UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 94-5847

VICTOR RENTERIA-CAICEDO,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 94-5868

FRANKLYN GARCIA,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-94-130)

Submitted: February 13, 1996

Decided: May 28, 1996

Before WIDENER and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina; Robert I.
O'Hale, MCNAIRY, CLIFFORD & CLENDENIN, Greensboro,
North Carolina, for Appellants. Walter C. Holton, Jr., United States
Attorney, Robert M. Hamilton, Assistant United States Attorney,
Douglas Cannon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Victor Renteria-Caicedo and Franklyn Garcia appeal their convic-
tions for possession with intent to distribute cocaine base (crack) in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) (1988). Appellants
contend, through counsel, that Renteria-Caicedo's conviction was
unlawful in that it was not supported by sufficient evidence. And they
argue that the increased penalties imposed for a drug offense involv-
ing cocaine base as compared to cocaine are ambiguous and require
the application of the rule of lenity. The Appellants also proffered
several pro se claims: whether their criminal prosecution and civil for-
feiture proceeding amounted to a violation of the Double Jeopardy
Clause; whether the police officers' approach and stop of the Appel-
lants were supported by reliable information; whether Appellants'
statements and consent to search, given prior to any Miranda warn-
ings should have been suppressed during trial; whether the consent to
search was voluntarily given; and, whether the Appellants were
legally arrested. Finding no reversible error, we affirm.

The Appellants were arrested on the drug offense after police offi-
cers recovered approximately 1177 grams of crack cocaine from Gar-

                    2
cia's vehicle. The police officers approached the motel room, which
was registered to Renteria-Caicedo, after receiving a tip from a confi-
dential informant. Upon granting the officers permission to enter the
motel room, Renteria-Caicedo identified himself as Cristobal Rivera
and produced a New Jersey identification bearing that same name.
Garcia was also present in the room. The police officers told the
Appellants that they suspected them of dealing narcotics and
requested permission to search the room. Both Appellants consented
to the search of the motel room. The officers found approximately
$1000 in cash on Renteria-Caicedo in addition to a money wire
receipt showing that Cristobal Rivera sent $1500 to Armando Caicedo
in Texas. Garcia identified the vehicle outside the motel room as his
and consented to the officers' search of the vehicle. From the search
of the trunk, the police officers recovered two bags, screwdrivers, and
documents showing Garcia as the owner of the vehicle. In the bag that
Garcia claimed as his, the officers found some clothes and $3000 in
cash. Renteria-Caicedo's bag contained a current Colombian passport
identifying him as Victor Renteria-Caicedo. A drug-sniffing dog
alerted the police officers to the right front door panel of the car.
Using a screwdriver found in the trunk, the police officers removed
the panel and recovered plastic baggies containing the crack cocaine.

Following a jury trial, Garcia was fined and sentenced to serve 195
months imprisonment with five years supervised release. Renteria-
Caicedo was also fined and sentenced to serve 220 months imprison-
ment with five years supervised release.

In Renteria-Caicedo's sufficiency of the evidence claim, he asserts
that the Government failed to proved that he knowingly possessed the
crack cocaine found in Garcia's car or that he knowingly aided Garcia
in possessing the cocaine. A reviewing court must uphold a jury's
verdict "if, after viewing the evidence in the light most favorable to
the government, any rational trier of fact could have found the ele-
ments of the offense beyond a reasonable doubt." United States v.
United Medical & Surgical Supply Corp., 989 F.2d 1390, 1402 (4th
Cir. 1993); see Glasser v. United States, 315 U.S. 60, 80 (1942).
"[A]n appellate court's reversal of a conviction on grounds of insuffi-
cient evidence should be `confined to cases where the prosecution's
failure is clear.'" United States v. Jones , 735 F.2d 785, 791 (4th Cir.)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)), cert. denied,

