                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5132


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BOBBY LARUE THOMPSON,

                Defendant – Appellant.



                            No. 10-5228


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

          v.

BOBBY LARUE THOMPSON,

                Defendant – Appellee.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.    Graham C. Mullen,
Senior District Judge. (3:05-cr-00294-GCM-2)


Submitted:   October 27, 2011             Decided:   November 17, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, Steven G.
Slawinski, Assistant Federal Public Defenders, Charlotte, North
Carolina, for Appellant/Cross-Appellee.      Anne M. Tompkins,
United States Attorney, Dana O. Washington, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee/Cross-
Appellant.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Bobby Larue Thompson (“Thompson”), his younger brother

Tido Maurice Thompson (“Tido”), his father Bobby Larue Thompson,

Sr.    (“Bull”),        and    four     others       were     charged         in    a    federal

indictment with drug and firearm offenses.                              Following a jury

trial,      Thompson     was       convicted   of     conspiring         to    possess        with

intent to distribute cocaine base (Count One), in violation of

21 U.S.C. § 846 (2006), and possession with intent to distribute

cocaine base (Counts Two, Six, and Seven), in violation of 21

U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2011).                                      The

district court sentenced Thompson to 151 months’ imprisonment.

In    his    appeal,        Thompson     challenges         the    sufficiency           of    the

evidence      supporting           Counts    Two,      Six,       and     Seven         and    the

application        of   a     two-level     enhancement           for    possession           of   a

firearm.       The Government has filed a cross-appeal in which it

argues      that     the      district      court     erred        in    concluding           that

Thompson’s prior North Carolina convictions were not felonies

exposing him to enhanced statutory penalties.                           We affirm.

              We begin by reviewing the sufficiency of the evidence.

We review de novo challenges to the sufficiency of the evidence

supporting a jury verdict.                  United States v. Kelly, 510 F.3d

433, 440 (4th Cir. 2007); see United States v. Green, 599 F.3d

360, 367 (4th Cir.) (stating standard of review for denial of

Fed.   R.    Crim.      P.    29    motion),       cert.    denied,      131       S.   Ct.    271

                                               3
(2010).     A jury verdict should be affirmed where, “viewing the

evidence in the light most favorable to the prosecution, [it] is

supported by substantial evidence.”                      United States v. King, 628

F.3d     693,        700    (4th Cir. 2011)             (internal          quotation        marks

omitted).            Substantial        evidence       is      such      “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.”               United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).

            To convict Thompson of violating 21 U.S.C. § 841, the

Government was required to prove beyond a reasonable doubt that

Thompson: (1) knowingly, (2) possessed the controlled substance,

(3) with the intent to distribute it.                              Id. at 873.          United

States      v.        Moye,       454        F.3d      390,        395     (4th Cir. 2006).

“Constructive possession is established if it is shown that the

defendant exercised, or had the power to exercise, dominion and

control over the item.”                 Id. (internal quotation marks omitted).

We have explained that “[a] defendant is guilty of aiding and

abetting     if      he     has    knowingly          associated         himself     with     and

participated in the criminal venture.”                         Burgos, 94 F.3d at 873.

Moreover,       in    order   “to       be   convicted        of   aiding      and   abetting,

participation         in    every       stage    of    an     illegal      venture     is     not

required,       only       participation        at      some       stage      accompanied      by



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knowledge of the result and intent to bring about that result.”

Id. (internal quotation marks and alterations omitted).

             Thompson    maintains     that    the   Government   presented     no

evidence that he possessed crack cocaine, either actually or

constructively, on any of the occasions charged in Counts Two,

Six, and Seven.       He asserts that, with respect to Counts Two and

Seven, there was no evidence as to whom the drugs belonged and

thus no evidence he aided and abetted the owner of the drugs.

Thompson notes that the police informant indicated that Tido

sold the drugs at issue in Count Six and contends that there is

no evidence that he was involved in that transaction.

             Although mere presence on the premises where drugs are

found in insufficient to prove constructive possession, United

States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), “a fact

finder may properly consider the totality of the circumstances

surrounding the defendant’s arrest and his alleged possession.”

United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert.

denied,   131   S.    Ct.    3440   (2010).      Our    review    of   the   trial

testimony     leads     us   to     conclude    that    substantial     evidence

supports the jury’s verdict on Counts Two, Six, and Seven.

             Next, Thompson argues that the district court clearly

erred when it applied a two-level enhancement after concluding

he possessed a firearm in connection with the drug offenses.

See   U.S.   Sentencing      Guidelines     Manual     (“USSG”)   § 2D1.1(b)(1)

                                        5
(2007).       Thompson asserts that he was never seen with a gun

during the course of the conspiracy and notes that the district

court granted his Rule 29 motion as to the firearms offenses

charged in the indictment.

              In assessing a sentencing court’s application of the

Guidelines, this court reviews its legal conclusions de novo and

its factual findings for clear error.                           United States v. Mehta,

594   F.3d    277,     281       (4th Cir.),           cert.    denied,      131      S.    Ct.    279

(2010).      The Government must prove the facts needed to support a

sentencing        enhancement           by    a    preponderance           of    the       evidence.

United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).

              When     a    defendant          possesses        a    dangerous         weapon       in

connection with a drug offense, the Guidelines authorize a two-

level     increase         in     the        defendant’s        offense          level.           USSG

§ 2D1.1(b)(1).             The    commentary           explains      that       the    enhancement

“should    be     applied        if   the      weapon     was     present,        unless      it    is

clearly      improbable          that    the       weapon      was    connected            with    the

offense.”         USSG § 2D1.1 cmt. n.3.                  “[T]he Government need show

only that the weapon was possessed during the relevant illegal

drug activity.”            United States v. McAllister, 272 F.3d 228, 234

(4th Cir. 2001).             “[P]roof         of   constructive            possession        of    the

dangerous weapon is sufficient, and the Government is entitled

to rely on circumstantial evidence to carry its burden.”                                      United

States       v.      Manigan,           592 F.3d         621,        629        (4th Cir. 2010).

                                                   6
Accordingly,        the       Government     may       rely    on       the    type      of   firearm

involved and the proximity of the firearm to illegal narcotics.

Id.

            We have reviewed the record with these standards in

mind and conclude that the district court did not clearly err in

applying the firearm enhancement.                           See McAllister, 272 F.3d at

234 (stating standard of review).                       Although Thompson was not the

only    occupant        of    the     Eleanor      Drive       residence         where        officers

seized the firearm, his Guidelines range is calculated based on

“all    reasonably        foreseeable         acts      and     omissions           of   others     in

furtherance of the jointly undertaken criminal activity.”                                        USSG

§ 1B1.3(a)(1)(B).                  Because      Thompson           does       not     contest      the

sufficiency      of      the    evidence      as       to    the    conspiracy           charged    in

Count    One     and      a    firearm       was       found       in    close      proximity       to

narcotics      in       the    residence        where        police       had       observed     drug

activity, the district court properly applied the enhancement.

            In      a     cross-appeal,         the         Government        argues      that     the

district       court         erred     in    concluding            that       Thompson’s        prior

convictions were not felony convictions and could not support an

enhanced statutory sentence.                  This argument now is foreclosed by

our recent decision in United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc).

            Based on the foregoing, we affirm the judgment of the

district    court.            We     dispense      with      oral       argument      because      the

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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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