                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4617



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RONNIE WILTON FAIR,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-96-FWB)


Submitted:   June 21, 2006                 Decided:   August 14, 2006


Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT, P.C.,
Baltimore, Maryland, for Appellant.    Anna Mills Wagoner, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Following a jury trial, Ronnie Wilton Fair was convicted

of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2) (2000) (“Count One”), possession

with intent to distribute approximately one kilogram of cocaine

hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)

(2000) (“Count Two”), and use of a firearm in furtherance of a drug

trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(I)

(2000) (“Count Three”).     Fair challenges the district court’s

denial of his motion for a judgment of acquittal pursuant to

Federal Rule of Criminal Procedure 29 and his sentence. Finding no

error, we affirm Fair’s conviction and sentence.

          We review the denial of a Rule 29 motion de novo.   United

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).      Where, as

here, the motion was based on a claim of insufficient evidence,

“[t]he verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”   Glasser v. United States, 315 U.S. 60, 80 (1942).   We

consider both circumstantial and direct evidence, “and allow the

government 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).          Further, on

appellate review, we “may not weigh the evidence or review the




                               - 2 -
credibility of the witnesses.”           United States v. Wilson, 118 F.3d

228, 234 (4th Cir. 1997).

              To establish a violation of 21 U.S.C. § 841(a)(1), the

government must prove beyond a reasonable doubt that the defendant:

(1) knowingly; (2) possessed the controlled substance; (3) with the

intent to distribute it.        United States v. Burgos, 94 F.3d 849, 873

(4th   Cir.     1996)   (en    banc).       Possession        may   be   actual   or

constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.

1992).   “A person has constructive possession of a narcotic if he

knows of its presence and has the power to exercise dominion and

control over it.”        United States v. Schocket, 753 F.2d 336, 340

(4th Cir. 1985).        Possession need not be exclusive but may be

joint,   and    “may    be    established       by   direct    or   circumstantial

evidence.”     Id.; United States v. Wright, 991 F.2d 1182, 1187 (4th

Cir. 1993).      This court has held that “where other circumstantial

evidence . . . is sufficiently probative, proximity to contraband

coupled with inferred knowledge of its presence will support a

finding of guilt on such charges.”              United States v. Laughman, 618

F.2d 1067, 1077 (4th Cir. 1980) (internal quotations and citation

information omitted).         Intent to distribute may be inferred if the

amount of drugs found exceeds an amount normally associated with

personal consumption.         Wright, 991 F.2d at 1187.

              We note as an initial matter that the parties stipulated

to Fair’s prior felony conviction, the weight of the cocaine


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recovered, and that the firearm at issue traveled in interstate

commerce. Taken in the light most favorable to the Government, the

record establishes the following additional facts.

           A Drug Enforcement Agent from Los Angeles, California,

informed law enforcement officials in Greensboro, North Carolina,

that the DEA intercepted a package mailed by Dawn Headen, a

Greensboro resident, that contained over $16,000 cash.           Detective

Jon Marsh, accompanied by Detective Herb Sampson, went to Ms.

Headen’s apartment to investigate.          Ms. Headen lived on the second

floor of a three-story building.            Although Ms. Headen initially

allowed   the    detectives   in   her   apartment,   after   Det.   Sampson

requested permission to conduct a protective sweep, Ms. Headen

insisted the remainder of the interview be conducted in the parking

lot downstairs; the officers complied, and the three descended the

front stairs to the parking lot.

           While Det. Marsh interviewed Ms. Headen, Det. Sampson

patrolled the area, keeping watch on the apartment.           Det. Sampson

saw an individual later identified as Fair exit Ms. Headen’s

apartment.      Det. Sampson followed Fair down the building’s back

stairs, observing that Fair appeared to be using his body to hide

something he carried in his hands.            Det. Sampson saw Fair walk

around to the back of the building, and followed him.                At this

point, Det. Sampson nearly collided with Fair because Fair was

already returning from the back of the building.              Det. Sampson


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could see that Fair was no longer holding anything. Minutes later,

Det. Sampson investigated the area and recovered a plastic bag

containing .992 grams of cocaine hydrochloride hidden in a shrub.

Det. Sampson also discovered a cellular telephone near the cocaine,

which was later traced to Fair’s sister, who bought the phone for

Fair.

          While   examining   the   area   behind   the   building,   Det.

