United States v. Greenwood

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 95-5472
DARRYL GREENWOOD, a/k/a Darryl
Robert Greenwood, a/k/a Dee,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-258)

Argued: June 7, 1996

Decided: July 10, 1996

Before WILKINSON, Chief Judge, and HAMILTON and LUTTIG,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ernest Raymond Alexander, Jr., ALEXANDER, PFAFF
& ELMORE, Greensboro, North Carolina, for Appellant. Robert
Michael Hamilton, OFFICE OF THE UNITED STATES ATTOR-
NEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter
C. Holton, Jr., United States Attorney, David B. Smith, Assistant
United States Attorney/Senior Litigation Counsel, Timika Shafeek,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this appeal, the appellant, Darryl Greenwood, challenges his
convictions for: (1) conspiracy to possess with intent to distribute and
to distribute cocaine base (crack), see 21 U.S.C. §§ 841(a)(1) and
846; (2) possession of crack with intent to distribute, see 21 U.S.C.
§ 841(a)(1); and (3) using a firearm during and in relation to a drug
trafficking crime, see 18 U.S.C. § 924(c)(1). Greenwood also chal-
lenges his sentence. For the reasons that follow, we affirm.

I

This case involves a garden-variety drug conspiracy. Through the
use of drug couriers, Greenwood arranged for the delivery of crack
from New York to Greensboro, North Carolina. From August 1994
until November 8, 1994, Eric and Larry Carter received weekly quan-
tities of crack from Greenwood for distribution in Greensboro. Gener-
ally, Greenwood would front crack to Eric Carter, who would in turn
give one-half of the crack to Larry Carter. The Carters would then sell
the crack, and Eric Carter would pay Greenwood for the fronted
crack. However, on several occasions, Larry Carter purchased crack
directly from Greenwood.

On November 8, 1994, Larry Carter was arrested at April
McClurkin's apartment. During a consensual search of McClurkin's
apartment, the police recovered over 400 grams of crack and other
evidence of drug trafficking. At trial, the government established that
this crack was supplied by Greenwood.

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During the course of the conspiracy, Eric Carter delivered $35,000
in drug proceeds to Greenwood. Greenwood was subsequently robbed
of these drug proceeds, and Greenwood suspected that Patrick Hol-
lingsworth had set him up to be robbed. Following the robbery,
Greenwood was observed pointing a firearm at Hollingsworth in an
effort to collect the money Greenwood suspected Hollingsworth had
stolen. At gun point, Hollingsworth turned over between $2,000 and
$2,500 to Greenwood.

On December 19, 1994, Greenwood and the Carters were charged
in a superseding indictment with conspiracy to possess with intent to
distribute and to distribute crack, see 21 U.S.C. §§ 841(a)(1) and 846.
On the basis of the crack recovered at McClurkin's apartment, Green-
wood and the Carters were also charged with possession of crack with
intent to distribute, see 21 U.S.C. § 841(a)(1). Finally, as a result of
Greenwood's use of the firearm during and in relation to the conspir-
acy, Greenwood was charged with using a firearm during and in rela-
tion to a drug trafficking crime, see 18 U.S.C. § 924(c)(1).

The Carters entered into plea agreements with the government and
testified at Greenwood's jury trial. The jury convicted Greenwood of
all three counts contained in the superseding indictment. The district
court sentenced Greenwood to 252 months' imprisonment on the con-
spiracy and possession counts and to a consecutive sixty months'
imprisonment on the firearm count. Greenwood noted a timely
appeal.

II

On appeal, Greenwood raises numerous assignments of error, only
a few of which merit discussion.

A

Greenwood challenges the sufficiency of the evidence to support
his conspiracy conviction. This argument has no merit.

It is well settled that in order to prove a conspiracy, the government
must prove: "(1) an agreement between two or more persons (not

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including government agents), (2) to commit in concert an unlawful
act." United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991). In
assessing whether the government has established the necessary
agreement, we look to the totality of the circumstances. United States
v. Bell, 954 F.2d 232, 236 (4th Cir. 1992), cert. denied, 114 S. Ct. 112
(1993). The government need not show that the defendant knew all
the conspirators, had knowledge of all the details of the conspiracy,
or that he had a major role in the conspiracy. United States v. Brooks,
957 F.2d 1138, 1147 (4th Cir.), cert. denied, 112 S. Ct. 3051 (1992).
In a drug conspiracy, the government is not required to prove the
commission of an overt act in furtherance of the conspiracy. United
States v. Mabry, 953 F.2d 127, 130 (4th Cir. 1991), cert. denied, 112
S. Ct. 1951 (1992). Because conspiracies are intrinsically secretive,
the government may prove its case by circumstantial, as well as
direct, evidence. Giunta, 925 F.2d at 764; United States v. Brown, 856
F.2d 710, 711-12 (4th Cir. 1988). "More than mere association with
bad people who are committing crimes is required for a conspiracy
conviction." Bell, 954 F.2d at 237. Once the government establishes
the existence of a conspiracy, "the evidence need only establish a
slight connection between the defendant and the conspiracy to support
conviction." Brooks, 957 F.2d at 1147.

In this case, the evidence showed that a conspiracy existed, that
Greenwood knew of it, and that he voluntarily became part of it. The
government's evidence established that Greenwood fronted crack to
the Carters, the Carters then sold the crack, and Eric Carter paid
Greenwood for the fronted crack. This evidence was more than suffi-
cient to support Greenwood's conspiracy conviction.

