2011).
Accordingly, as the district court’s determinations
that Tyson alerted and that Tyson was a reliable and certified
drug dog were not clearly erroneous, the dog alert provided
probable cause for the search. As such, the motion to suppress
was properly denied.
II.
Christian next challenges the sufficiency of the
evidence supporting the conclusion that he possessed the firearm
in question. We review a district court’s decision to deny a
Rule 29 motion for a judgment of acquittal de novo. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A defendant
challenging the sufficiency of the evidence faces a heavy
burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997). The verdict of a jury must be sustained “if, viewing the
evidence in the light most favorable to the prosecution, the
verdict is supported by ‘substantial evidence.’” Smith, 451
F.3d at 216 (citations omitted). Substantial evidence is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
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guilt beyond a reasonable doubt.” Id. (internal quotation marks
and citation omitted). Furthermore, “[t]he jury, not the
reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented.” Beidler, 110
F.3d at 1067 (internal quotation marks and citation omitted).
“Reversal for insufficient evidence is reserved for the rare
case where the prosecution’s failure is clear.” Id. (internal
quotation marks and citation omitted).
A deficiency of proof on the element of possession
would invalidate both of Christian’s firearm convictions. To
show possession, the Government was not required to show that
Christian physically possessed the weapon. See United States v.
Blue, 957 F.2d 106, 107 (4th Cir. 1992) (noting that, for a
felon in possession conviction, the Government may proceed on a
constructive possession theory demonstrating that the defendant
showed ownership, dominion, or control over the firearm).
Here, viewing the evidence in the light most favorable
to the Government, the firearm was found in Christian’s car and
was easily accessible from the driver’s seat. The firearm had
Christian’s DNA on it, and Christian stated in open court before
a state magistrate judge that the car contained a gun. 2
2
Christian cites United States v. Sanchez, 961 F.2d 1169,
1173 (5th Cir. 1992), for the proposition that, when “evidence
gives equal or nearly equal circumstantial support to a theory
(Continued)
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Moreover, Christian does not dispute the sufficiency of the
evidence on his drug trafficking conviction, and an expert
testified that street level dealers often use firearms.
Additionally, crack cocaine was found in a jacket in the
backseat of Christian’s car and what appeared to be powder
cocaine was found on the gun. We conclude that the evidence was
overwhelming that Christian possessed the firearm in question.
Accordingly, the district court did not err in denying
Christian’s motion for a judgment of acquittal on this basis.
III.
To convict Christian of violating 18 U.S.C. § 924(c)
(2006), the Government was required to prove that Christian:
of guilt and to a theory of innocence,” we must reverse as “a
reasonable factfinder must necessarily entertain a reasonable
doubt.” Christian avers that he testified at trial that Officer
Christopher Womack misquoted his statement in front of the
magistrate judge. Thus, he claims that his word against the
officer’s places the case in equipoise. However, Christian
actually misquotes Sanchez, which states that the above is true
only when the evidence is in equipoise after viewing the
evidence in the light most favorable to the Government. Id.
Viewing the conflicting evidence in this case in the light most
favorable to the Government would be to assume that the jury
found Officer Womack more credible than Christian. See United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (“The jury,
not the reviewing court, weighs the credibility of the evidence
and resolves any conflicts in the evidence presented, . . . and
if the evidence supports different, reasonable interpretations,
the jury decides which interpretation to believe.”).
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(i) committed a drug trafficking crime and (ii) possessed a
firearm in furtherance of that crime. The first element is not
in dispute, but Christian asserts that there was insufficient
evidence that the firearm was possessed in furtherance of a drug
trafficking crime. Whether a firearm furthered, advanced, or
helped forward a drug trafficking crime is a question of fact,
however. United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002). Many factors might lead a reasonable trier of fact to
find a connection between a defendant’s possession of a weapon
and a drug trafficking crime. Id. These include: “the type of
drug activity that is being conducted, accessibility of the
firearm, the type of weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the
gun is loaded, proximity to drugs or drug profits, and the time
and circumstances under which the gun is found.” Id.
We find that the Government presented more than
sufficient evidence from which the jury could conclude beyond a
reasonable doubt that Christian was guilty of possessing the
firearm in question in furtherance of a drug trafficking crime.
Christian’s possession of the firearm was illegal, as he had
been previously convicted of a felony and was prohibited from
possessing it. In addition, the firearm was readily accessible,
found in the same car as 6.75 grams of cocaine base, and in
fact, appeared to have cocaine powder on it. Christian’s DNA
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was found on the gun and the jacket which had the drugs in it,
and at his arrest, Christian, a convicted and admitted drug
dealer, had $4402 on him. Also found in the car, which was
parked in a high crime and high drug area, were baggies and two
digital scales. Finally, an expert on drug trafficking
testified that street-level drug traffickers (of which Christian
was one) commonly use handguns (the type of gun in this case) to
enhance their reputation, intimidate the competition, and for
retaliatory violence. From these facts, there was sufficient
proof for the jury to conclude beyond a reasonable doubt that
Christian used the firearm to protect his cocaine supply and
drug proceeds.
IV.
Finally, Christian asserts that the district court
erred by failing to sentence him under the newly enacted Fair
Sentencing Act (“FSA”). The district court determined that,
since Christian committed his crimes prior to enactment, the FSA
did not apply to him. However, we have not yet addressed the
FSA’s applicability to convictions involving pre-enactment
conduct, but post-enactment sentencing. See United States v.
Bullard, 645 F.3d 237, 248 n.5 (4th Cir.) (reserving judgment on
the question “whether the FSA could be found to apply to
defendants whose offenses were committed before August 3, 2010,
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but who have not yet been sentenced”), cert. denied, 2011 WL
4536465 (U.S. Oct. 3, 2011). Nonetheless, error in failing to
apply the FSA was harmless, and both parties agree with this
conclusion. 3 Specifically, Christian’s drug conviction (the only
one affected by the FSA) is being run concurrently with his
felon in possession conviction. Thus, a reduced sentence on the
drug charge would not affect the length of time Christian will
spend in prison. Regardless of what sentence he receives on the
drug count, Christian will be required to serve his forty-year
mandatory minimum sentence on the firearm charges. As such, his
substantial rights were not affected by any FSA error, and there
is no basis for remand. See United States v. Ellis, 326 F.3d
593, 599-600 (4th Cir. 2003) (holding that sentence on
concurrent count that was above the applicable statutory maximum
did not affect the defendant’s substantial rights because he
received a life sentence on another count).
Based on the foregoing, we affirm Christian’s
convictions, revocation of supervised release, and sentences.
We dispense with oral argument because the facts and legal
3
Christian states that he raises the issue because, if his
firearm convictions are reversed, the FSA would affect his final
sentence.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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