                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5158


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DAVID CHARLES SPERLING,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00419-JAB-1)


Argued:   September 22, 2010             Decided:   November 9, 2010


Before NIEMEYER and DUNCAN, Circuit Judges, and Robert J.
CONRAD, Jr., Chief United States District Judge for the Western
District of North Carolina, sitting by designation.


Reversed and remanded by unpublished opinion.  Judge Duncan
wrote the opinion, in which Judge Niemeyer and Judge Conrad
joined.


ARGUED: David Bernard Smith, Greensboro, North Carolina, for
Appellant. Terry Michael Meinecke, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.  ON BRIEF:
Anna Mills Wagoner, United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

      This    appeal    arises   from      a    conviction    on        one    count    of

possession of a firearm by a person who is an unlawful user of

or addicted to a controlled substance, 18 U.S.C. § 922(g)(3).

Appellant David Sperling challenges the district court’s denial

of his motion for acquittal, claiming there was insufficient

evidence to support the jury’s verdict.                    For the reasons that

follow, we reverse the judgment of the district court and vacate

Sperling’s conviction.



                                         I.

      On October 16, 2008, a police officer observed Sperling

driving fifteen miles below the speed limit while drifting in

and out of his lane on Interstate 85, near Thomasville, North

Carolina. 1        The officer stopped Sperling’s vehicle, approached

it, and noticed an assault rifle behind the passenger seat.                            The

officer asked Sperling if there were any more firearms in the

vehicle,     and    Sperling   replied     that    there    was     a    9    millimeter

pistol in the glovebox.          After obtaining Sperling’s consent to

search the vehicle, the officer recovered both the assault rifle

and   the     pistol,    as    well   as       several     loaded       magazines       of


      1
       Since Sperling appeals from a jury’s guilty verdict, “we
recite the facts in the light most favorable to the government.”
United States v. Kelly, 510 F.3d 433, 435 n.1 (4th Cir. 2007).


                                         2
ammunition.      He then arrested Sperling for carrying a concealed

weapon.     Sperling did not appear impaired at the time of his

arrest,    and   the   record    does    not   reflect     that   the   arresting

officer    detected    any     odors    of   controlled    substances     in   his

vehicle.

     The     officer    took     Sperling      to    the   Thomasville    police

department.      After receiving Miranda warnings and stating that

he was prepared to answer questions, Sperling was interviewed

for about four-and-a-half hours by four state and federal law

enforcement officers.        During this interview, Sperling confirmed

that he owned the weapons and ammunition that had been found in

his vehicle.      In response to initial queries from the officers,

Sperling also reported that he had once had a drug problem but

had not used drugs for many years.                  Upon further questioning,

Sperling altered his story, admitting to the officers that he

had used both marijuana and cocaine within a couple months of

his arrest.      Sperling also acknowledged at some point that he

had tried to stop using drugs but “continued to use them on and

off.”     J.A. 132.

     While Sperling was in police custody, his vehicle was towed

to an impound lot.       Shortly after the vehicle reached the lot, a

certified police K-9 handler conducted a canine search of the

vehicle.     The police dog alerted at three different sites on the

vehicle’s exterior.          Once allowed inside the vehicle, the dog

                                         3
alerted “very aggressively” at the center console.                      J.A. 63.

The officer searched the vehicle’s interior but did not find any

controlled substances.

     In October 2008, a grand jury indicted Sperling in a one-

count indictment alleging a violation of 18 U.S.C. § 922(g)(3). 2

A jury trial began on January 12, 2009.                 During the two-day

trial,   the    government    presented     testimony   and   other     evidence

regarding      Sperling’s    arrest   and   statements,    as    well    as   the

canine search of defendant’s vehicle.              The federal agent who

advised Sperling of his Miranda rights testified that he found

no criminal or medical record of Sperling’s drug use or evidence

of drug addiction.      Another federal agent testified that he had

spoken to Sperling’s parents, who confirmed that Sperling had

undergone drug treatment as a teenager.

     At the close of the government’s evidence, Sperling moved

for acquittal on the charge against him for want of sufficient

evidence, pursuant to Federal Rule of Criminal Procedure 29.                   He

argued that the government had failed to offer any evidence,

other than his uncorroborated statements, to show that his drug

use had been “consistent [and] prolonged or . . . close to the

time of the [firearm] possession.”             J.A. 169.        The government

     2
       Section 922(g) provides, in pertinent part, that “[i]t
shall be unlawful for any person . . . (3) who is an unlawful
user of or addicted to any controlled substance . . . to . . .
possess . . . any firearm.”


                                       4
countered by asserting that Sperling’s incriminating statements

reflected      a        consistent     pattern       of   drug     use,       which   was

corroborated by the canine alert.                     The district court denied

Sperling’s motion.

     On January 13, 2009, the jury rendered a guilty verdict.

Sperling renewed his Rule 29 motion, which was again denied.                          On

October 20, 2009, the district court denied a third motion to

acquit and sentenced Sperling to fifteen months’ imprisonment

and two years of supervised release.                  This appeal followed.



                                             II.

