                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-4693


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KAD CARSON ELSWICK,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, Chief
District Judge. (1:04-cr-00091-jpj)


Argued:   October 31, 2008                 Decided:   December 31, 2008


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed   in  part,  reversed  in  part,  and  remanded  for
resentencing by unpublished per curiam opinion.   Judge Shedd
wrote a separate opinion concurring in part and dissenting in
part.


ARGUED: Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., McLean,
Virginia, for Appellant.    Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: Julia C. Dudley, Acting United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Kad    Elswick    (“Elswick”),      was    convicted            of   four   counts:

Count One, possession with intent to distribute methamphetamine

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count Two,

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g)(1) and 924(e); Count Three, use of a firearm in

relation to a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1)(A); and Count Four, failure to appear in violation of

18 U.S.C. § 3146(a)(1).         Elswick appeals all of his convictions

except that for failure to appear.

     As discussed below, Elswick’s challenges to Counts One and

Two lack merit, and we affirm as to those.                           On these facts,

however, following the Supreme Court’s decision in Watson v.

United States, 128 S. Ct. 579 (2007), his conviction under 18

U.S.C. § 924(c)(1)(A) can no longer be supported.                          We therefore

reverse as to that count and remand for resentencing.



                                       I.

     Federal    agents      approached       Elswick      in    September        2004    in

connection     with    an    investigation         into        Larry      Blackburn,      a

Virginia drug dealer.        J.A. at 47-48.         The agents initially told

Elswick that he was not being investigated but that they were

merely   seeking      information     regarding      a      firearm       that   he     had

allegedly    possessed.        J.A.    at    64.       In      the     course    of     the

                                         2
conversation, the agents learned that Elswick was a convicted

felon.      Subsequently,     Elswick       was   indicted     on   four   counts

related to drug possession and distribution, the possession of a

firearm, and failure to appear.         J.A. at 16-17.

      At trial, Eric Woods testified for the government that he

had stolen his father’s gun in order to trade it for drugs.                   He

claimed that he gave the gun to his friend, Terry Looney, who

took the gun into a home and returned without it.                   J.A. at 22-

24.      Eric Woods did not know who lived in the home or who

received the gun from Looney; and Looney did not testify at

trial.     Later that same day, the two drove to a convenience

store    parking    lot.    There,   Looney       approached    a   parked   car.

Elswick was seated in the driver’s seat.               Eric Woods testified

that Elswick gave Looney “a bag” that contained methamphetamine.

J.A. at 24-26.

      Lloyd Woods, Eric’s father, then testified that he received

a call from Elswick sometime later.               Elswick stated that he had

Lloyd Woods’s gun and would return the gun to Lloyd Woods in

exchange for a payment of $50.              Lloyd Woods agreed and drove to

Elswick’s home where he gave Elswick $50.              The gun, however, was

not located at Elswick’s home, and the two men had to wait until

a female arrived with the gun, at which point it was returned to

Lloyd Woods.       J.A. at 39-40, 82-83.



                                        3
        When    questioned       by    federal          agents,     Elswick      admitted      to

having bought a gun from two boys that matched the description

of that owned by Lloyd Woods.                     Elswick disputed any implication

that drugs were involved in the transaction.                            J.A. at 49-50.         He

then claimed that Blackburn, to whom he had sold or pawned the

gun, told him to return it to Lloyd Woods since it had a defect.

He signed a copy of a statement setting forth those facts.                                   J.A.

at 50, 134.           At trial, Elswick claimed that the statement he

gave    to     investigators        was     not       true   and    offered      a    different

account of how he came to sell the gun back to Lloyd Woods.                                  His

trial testimony centered on the fact that his long-time live-in

girlfriend          had    bought      the        gun     and      that     he       lied    when

investigators questioned him because at the time she was dying

of cancer and he wanted to protect her.                         J.A. at 84-85.

        Elswick also failed to appear before the court, one of the

conditions of his supervised release.                        Following his jury trial,

Elswick      was    convicted     on       all    counts.          He   timely       filed   this

appeal.



                                                 II.

       Elswick alleges that there is insufficient evidence in the

record         to    support        his      convictions            on      possession         of

methamphetamine           with   intent      to       distribute,       being    a    convicted

felon    in     possession       of    a    firearm,         and    using    a   firearm       in

                                                  4
relation to or possessing a firearm in furtherance of a drug

crime.     Challenges to the sufficiency of evidence are reviewed

de novo.     United States v. Kelly, 510 F.3d 433, 440 (4th Cir.