                     3
469 U.S. 918 (1984). Circumstantial as well as direct evidence is con-
sidered, and the government is given the benefit of all reasonable
inferences from the facts proven to those sought to be established.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

Renteria-Caicedo was convicted of possession with intent to dis-
tribute cocaine base. The essential element of this offense is proof of
possession of the controlled substance both knowingly and intention-
ally with the intent to distribute. United States v. Crockett, 813 F.2d
1310, 1316 (4th Cir.), cert. denied, 484 U.S. 834 (1987). To establish
constructive possession, the government must show ownership,
dominion, or control over the drug or the premises or vehicle in which
the drugs were concealed. United States v. Nelson, 6 F.3d 1049, 1053
(4th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W. 3792 (U.S.
May 31, 1994) (No. 93-8210). A defendant's intent to distribute may
be inferred from quantities of drugs too large for personal consump-
tion. See United States v. Roberts, 881 F.2d 95, 99 (4th Cir. 1989).
This court has also held that "possession of a large amount of [drugs]
among several people working together may be sufficient to show that
each has constructive possession." United States v. Watkins, 662 F.2d
1090, 1097-98 (4th Cir. 1981), cert. denied, 455 U.S. 989 (1982).

The record here reveals sufficient direct and circumstantial evi-
dence to prove beyond a reasonable doubt that the Appellants were
connected with each other, with the motel room, and with the vehicle
in which the police officers recovered a substantial amount of crack
cocaine. Renteria-Caicedo gave a story the jury could have found
unbelievable about his reason for being in Greensboro. He said he
was there to visit a girlfriend, but he could not provide her last name,
address, or phone number.

There is also sufficient circumstantial evidence to prove that
Renteria-Caicedo had constructive possession of the cocaine base,
and that he intended to distribute the drug. Renteria-Caicedo, using an
alias, rented the motel room where he and Garcia were apprehended.
As well as renting the motel room under the alias Cristobal Rivera,
Renteria-Caicedo sent the money order using that alias. Also, the
listed address on the money order was not the motel where Renteria-
Caicedo was staying. In addition, Renteria-Caicedo attempted unsuc-
cessfully in his interview with Special Agent Graham to disassociate

                     4
himself from Garcia. He initially said that he arrived by taxicab at the
motel. This statement was contradicted by Renteria-Caicedo himself
in a later statement and by the presence of his luggage and Colombian
passport in the trunk of Garcia's car. A substantial amount of money
was found on Renteria-Caicedo's person in addition to the money
wire receipt of $1500 sent to a third party in the same state that he
claimed to be traveling from. We therefore find that the evidence, par-
ticularly when construed in the light most favorable to the Govern-
ment, was sufficient for the jury to conclude that Renteria-Caicedo
was guilty as charged of possession with intent to distribute cocaine
base.

The Appellants' contention of an ambiguity in the cocaine penalty
statutes is also without merit. Appellants presented the argument that
because cocaine base describes no other substance than cocaine and
since it is impossible to differentiate the substances, the sentencing
court should have employed the rule of lenity to compensate for the
ambiguity. The Appellants relied heavily on United States v. Davis,
864 F. Supp. 1303 (N.D. Ga. 1994), for support of this contention.
We have however explicitly rejected the reasoning of Davis and held
that a purposeful distinction was made in 21 U.S.C.A. § 841 (West
1981 & Supp. 1995) between cocaine and cocaine base or crack, mak-
ing the statute unambiguous and the rule of lenity inapplicable.
United States v. Fisher, 58 F.3d 96, 98-99 (4th Cir.), cert. denied, ___
U.S. ___, 64 U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923). We
therefore find that the district court correctly applied the stricter pen-
alties for cocaine base (crack) offenses.

We have also reviewed the Appellants' pro se claims and found
them all to be without merit. We therefore grant the Appellants'
motion to file the supplemental brief, deny Appellants' request for
new appellate counsel, and affirm the Appellants' conviction and sen-
tences.

AFFIRMED

                     5