B

Greenwood also challenges the sufficiency of the evidence to sup-
port his conviction for possession of crack with intent to distribute.
The government responds to Greenwood's argument by asserting that
the conviction should be sustained under the Pinkerton doctrine. See
Pinkerton v. United States, 328 U.S. 640 (1946). Under the Pinkerton
doctrine, Greenwood is liable for actions of his coconspirators that are
in furtherance of the conspiracy and reasonably foreseeable. Id. at
647-48.

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To sustain Greenwood's conviction, the government had to show
that he knowingly and intentionally possessed the crack with the
intent to distribute it. United States v. Nelson , 6 F.3d 1049, 1053 (4th
Cir. 1993), cert. denied, 114 S. Ct. 2142 (1994). "Possession may be
actual or constructive." United States v. Morrison, 991 F.2d 112, 114
(4th Cir.), cert. denied, 114 S. Ct. 225 (1993). "Constructive posses-
sion exists when the defendant exercises, or has power to exercise,
dominion or control over the item." United States v. Zandi, 769 F.2d
229, 234 (4th Cir. 1985). "To establish constructive possession, the
government must produce evidence showing ownership, dominion, or
control over the contraband itself or the premises or vehicle in which
the contraband is concealed." United States v. Blue, 957 F.2d 106,
109 (4th Cir. 1992).

For purposes of determining the sufficiency of evidence for con-
spiratorial liability under Pinkerton, the government must establish:
(1) the substantive offense was committed pursuant to the conspiracy;
(2) the defendant was a member of the conspiracy at the time the sub-
stantive offense was committed; and (3) the commission of the sub-
stantive offense was reasonably foreseeable in furtherance of the
conspiracy. Pinkerton, 328 U.S. at 646-48; see also United States v.
Irvin, 2 F.3d 72, 75 (4th Cir. 1993), cert. denied, 114 S. Ct. 1086
(1994). All conspirators are liable for reasonably foreseeable crimes
committed by any member of the conspiracy in furtherance thereof.
Pinkerton, 328 U.S. at 646-48; United States v. McManus, 23 F.3d
878, 883 (4th Cir. 1994).

The evidence, viewed in the light most favorable to the govern-
ment, see Glasser v. United States, 315 U.S. 60, 80 (1942), supports
Greenwood's conviction for possession of crack with intent to distrib-
ute. Greenwood's conviction arose out of the November 8, 1994
arrest of Larry Carter at McClurkin's apartment in which the police
seized over 400 grams of crack. The evidence showed that: (1) Larry
Carter possessed and/or constructively possessed the crack seized at
McClurkin's apartment; (2) Greenwood supplied the crack seized; (3)
at the time of the seizure, Greenwood was still arranging for the deliv-
ery of crack to Greensboro for distribution pursuant to the overall
conspiracy alleged in the conspiracy count; (4) Greenwood and the
Carters were members of the conspiracy at this time; and (5) the com-
mission of this offense was reasonably foreseeable to Greenwood,

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who had arranged for delivery of the crack and who had participated
in drug transactions with the Carters. In short, this evidence was more
than sufficient to support Greenwood's conviction.

C

Greenwood also challenges the sufficiency of the evidence of his
conviction for using a firearm during and in relation to a drug traffick-
ing offense, see 18 U.S.C. § 924(c)(1).

In Bailey v. United States, the Supreme Court held that the word
"use" as contained in § 924(c) "denotes active employment." 116 S.
Ct. 501, 509 (1995). Examples of "use" cited by the Court include
"brandishing, displaying, bartering, striking with, and most obviously,
firing or attempting to fire, a firearm." Id. at 508. An example falling
outside the definition of "use" cited by the Court is storage of a fire-
arm. Id.

The government's evidence at trial established that Greenwood
asked Eric Carter to deliver the Tech-9 firearm to him after he was
robbed of $35,000 in drug proceeds. Thereafter, Eric Carter saw
Greenwood pointing the Tech-9 at Patrick Hollingsworth, whom
Greenwood believed set him up to be robbed. After Hollingsworth
had the gun pointed at him, he gave Greenwood $2,000-$2,500.

Under Bailey, Greenwood's pointing of the gun at Hollingsworth
in an effort to collect the $35,000 in drug proceeds Greenwood sus-
pected Hollingsworth had participated in stealing clearly constituted
use of a firearm during and in relation to the drug conspiracy. The
Tech-9 firearm was used while the conspiracy was ongoing, and
Greenwood was clearly using the firearm in an attempt to collect
stolen drug proceeds and to defend against future acts of violence
against the drug operation. Cf. United States v. Cook, 76 F.3d 596,
603 (4th Cir. 1996) (noting that pointing a gun at a purchaser during
a drug transaction constitutes "use" of a firearm under Bailey).
Accordingly, Greenwood's attack on his § 924(c)(1) conviction has
no merit.

D

Greenwood also argues that because crack describes no other sub-
stance than cocaine and since it is impossible to differentiate between

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the substances, the district court should have applied the rule of lenity
to compensate for the ambiguity. Greenwood relies heavily on United
States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994), in support of his
contention. We have, however, explicitly rejected the reasoning of
Davis and held that a purposeful distinction was made in 21 U.S.C.
§ 841 between cocaine and crack, making the statute unambiguous
and the rule of lenity inapplicable. See United States v. Fisher, 58
F.3d 96, 98-99 (4th Cir.), cert. denied, 116 S. Ct. 329 (1995). There-
fore, we hold that the district court correctly applied the stricter penal-
ties for crack offenses to Greenwood's case.

III

Greenwood also challenges the propriety of his arrest. We have
reviewed this assignment of error and find it without merit. Accord-
ingly, for the reasons stated herein, the judgment of the district court
is affirmed.

AFFIRMED

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