2007).      A court reviews a jury verdict to determine whether

“there is substantial evidence, taking the view most favorable

to the Government, to support [the verdict].”           United States v.

Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc) (citation

omitted).     The court therefore looks to see whether, based upon

the evidence in the record “and the reasonable inferences to be

drawn therefrom[,] . . . the evidence adduced at trial could

support any rational determination of guilty beyond a reasonable

doubt.”     Id. at 863 (quoting United States v. Powell, 469 U.S.

57, 67 (1984)) (internal quotations omitted); see also Jackson

v. Virginia, 443 U.S. 307, 318 (1979) (“[T]he critical inquiry .

. . [is] whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt.”).           We discuss each

of Elswick’s bases for appeal in turn.



                                    A.

     Elswick first challenges the sufficiency of the evidence on

which his conviction for the possession of methamphetamine with

intent to distribute is based.

     This    challenge   is   without    merit.   In   order   to   convict

Elswick, the government was required to show that he knowingly

                                    5
possessed the controlled substance in question and intended to

distribute it.         See United States v. Randall, 171 F.3d 195, 209

(4th   Cir.     1999).         The    government       here    presented   eyewitness

testimony       from    Eric    Woods        that    Elswick   both    possessed   and

distributed methamphetamine.                  Witness testimony that could be

credited by a reasonable juror is itself “sufficient to sustain

the jury verdict.”           United States v. Whittington, 455 F.3d 736,

740 (6th Cir. 2006); see also United States v. Catalan-Vazquez,

211 F. App’x 864, 866 (11th Cir. 2006) (unpublished) (holding

that    a   jury       may   base      its     verdict    on    any    testimony   not

“unbelievable on its face” or “so contrary to the teachings of

human experience that no rational person could believe in it”

(quoting United States v. Jones, 913 F.2d 1552, 1559 n.7 (11th

Cir. 1990))); United States v. Carpenter, 422 F.3d 738, 746 (8th

Cir. 2005) (finding that corroboration of witness testimony is

not required because credibility is for the jury to determine).

Because     a    reasonable          jury    could     have    found   Eric   Woods’s

testimony credible and because that testimony was a sufficient

basis for the conviction, Elswick’s challenge fails.



                                              B.

       Elswick also raises a challenge to the sufficiency of the

evidence supporting his conviction under 18 U.S.C. § 922(g) for



                                               6
being a convicted felon in possession of a firearm.              Proving the

offense requires a showing that:

     (1) the defendant previously had been convicted of a
     crime punishable by a term of imprisonment exceeding
     one year; (2) the defendant knowingly possessed,
     transported, shipped, or received, the firearm; and
     (3) the possession was in or affecting commerce,
     because the firearm had travelled in interstate or
     foreign commerce at some point during its existence.

United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en

banc).

     Elswick contends that the government failed to demonstrate

that he knowingly possessed a firearm.            At trial, the government

introduced testimony from Lloyd Woods and Elswick’s own signed

statement    to    show   that   Elswick   had    knowingly   possessed   the

firearm.     See J.A. at 40-41, 134.             This constitutes evidence

sufficient to permit a reasonable jury to conclude that Elswick

possessed a gun in violation of the statute.



                                      C.

     Finally, Elswick challenges his conviction under 18 U.S.C.

§ 924(c)(1)(A).       The government contends that Elswick does not

challenge the sufficiency of the evidence on this conviction,

only the application of Watson to his conduct.                Appellee’s Br.

at 19 n.3.        While it is true that Elswick frames this argument

slightly differently from his other two sufficiency challenges,

he does argue for a standard of review that is based upon an

                                      7
insufficiency of the evidence challenge.                      Appellant’s Br. at 29.

In    addition,      his    Fourth     Circuit        case    law   citation       applying

Watson to a previously-rendered 924(c)(1) conviction is based

upon a sufficiency of the evidence challenge.                         Id. at 30 (citing

United      States    v.    Purnell,       269   F.    App’x    313    (4th    Cir     2008)

(unpublished)).            Elswick has sufficiently raised the challenge

for this court to be able to review the sufficiency of the

evidence with respect to his 924(c)(1)(A) conviction.

