UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4494

DARREN LAMONT NORFLEET,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-97-37-MU)

Submitted: February 16, 1999

Decided: March 22, 1999

Before WILKINS, TRAXLER, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Eric A. Bach, Charlotte, North Carolina, for Appellant. Robert J. Hig-
don, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Darren Lamont Norfleet was convicted by a jury of conspiring to
possess with intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994), and was sentenced to 120 months' impris-
onment. On appeal, Norfleet alleges that the district court erred in
denying his motion for a judgment of acquittal at the close of the
Government's evidence. He further maintains that the court erred in
denying him relief under the "safety valve" provision of 18 U.S.C.
§ 3553(f). Finding no error, we affirm.

The evidence at trial disclosed that on February 13, 1997, Trooper
Cardwell of the North Carolina Highway Patrol stopped the vehicle
in which Norfleet was a passenger after observing that the driver was
speeding. The vehicle bore a personalized Virginia license tag. Card-
well approached the vehicle from the passenger side and tapped on
the window. From the passenger side window, Cardwell asked the
driver, Starlene Patterson, to produce a driver's license. She com-
plied, producing a Virginia license and registration. Later, while sit-
ting in Cardwell's vehicle, Patterson became noticeably nervous.
Upon questioning, Patterson stated that she had been visiting her aunt
for a couple of days in Charlotte, North Carolina. Although she first
maintained that the passenger was her brother, she later claimed the
passenger was a friend. After denying possessing any narcotics,
weapons, or stolen items in her vehicle, Patterson consented in writ-
ing to the search of the vehicle.

Cardwell proceeded to question Norfleet. Norfleet provided Card-
well with a Virginia driver's license and stated that he was Patterson's
friend. He maintained that he traveled with Patterson to North Caro-
lina to visit her aunt for a couple of hours. At this time, Cardwell
informed Norfleet that Patterson had consented to the search of the
vehicle. Upon conducting a search of the vehicle, Cardwell found a
stereo "boom box" in the rear cargo area. Upon closer inspection of
the speakers, Cardwell found gray duct tape packages which further
investigation revealed to contain marijuana and cocaine. In light of
Cardwell's findings, he placed Norfleet under arrest.

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After receiving his Miranda rights, Norfleet told Cardwell that he
and Patterson drove from Norfolk, Virginia, to New York, and then
returned with a couple of friends to Norfolk. They then returned again
to New York, and left after a couple of hours, towards Charlotte.
According to Norfleet, before they left Charlotte, Patterson's nephew
placed two duffle bags in the vehicle.

Cardwell turned the investigation over to Drug Enforcement
Administration agent David Dongilli. Again, Norfleet was informed
of his Miranda rights. Norfleet told Dongilli that he and Patterson
were friends. While staying with her, Patterson's nephew, known as
"Little Man," called Patterson and asked her to drive to New York
City. Patterson asked Norfleet to accompany him, and he agreed. Nor-
fleet maintained that they traveled in two vans, one driven by Patter-
son, and the other by Little Man. After arriving in New York, Little
Man became angry, complaining that he left money behind in Nor-
folk. In light of this, Little Man, Patterson, and Norfleet returned to
Norfolk. Upon their return, Norfleet learned that the amount of money
Little Man was missing was $28,000. When Little Man could not find
the money in Norfolk, he called his contact in New York, who then
found the cash in Little Man's van. The three returned to New York
the next day.

According to Norfleet, he and Patterson shopped for several hours
in New York and then met Little Man. Little Man placed a stereo
boom box in Patterson's vehicle and placed another similar box in his
own van. The three then proceeded to North Carolina. Norfleet and
Patterson took turns driving the van. In North Carolina, the group
went to a house where they unloaded the stereo boxes from their
respective vans and placed them in the house. Thereafter, Little Man
and Patterson returned one of the stereo boxes to Patterson's van.
Norfleet and Patterson then proceeded to Virginia. During the course
of this trip they were stopped by Cardwell. During his conversation
with Dongilli, Norfleet denied knowledge of the drugs initially, but
said that after Little Man stated that he lost $28,000, "he realized what
was going on."

A jury convicted Norfleet of conspiracy to possess with intent to
distribute cocaine base. The court sentenced Norfleet to 120 months'
imprisonment. Norfleet filed a timely notice of appeal.

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On appeal, Norfleet alleges that the court erred in denying his
motion for judgment of acquittal at the close of the Government's evi-
dence. Norfleet initially maintains that the Government failed to
prove that he knowingly and willfully joined the conspiracy. Norfleet
further claims that the Government failed to prove that he construc-
tively possessed the cocaine base. We address each claim in turn.

