United States v. Shannon Smith

591 F. App'x 248
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 4, 2014
Docket13-51015
StatusUnpublished

This text of 591 F. App'x 248 (United States v. Shannon Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shannon Smith, 591 F. App'x 248 (5th Cir. 2014).

Opinion

PER CURIAM: *

Shannon Smith (“Smith”) challenges the - sufficiency of the evidence which led to his conviction, after a jury trial, of aiding and abetting possession with intent to distribute more than 50 grams of crack cocaine (count one) and possession of a firearm in furtherance of a drug-trafficking crime (count two). 1 We affirm.

I.

On October 23, 2008, the Odessa, Texas Police Department (“OPD”) set up a controlled buy using a confidential informant (“Cl”). At the officers’ direction, the Cl called his supplier, Randell McKoy (“McKoy”), and arranged to meet him at a local restaurant to purchase crack cocaine. McKoy agreed to sell three ounces of cocaine to the Cl for $2500. .

About an hour after the meeting was arranged, McKoy called the Cl and told him he was outside of the restaurant in a gray Lincoln pickup truck. OPD officers that were in the area drove to the restaurant parking lot in an unmarked police vehicle. The officers located an unoccupied gray Lincoln pickup truck. One of the officers got out of the vehicle and observed two males, later identified as Appellant, Smith, and McKoy, walking toward her. The officer heard one male say to the other, “He is on his way.” The officer continued watching the men until they entered a nail salon. When McKoy exited the nail salon police detained him. Immediately after, officers entered the nail salon and detained Smith.

Once McKoy and Smith were detained the officers directed them to sit on the ground. While McKoy was seated, an OPD officer noticed him making unusual movements. The officer ordered McKoy to stand. When McKoy stood, OPD officers observed a “very obvious” bulge in McKoy’s waistband. The officers retrieved 105.69 grams of crack cocaine. Officers also searched Smith. They found in Smith’s pants a bundle of cash amounting to $850 in one of his pockets and a bundle containing $910 in his other pocket.

*250 OPD officers also searched the gray Lincoln pickup truck and found a loaded .45 caliber handgun between the center console and the driver’s seat. A magazine with 13 rounds of ammunition was in place ' in the weapon. Smith initially stated that he was unaware of the handgun in the truck, that it did not belong to him, and that it belonged to his aunt. However, during a later search of Smith’s home, officers found a box of .45 caliber ammunition, a case for a Springfield Armory .45 caliber handgun with a serial number that matched the handgun found in the vehicle, ballistic body armor, and a car-repair bill belonging to McKoy.

At trial, Smith testified and admitted that he owned the handgun, he knew the handgun was in his pickup truck, and he knew the firearm had bullets in the magazine. Smith also admitted, and the parties stipulated, that Smith had a prior felony conviction for trafficking cocaine. An OPD supervisor told the jury that in her experience as a narcotics officer it was common for officers to find firearms on persons arrested for drug-trafficking offenses. She also testified that drug traffickers ' cany firearms to protect themselves, their narcotics, and their money. An FBI Agent also testified and explained that drug traffickers use firearms for protection and that he has previously recovered bullet-resistant vests from drug traffickers. An OPD detective told the jury that each bundle of cash found in Smith’s pockets approximated the price of one ounce of cocaine ($850), indicating that Smith and McKoy had engaged in other drug transactions that day.

The jury convicted Smith of aiding and abetting possession with intent to distribute more than 50 grams of crack cocaine (count 1), possession of a firearm in furtherance of a drug-trafficking crime (count 2), and being a felon in possession of a firearm (count 3).

In Smith’s first appeal to this Court, he challenged the sufficiency of the evidence on counts one and two. We affirmed his conviction. We concluded that Smith’s counsel incorrectly believed that Smith was charged with conspiracy and failed to challenge Smith’s actual conviction of aiding and abetting; thus, Smith had waived the sufficiency argument on that offense. We also concluded that there was sufficient evidence to support a conviction of firearm possession in furtherance of a drug trafficking offense.

Smith moved for an out-of-time appeal under 28 U.S.C. § 2255 in the district court. Smith argued, among other things, that his appellate counsel was ineffective for waiving any challenge to count one. The district court granted Smith’s motion for a new appeal because of his appellate counsel’s deficient performance. Smith timely filed this appeal challenging the sufficiency of the evidence to convict him on coimts one and two.

II.

Because Smith moved for a judgment of acquittal at the close of the government’s case and at the close of the evidence, we review the sufficiency of the evidence de novo 2 “We will affirm the district court ‘if a reasonable trier of fact could conclude [that] the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.’ ” 3

*251 ii.

A. Count One: Aiding and Abetting Possession with Intent to Distribute

In order to convict Smith of possession with the intent to distribute, the government was required to prove beyond a reasonable doubt that the defendant “(1) knowingly (2) possessed [cocaine] (3) with the intent to distribute it.” 4 “To sustain a conviction for aiding and abetting under 18 U.S.C. § 2, the government must show that a defendant associated with a criminal venture, purposefully participated in the criminal activity, and sought by his or her actions to make the venture succeed.” 5 Stated another way, to aid and abet means to “assist the perpetrator of a crime with some affirmative act designed to aid the venture, while sharing the criminal intent.” 6

Smith argues that no reasonable jury could have convicted him of aiding and abetting possession of drugs because the evidence at trial failed to establish that he knew a drug transaction was occurring. He argues that the government was only able to prove he was at the location at the time that his friend was engaging in drug-related activities.

Our review of the record persuades us that the evidence supports a finding that Smith aided and abetted in the possession of the cocaine with the intent to distribute. Smith drove his own vehicle to transport McKoy to the location where the drug transaction was scheduled to occur. Smith had in his vehicle a loaded handgun commonly carried by drug dealers to protect their drugs and cash.

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Bluebook (online)
591 F. App'x 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shannon-smith-ca5-2014.