       18 U.S.C. § 924(c)(1)(A) has two prongs. 1                      One criminalizes

the    use    or     carrying   of     a    firearm      in    relation       to   a   drug


       1
           The full text of the statute reads:

       Except to the extent that a greater minimum sentence
       is otherwise provided by this subsection or by any
       other provision of law, any person who, during and in
       relation to any crime of violence or drug trafficking
       crime   (including  a  crime   of  violence   or  drug
       trafficking crime that provides for an enhanced
       punishment if committed by the use of a deadly or
       dangerous weapon or device) for which the person may
       be prosecuted in a court of the United States, uses or
       carries a firearm, or who, in furtherance of any such
       crime, possesses a firearm, shall, in addition to the
       punishment provided for such crime of violence or drug
       trafficking crime—

       (i) be sentenced to a term of imprisonment of not less
       than 5 years;

       (ii) if the firearm is brandished, be sentenced to a
       term of imprisonment of not less than 7 years; and

       (iii) if the firearm is discharged, be sentenced to a
       term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A).


                                             8
trafficking crime.            The other prong criminalizes the possession

of     a    firearm    in    furtherance       of     a     drug   trafficking        crime.

Neither       the     indictment    nor     the       verdict      in     Elswick’s       case

distinguished          between     the      use      and     possession          prongs    of

924(c)(1)(A).

       While this appeal was pending, the Supreme Court decided

Watson.        In that case, the Court held that an individual who

receives a gun in exchange for drugs cannot be said to “use” the

gun in relation to a drug trafficking offense.                             128 S. Ct. at

586.       Thus, in order to show use of a firearm in relation to a

drug       trafficking      offense,     the       government      must    prove    “active

employment of the firearm by the defendant, a use that makes the

firearm       an    operative      factor      in     relation       to    the    predicate

offense.”          Id. at 581-82 (quoting Bailey v. United States, 516

U.S. 137, 143 (1998)).              Following Watson, there is no evidence

in the record to substantiate a use charge.                               The government

presented no evidence that Elswick attempted to acquire drugs

using the gun, nor that he in any way employed the gun for any

purpose related to a drug transaction.                       The government concedes

that Elswick can no longer be held guilty under the use prong of

924(c)(1)(A).         Appellee’s Br. at 17.

       The government argues, however, that Elswick’s conviction

remains valid because it was premised upon the possession prong.

The    Supreme      Court    in   Watson       did    not    reach      the   question     of

                                               9
whether     the    possession      prong    of     924(c)(1)(A)        would      apply    to

situations where a gun was received in exchange for drugs.                                128

S. Ct. at 585-86.

      In order to convict Elswick for possession of a firearm

under    924(c)(1)(A),       the    government       is    required        to    show    that

Elswick (1) possessed a firearm (2) in furtherance of a drug

trafficking        crime.      While       the     evidence      in    the      record    is

sufficient to prove the first element, on these facts we find

that the government’s proof fails to demonstrate the required

connection        between    the   possession       of     the   gun    and      the     drug

trafficking crime.



                                   1. Possession

      The    record    reflects      evidence       sufficient        to     support      the

charge    that     Elswick    possessed      the     firearm.          Lloyd     Woods,     a

government witness, testified that he received a telephone call

from Elswick.           Elswick informed Mr. Woods that his gun was

available for redemption from Elswick at a price of $50.                                  Mr.

Woods went to Elswick’s house and met with Elswick, whereupon

Elswick informed Mr. Woods that the gun was being brought over.

A   female    arrived,       and   Mr.     Woods    paid    Elswick        the    required

amount.      Elswick then took the gun from the female and handed it

to Mr. Woods.          J.A. at 40.          In his statement to Agent Yoh,



                                            10
Elswick acknowledged having been in possession of the gun.                         J.A.

134.

       While    Elswick     testified      that    his    signed     statement      was

false, credibility determinations and conflicting testimony by

witnesses are questions for the jury to resolve.                           Burgos, 94

F.3d at 862-63 (citing United States v. Lowe, 65 F.3d 1137, 1142

(4th Cir. 1995)).           In this case, the record reflects enough

evidence to have enabled a reasonable trier of fact to conclude

that Elswick did possess the gun.