Sampson observed several objects being thrown out of a window

located inside Ms. Headen’s apartment.       Fair exited the apartment

shortly thereafter.    A subsequent search of the shrub directly

beneath Ms. Headen’s apartment yielded a set of digital scales and

the firearm, wrapped in a T-shirt.      Shortly after discovering the

cocaine and the firearm, Ms. Headen consented to a search of her

apartment, which was then unoccupied.

          Viewing this evidence in the light most favorable to the

Government, a rational trier of fact could conclude Fair both

possessed the recovered firearm and possessed with intent to

distribute the large quantity of cocaine found outside Ms. Headen’s

apartment.   Therefore, we find the jury’s unanimous verdict was

supported by substantial evidence.

          Turning to Fair’s assignments of error related to his

sentence, we review for plain error because Fair did not raise

these issues below.   United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005); United States v. Martinez, 277 F.3d 517, 524 (4th


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Cir. 2002).       Under the plain error standard, Fair must show:                     (1)

there was error; (2) the error was plain; and (3) the error

affected his substantial rights.               United States v. Olano, 507 U.S.

725, 732-34 (1993).             When these conditions are satisfied, this

court may exercise its discretion to notice the error only if the

error    “seriously       affect[s]     the    fairness,    integrity        or    public

reputation      of    judicial     proceedings.”        Id.     at    736    (internal

quotation marks omitted).             The burden of showing plain error is on

the defendant.        United States v. Strickland, 245 F.3d 368, 379-80

(4th Cir. 2001).

               Fair first argues the district court erred in sentencing

him   pursuant       to   the   Armed    Career   Criminal      Act   (“ACCA”).         A

defendant with three prior convictions for serious drug offenses

committed on separate occasions is subject to treatment as an armed

career criminal.          See 18 U.S.C. § 924(e)(1) (2000).                 Though the

statute does not define “committed on occasions different from one

another[,]” this court considers three factors in determining

whether offenses occurred on the same occasion and thus should

count as only one predicate offense:               “whether the offenses arose

in different geographic locations; whether the nature of the

offenses was substantively different; and whether the offenses

involved multiple victims or multiple criminal objectives.” United

States    v.    Letterlough,      63    F.3d    332,   335-36    (4th       Cir.    1995)

(footnotes       omitted).        A     conviction     is   considered        to     have


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“occur[red] on occasions different from one another if each of the

prior convictions arose out of a separate and distinct criminal

episode.”          Id. at 335 (internal quotation marks and citation

omitted).      Separate offenses are not made related simply because

the offenses were consolidated for sentencing or the defendant

received concurrent sentences.            United States v. Breckenridge, 93

F.3d 132, 137-38 (4th Cir. 1996) (citations omitted); United States

v. Rivers, 929 F.2d 136, 140 (4th Cir. 1991).

              A review of Fair’s criminal history demonstrates that he

had   the     requisite    three   prior    convictions       for    serious    drug

offenses.          On November 18, 1992, Fair was convicted in North

Carolina state court on two counts of felony possession with intent

to    sell    or    deliver   cocaine,     and    sentenced     to    five   years’

imprisonment.         The two counts arose from Fair’s sale of narcotics

on January 16, 1992, and July 31, 1992.               The convictions are not

related      solely    because   they    were    consolidated       for   sentencing

because there was no formal order consolidating the cases.                   United

States v. Allen, 50 F.3d 294, 297-98 (4th Cir. 1995).                 Fair’s third

qualifying offense occurred on June 6, 1995, when he was convicted

of,   among     other    offenses,      felony   possession     of    cocaine   and

sentenced to fifteen years’ imprisonment. Thus, the district court

did not err in sentencing Fair pursuant to the ACCA.

              Lastly, Fair asserts that the career offender guideline,

USSG § 4B1.1 (2004), violates the Equal Protection Clause.                      Fair


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argues   that,   because    a   criminal   conviction   that      predates    a

defendant’s eighteenth birthday will be counted as a predicate

offense in some instances but not in others, depending on the

underlying   state   law,   the   guideline   runs   afoul   of    the    Equal

Protection Clause.      We have categorically rejected such equal

protection challenges to the career offender guideline before, and

see no reason to deviate from our prior holdings here.                   United

States v. Fonville, 5 F.3d 781, 785 (4th Cir. 1993).           Thus, we find

this claim to be meritless.

           For the foregoing reasons, we affirm Fair’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 argument would not aid the decisional process.



                                                                    AFFIRMED




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