     On appeal, Sperling’s sole argument is that the district

court erred by denying his Rule 29 motions, because the evidence

against him was insufficient.                     As a defendant challenging the

sufficiency        of    the   evidence,     Sperling     bears     a   heavy    burden.

United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010).                            We

must affirm his conviction if we find it to be supported by

substantial        evidence,        that   is,     “evidence     that   a     reasonable

finder    of   fact       could     accept    as    adequate     and    sufficient    to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”     Id.         Put otherwise, we must assess “whether, ‘viewing

the evidence and the reasonable inferences to be drawn therefrom

in the light most favorable to the [g]overnment, . . . the

evidence       adduced         at    trial        could   support       any     rational

                                              5
determination           of   guilty     beyond      a     reasonable     doubt.’”       Id.

(quoting United States v. Burgos, 94 F.3d 849, 863 (4th Cir.

1996) (en banc)).

       Section 922(g)(3) criminalizes the possession of a firearm

by a person “who is an unlawful user of or addicted to any

controlled substance.”                To sustain a conviction, the government

must       prove   that      the    defendant’s          drug    use   was   “sufficiently

consistent, ‘prolonged,’ and close in time to his gun possession

to put him on notice that he qualified as an unlawful user”

under the terms of the statute.                         United States v. Purdy, 264

F.3d 809, 812 (9th Cir. 2001). 3               The government contends that the

jury’s determination that the government had carried its burden

was    “supported            by     substantial          and     significant     evidence,

including,         but       not     limited       to,     the     defendant’s      various

admissions         to    the       investigating         law    enforcement     officers.”

Appellee’s Br. at 8.               We disagree.

       “‘[I]t      is    a    settled    principle         of    the   administration    of

criminal justice in the federal courts that a conviction must

       3
       We have previously recognized § 922(g)(3)’s ambiguity with
regard to how close in time a defendant’s drug use must be to
the defendant’s firearm possession in order to constitute a
violation. See United States v. Jackson, 280 F.3d 403, 406 (4th
Cir. 2002) (“[T]he exact reach of [§ 922(g)(3)] is not easy to
define. . . .”).     Here, neither party disputes the district
court’s instructions on the timing of Sperling’s drug use.     We
therefore apply the framework articulated by the district court,
which reflects the Ninth Circuit’s persuasive conclusion in
Purdy.


                                               6
rest upon firmer ground than the uncorroborated admission or

confession of the accused’ made after commission of a crime.”

United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008)

(quoting     Wong   Sun   v.    United    States,     371   U.S.    471,   488-89

(1963)).      Although corroborative evidence need not “prove the

offense beyond a reasonable doubt, or even by a preponderance,”

it must “support[] the essential facts admitted sufficiently to

justify a jury inference of their truth.”               Id. at 235; see also

United States v. Stephens, 482 F.3d 669, 672 (4th Cir. 2007).                    A

verdict may rely on an admission or confession, but only if

“there is substantial independent evidence that the offense has

been committed, and the evidence as a whole proves beyond a

reasonable doubt that [the] defendant is guilty.”                   Abu Ali, 528

F.3d at 235 (alteration in original) (quoting Smith v. United

States, 348 U.S. 147, 156 (1954)).            Thus, the question before us

is   not,   as   the   government    would    have    it,   whether    there   was

sufficient       evidence      to    convict         “including”      Sperling’s

admissions,      but    whether     there     was     sufficient      independent

evidence    to   corroborate      those   admissions.       We     conclude    that

there was not.

      The government identifies only two pieces of potentially

corroborative       evidence:            Sperling’s     parents’       statements

regarding his teenage drug use and the canine alerts.                      Neither

one provided independent evidence that Sperling was an unlawful

                                          7
drug user within the meaning of § 922(g)(3). 4                       The former shows

only that Sperling--who was twenty-nine when he was arrested--

had   used    controlled   substances           a   decade    or     more   before   the

charged offense.        Indeed, the agent who spoke with Sperling’s

parents explicitly testified that he was unable to corroborate

any more recent drug use.

      The government’s reliance on the police dog is similarly

unavailing.        At   most,    the    canine’s        alerts       corroborate     the

presence of drugs in Sperling’s car at some point prior to his

arrest.      But even if a canine alert that did not result in the

discovery     of   a    controlled      substance            could     corroborate    a

defendant’s     confession      of   drug       possession--and       the   government

has offered no caselaw that suggests it could--the police dog’s

response is quite irrelevant to the issue of drug use.

      The government has cited no other independent evidence to

corroborate Sperling’s confession.                  We therefore hold that there

was insufficient evidence supporting Sperling’s conviction and

vacate the conviction and sentence.




      4
       At oral argument, the government claimed for the first
time that the evidence was sufficient to support a jury’s
conclusion that Sperling was a drug addict. As the argument was
not raised in the government’s opening brief, we find it waived.
United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002).
In any event, the government’s claim is unsupported by the
record.


                                            8
                              III.

     For the foregoing reasons we reverse the district court’s

denial of Sperling’s motion for acquittal, vacate his conviction

and sentence, and remand for further proceedings consistent with

this opinion.

                                           REVERSED AND REMANDED




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