                             2. In Furtherance Of

       However,    on     these    facts    the    government       has    not    shown

sufficient     evidence     to    permit    the    conclusion       that    Elswick’s

possession was “in furtherance of” a drug trafficking crime as

required by the statue.            The Fourth Circuit reads “furtherance”

in this statutory scheme according to its plain meaning: “the

act    of   furthering,     advancing,      or     helping   forward.”           United

States v. Lomax, 293 F.3d 701, 705 (4th                    Cir. 2002) (citations

omitted)       (finding     that     this       reading      accords       with     the

Congressional     intent     in    amending       the    statute    to    criminalize

possession).       The     government      therefore       bears    the    burden    of

presenting evidence that the gun was possessed in furtherance of

a   drug    trafficking     crime,    which       requires   demonstrating         some

connection between the gun and the drug crime.                     United States v.

                                           11
McDaniel, No. 06-5051, 2008 WL 3977880, at *1 (4th Cir. Aug. 25,

2008) (unpublished); Lomax, 293 F.3d at 705; see also United

States v. Porter, No. 07-14627, 2008 WL 4140283, at *6 (11th

Cir. Sept. 9, 2008) (requiring proof of “some nexus between the

firearm and the drug selling operation”) (quoting United States

v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)); United States

v. Hilliard, 490 F.3d 635, 640 (8th Cir. 2007) (applying a nexus

requirement); United States v. Harris, 477 F.3d 241, 244 (5th

Cir. 2007) (the burden is the government’s); United States v.

Bobb, 471 F.3d 491, 496 (3rd Cir. 2006) (holding that evidence

is sufficient to support a conviction where it establishes “a

nexus     between    the    possession     of    the     gun    and    the    drug

trafficking”); United States v. Mosely, 465 F.3d 412, 417 (9th

Cir. 2006) (examining whether the required nexus can be shown

based on the totality of the circumstances).

     In    this     case,   the   “factual      question”      of   whether     the

evidence    supports    a   finding   that      the    gun   was    possessed    in

furtherance of a drug trafficking crime, Lomax, 293 F.3d at 705,

turns on the content of the record from the trial below.                     Courts

have given wide scope to the theories by which the government

may show the required connection between possession of a firearm

and a drug trafficking crime:

     When making this factual determination, the fact
     finder is free to consider the numerous ways in which
     a firearm might further or advance drug trafficking.

                                      12
      For example, a gun could provide a defense against
      someone trying to steal drugs or drug profits, or it
      might lessen the chance that a robbery would even be
      attempted. Additionally, a gun might enable a drug
      trafficker to ensure that he collects during a drug
      deal. And a gun could serve as protection in the event
      that a deal turns sour. Or it might prevent a
      transaction from turning sour in the first place.
      Furthermore, a firearm could help a drug trafficker
      defend his turf by deterring others from operating in
      the same area.

Id.   (adopting   the    listed   examples   from   those   enumerated   in

United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir.

2000)); see also Porter, 2008 WL 4140283, *6 (same); Bobb, 471

F.3d at 496-97 (same).

      Other   circuits     have   also    upheld    convictions   on     the

possession prong of 924(c)(1)(A) where the gun was in physical

proximity to the drugs being trafficked and there was testimony

that drug dealers kept guns for protection in drug deals, so

that it could reasonably be inferred that the gun was being kept

for use in the drug trafficking enterprise.          Hilliard, 409 F.3d.

at 640-41; Bobb, 471 F.3d at 496-97; Mosley, 465 F.3d at 705-06;

see also United States v. James, 464 F.3d 699, 405 (7th Cir.

2006) (holding that where defendant’s associates had testified

to his ownership of several guns, the government had met its

burden by showing that one of those gun and drugs attributed to

the defendant were found in the same shoebox).              All of these

constructions suggest that the gun must play some role in the

transaction or have a discernible effect on its outcome.

                                     13
      At   oral    argument,      the   government    contended    that   because

Elswick received the gun in exchange for drugs, he possessed it

in furtherance of a drug trafficking crime.               This is, of course,

the issue the Supreme Court declined to reach in Watson. 128 S.

Ct. 585-86.       We conclude, similarly, that we need not resolve it

here. 2

      Although     we    have     not    had   occasion   to    opine     on   the

relationship between the “in relation to” and “in furtherance

of” prongs of § 924(c), we find the evidence to be deficient

even under the government’s theory of the case.                   The government

has proven that Eric Woods took the gun and gave it to Looney

intending     that      it   be    exchanged    for    drugs;     that    Elswick