A denial of a Fed. R. Crim. P. 29 motion for acquittal is reviewed
under a sufficiency of the evidence standard. See United States v.
Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992)."To sustain a conviction
the evidence, when viewed in the light most favorable to the govern-
ment, must be sufficient for a rational trier of fact to have found the
essential elements of the crime beyond a reasonable doubt." See
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see
Glasser v. United States, 315 U.S. 60, 80 (1942). The Government is
entitled to all reasonable inferences from the facts established to those
sought to be established. See United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982).

To prove a drug conspiracy, the prosecution must show that: "(1)
an agreement to possess [the drugs] with intent to distribute existed
between two or more persons; (2) the defendant knew of the conspir-
acy; and (3) the defendant knowingly and voluntarily became a part
of this conspiracy." See United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (en banc), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3586 (U.S. Feb. 24, 1997) (No. 96-6868). Each defendant need not
know the details of the conspiracy's structure and organization or the
identities of every conspirator. See id. at 858. The Government may
prove that a conspiracy existed by circumstantial evidence; it need
not, and normally will not, be proved by direct evidence. See id. at
857. A jury may find knowledgeable, voluntary participation from
presence when presence is such that it would be unreasonable for any-
one other than a knowledgeable participant to be present. See United
States v. Mosquera, 779 F.2d 628, 629-30 (11th Cir. 1986). Once the
existence of a conspiracy is established, only a slight link between a
defendant and the conspiracy is needed to support a conviction. See
Brooks, 957 F.2d at 1147.

We find that there was sufficient evidence to support the jury's
finding that Norfleet's participation was knowing and voluntary. The

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evidence at trial disclosed that there was a conspiracy to transport
cocaine base between New York and North Carolina for the purpose
of distribution. By his own admission, Norfleet stated that he was
aware of the drug conspiracy when he returned to Norfolk with Little
Man and was told that Little Man was missing $28,000. After learn-
ing of the conspiracy, Norfleet continued to travel with Patterson to
New York and then to North Carolina, sharing in the driving. While
we agree that Norfleet's role was minimal, we find sufficient evi-
dence to support the jury's finding that Norfleet's participation in the
conspiracy was knowing and voluntary.

We next address Norfleet's argument that the Government failed to
prove that he constructively possessed the cocaine base. "Constructive
possession exists when the defendant exercises, or has the power to
exercise, dominion and control over the item[,]" see United States v.
Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980), and has knowledge
of the item's presence. See United States v. Zandi, 769 F.2d 229, 235
(4th Cir. 1985). Both of these components may be established by cir-
cumstantial evidence. See id.

Again, Norfleet admitted that he was aware of the illegal drug
activities when he, Patterson, and Little Man returned to Norfolk. It
was after he agreed to accompany them back to New York, that the
drugs were placed in the vans. Even after learning of the group's ille-
gal activity, he continued to take turns driving one of the vans carry-
ing packages of cocaine. Under these circumstances, we find
sufficient evidence that the illegal drugs were in Norfleet's construc-
tive possession.

For the reasons stated above, we reject Norfleet's argument that
there was insufficient evidence to show that his participation was
knowing and voluntary and that he constructively possessed the
cocaine base. Accordingly, we find no error in the district court's
denial of his motion for judgment of acquittal.

Norfleet's last argument is that the district court erred in failing to
grant him relief under the "safety valve" provision, see 18 U.S.C.A.
§ 3553(f) (West Supp. 1998); United States Sentencing Guidelines
Manual § 5C1.2 (Nov. 1997), given his alleged cooperation with the
Government at the time of his arrest and before sentencing. A defen-

                     5
dant has the burden of proving that he qualifies for application of the
"safety valve" provision. See United States v. Beltran-Ortiz, 91 F.3d
665, 669 (4th Cir. 1996). The district court's determination of
whether Norfleet fulfilled the requirements of § 3553(f) is a question
of fact reviewed for clear error. See United States v. Romo, 81 F.3d
84, 86 (8th Cir. 1996); United States v. Rodriguez, 69 F.3d 136, 144
(7th Cir. 1995).

Under the "safety valve" provision of 18 U.S.C.A. § 3553(f) and
USSG § 5C1.2, for certain offenses a district court shall impose a sen-
tence in accordance with the guidelines, without regard to the statu-
tory minimum, if the court determines that the defendant meets five
criteria. One criterion is that the defendant, by the time of sentencing,
truthfully provide the Government with all information about the
instant offense. See 18 U.S.C.A. § 3553(f)(5); USSG § 5C1.2(5).

We find that the district court did not clearly err in finding that
Norfleet had not met his burden of proving by a preponderance of the
evidence that he truthfully provided the Government with all the
information and evidence he had regarding his crime. See United
States v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996). Although Norfleet
made a confession at the time of his arrest, he subsequently ceased
cooperation with the Government. After conviction he offered infor-
mation to the Government of which he previously denied knowledge.
Under these circumstances we find no clear error in the district
court's refusal to apply the "safety valve" provision.

Accordingly, we affirm Norfleet's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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