trafficked in methamphetamine; and that at some point following


      2
      Some of our sister circuits have concluded that the phrase
“in furtherance of” in the statutory provision on possession
represents a different, and heightened, standard from that
associated with use and carrying. See United States v. Castano,
No. 06-1720, 2008 WL 4470849, at *7 (6th Cir. Oct. 7, 2008)
(noting that the statutory text requires the government meet a
“higher standard” in possession cases); United States v. Gamboa,
439 F.3d 796, 810 (8th Cir. 2006) (“[T]he language ‘in
furtherance   of’  requires  a   slightly  higher   standard  of
participation than the language ‘during and in relation to.’”)
(citations omitted); United States v. Combs, 369 F.3d 925, 931
(6th Cir. 2004) (analyzing the presence of the disjunctive “or”
to find that the standards are different); Ceballos-Torres, 218
F.3d at 413-15 (finding that the “mere presence” of a firearm,
without more, is not sufficient to meet the higher standard);
accord United States v. Lipford, 203 F.3d 259, 266 (4th Cir.
2000) (holding that even in the case of the “in relation to”
requirement, the presence of the firearm must be more than
coincidental).


                                         14
the drug transaction Elswick was in possession of the gun.                The

government has not, however, proven the facts upon which its

theory of Elswick’s 924(c)(1)(A) conviction is predicated:               that

he received the gun in exchange for drugs.                  Based upon the

record,   no   rational   trier   of   fact   could    conclude     beyond   a

reasonable doubt that Elswick possessed a firearm in furtherance

of a drug trafficking crime.

     The record shows that Elswick committed a drug trafficking

crime.    Eric Woods testified that he saw Elswick hand something

to Looney and that this was a bag of methamphetamine.               However,

there is no evidence in the record that Elswick possessed the

gun at the time of this transaction.           None of the government’s

witnesses could place Elswick, the gun, and the drugs in the

same chain of events.       Though he testified that Elswick later

delivered the drugs they received, Eric Woods did not see who

took possession of the gun from Looney.             The later transaction

with Lloyd Woods in which Elswick sold the gun for $50 was not

related   to   drug   trafficking,      nor   was     any   claim   of   such

connection made.      Elswick’s statement, which was admitted into

the record, made no mention of a drug transaction; and Eric

Woods did not know who actually received the gun.              There is no

evidence that the gun was used for protection or intimidation

during the transaction.      Elswick’s possession of the gun is not

temporally connected with the methamphetamine transaction either

                                   15
through     the   testimony   or    exhibits     presented   at   trial.        The

government could not even establish that Elswick had received

the   gun    prior   to   the      transaction    or   was   promised      it    as

compensation for the drugs.          In fact, the evidence in the record

does not even establish that the events in question all took

place in the same year.         See J.A. at 22, 35, 79, 90, 134.

      On the record before us, therefore, it is clear that the

evidence is insufficient to support Elswick’s conviction under §

924(c)(1)(A) for possessing a firearm in furtherance of a drug

trafficking crime.



                                       III.

      For the foregoing reasons, we affirm Elswick’s conviction

and sentence as to Counts One and Two, and we reverse and remand

with respect to Count Three for resentencing in accordance with

this opinion.

                                      AFFIRMED IN PART, REVERSED IN PART,
                                            AND REMANDED FOR RESENTENCING




                                        16
SHEDD, Circuit Judge, concurring in part and dissenting in part:

     I agree with the majority’s decision to affirm Elswick’s

convictions    for      possession          with    intent      to    distribute,       and

distribution of, methamphetamine (Count 1) and possession of a

firearm by a convicted felon (Count 2), and its conclusion that

Elswick’s conviction under 18 U.S.C. § 924(c) (Count 3) cannot

stand    insofar   as       it   is   premised      on    the   “use”      prong   of   the

statute in light of Watson v. United States, 128 S. Ct. 579

(2007).    However,      Elswick      was    also    indicted        and   convicted     in

Count 3 under the separate § 924(c) prong that criminalizes the

possession of a firearm in furtherance of a drug trafficking

crime.     The majority holds that the evidence is insufficient to

sustain that conviction because no rational trier of fact could

conclude    beyond      a    reasonable      doubt       that   Elswick     possessed     a

firearm in furtherance of a drug trafficking crime.                           I disagree

with this holding. 1


     1
        Watson is the only basis which Elswick argued in his brief
for reversal on Count 3.     See Brief of Appellant, at 29 (Count
3 section title: “Whether Trading Drugs For A Gun Constitutes
The Use Of A Firearm ‘During And In Relation To . . . [A] Drug
Trafficking     Crime’  Within   The  Meaning   of  18   U.S.C.  §
924(c)(1).”). I therefore question whether we should review the
evidentiary sufficiency on Count 3 as it pertains to the
possession prong. See United States v. Al-Hamdi, 356 F.3d 564,
571 n.8 (4th Cir. 2004) (noting the “well settled rule that
contentions not raised in the argument section of the opening
brief are abandoned”).       Moreover, it does not appear that
Elswick challenged the sufficiency of the evidence below under
Federal Rules of Criminal Procedure 29.       Accordingly, to the
(Continued)
                                             17
    Viewed in the light most favorable to the government, see

Evans v. United States, 504 U.S. 255, 257 (1992), the evidence

is clearly sufficient to support a reasonable determination that

Elswick    possessed     the   firearm   in    furtherance   of    a   drug

trafficking   crime.       Specifically,      the   government    presented

evidence that Eric Woods stole his father’s firearm and enlisted

the help of his friend Terry Looney to use it to get drugs.

J.A. 22-23.    Looney told Woods that he knew where they could

trade the firearm for drugs, and he took Woods to a house in an

area known as “Dry Fork” and told him that Elswick was the

person there who could give them drugs for the firearm.                J.A.

22-23.     Looney then went inside the house with the firearm.

J.A. 24.    When Looney returned, he told Woods that they needed

to go to a Dry Fork store and wait.             J.A. 24.     Within 15-20

minutes, Elswick arrived at the store and delivered drugs to

Looney.    J.A. 24-25.     Elswick later contacted Woods’ father and

returned the firearm to him. J.A. 38-40.            Importantly, Elswick

subsequently admitted in a sworn statement that he had obtained

the firearm from “two boys” for $50 at a Dry Fork store.               J.A.




extent that we should review this claim at all, our review
should only be for plain error.    See United States v. Wallace,
515 F.3d 327, 331-32 (4th Cir. 2008).



                                    18
134.       However, Elswick testified at trial that he had lied about

obtaining the firearm in his sworn statement.                         J.A. 84, 90-91.

       By convicting Elswick of Count 1, the jury credited Woods’

testimony (and disbelieved Elswick) that Elswick delivered the

methamphetamine at the convenience store. 2                          Based on Elswick’s

admission that he obtained the firearm from “two boys” at a Dry

Fork convenience store, as well as the evidence establishing

that Elswick returned the firearm to Woods’ father, the jury

also could have reasonably found (consistent with Woods’ general

testimony)        that     Looney      delivered          the    firearm     to   Elswick

immediately         before     the     drug        transaction.           This    set    of

circumstances,           properly       viewed        “as        a     coordinated      and

interrelated whole,” United States v. Hughes, 716 F.2d 234, 240

(4th       Cir.   1983),     is    sufficient        to     establish      that   Elswick

received      the    firearm      in   payment      for    the       methamphetamine    and


       2
      The jury obviously disbelieved much of Elswick’s testimony
because he not only denied delivering the methamphetamine to
Looney and Woods, but he also denied (contrary to the verdict on
Count 2) ever possessing the firearm.          I note that the
difference between Elswick’s pretrial version of events (i.e.,
he bought the firearm for $50) and Woods’ testimony (i.e.,
Looney traded the firearm for drugs) is immaterial because the
jury could have believed that Elswick received the firearm from
Looney and Woods and disbelieved that the exchange was for cash
rather than drugs.   See United States v. Pruneda-Gonzalez, 953
F.2d 190, 196 n.9 (5th Cir. 1992) (“Not only is a jury free to
choose among reasonable constructions of the evidence, it is
afforded the latitude to choose to believe part of what a
witness says without believing all of that witness’s testimony.”
(citations and internal punctuation omitted)).


                                              19
thereby    possessed      the   firearm     in   furtherance   of   the   drug

trafficking crime charged in Count 1.                 See United States v.

Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (holding that § 924(c)

“requires the government to present evidence indicating that the

possession of a firearm furthered, advanced, or helped forward a

drug trafficking crime . . . [and] whether the firearm served

such   a   purpose   is   ultimately   a    factual   question”);   see   also

United States v. Woods, 271 Fed. Appx. 338, 346 (4th Cir. 2008)

(holding in light of Watson that a defendant who traded drugs

for firearms “obviously ‘possessed’ firearms, under any meaning

of that term, when he obtained them in the course of his drugs-

for-guns business”).

       Based on the foregoing, I concur in Parts II-A and II-B of

the majority opinion, but I dissent from Part II-C.




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