                                                Filed:   July 3, 1997


                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT



                         Nos. 95-5746(L)
                            (CR-95-49)



United States of America,

                                               Plaintiff - Appellee,

         versus

Robert Elton Stotts, etc., et al,

                                           Defendants - Appellants.




                            O R D E R


    The Court amends its opinion filed May 30, 1997, as follows:

    On page 4, first paragraph, line 12; and on page 7, first full
paragraph, line 8, and second full paragraph, line 12 -- the word

"Id." is deleted in each instance.

                                     For the Court - By Direction



                                        /s/ Patricia S. Connor

                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                  No. 95-5746
ROBERT ELTON STOTTS, a/k/a
Sugarbear,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                No. 95-5748

LINDSEY BROWN, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                No. 95-5779

CALVIN FONVILLE, a/k/a Cal,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                  No. 95-5798
RICHARD EARL WILSON, JR., a/k/a
Robert Wilson,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-95-49)

Argued: April 11, 1997

Decided: May 30, 1997

Before WILKINSON, Chief Judge, and MICHAEL and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jon Michael Babineau, Norfolk, Virginia, for Appellant
Fonville; Andrew Robert Sebok, Norfolk, Virginia, for Appellant
Stotts; Charles Russell Burke, Virginia Beach, Virginia, for Appellant
Brown; Sterling Harrisbe Weaver, Sr., Portsmouth, Virginia, for
Appellant Wilson. Kevin Michael Comstock, Assistant United States
Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Remona Sein, Third Year Law Stu-
dent, Norfolk, Virginia, for Appellee.

_________________________________________________________________

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

_________________________________________________________________

OPINION

PER CURIAM:

Robert Stotts, Lindsey Brown, Jr., Calvin Fonville, and Robert
Wilson, Jr. appeal their convictions and sentences for drug trafficking

                    2
and firearms offenses. The four make insufficiency of the evidence
arguments on all counts of conviction except for the counts under 18
U.S.C. § 924(c)(1), relating to using or carrying firearms. As to the
latter the appellants say that erroneous jury instructions in light of
Bailey v. United States, 116 S. Ct. 501 (1995), require reversal. All
four appellants argue that the district court erred in its calculation of
the amount of drugs attributable to them for sentencing purposes. In
addition, Fonville argues that the district court erred when it refused
to grant him a two-level downward departure for his minor role in the
conspiracy. Under Bailey we vacate the § 924(c)(1) convictions,
vacate the sentences, and remand for a determination of whether
U.S.S.G. § 2D1.1(b)(1) should be applied. Otherwise, we affirm.

I.

On March 22, 1995, a federal grand jury in the Eastern District of
Virginia returned a twenty-five count indictment against ten persons
in an alleged drug ring, including the four appellants and Anthony
Geppi, Glenwood Davis, Dawn King, Lola Keubler, Alfredo Torres,
and Robin White. Six, including the ring leader, Geppi, pled guilty,
but the four appellants went to trial. All six who pled guilty testified
against the appellants. At trial Stotts and Fonville were found guilty
of the following offenses: conspiracy to distribute and to possess with
the intent to distribute crack cocaine, see 21 U.S.C. §§ 841(a)(1) and
846; distribution and possession with intent to distribute crack
cocaine, see 21 U.S.C. § 841(a)(1); using or carrying firearms during
and in relation to a drug trafficking crime, see 18 U.S.C. § 924(c)(1);
and possession of firearms and ammunition by a convicted felon, see
18 U.S.C. § 922(g)(1). The jury returned a guilty verdict against Wil-
son for the same crimes except that it deadlocked on the conspiracy
count, which the district court dismissed. Brown was convicted on
conspiracy, distribution and possession of crack, and using or carry-
ing firearms.

The evidence, viewed in the light most favorable to the govern-
ment, see United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993),
established the following. Anthony Geppi was the leader of a drug
organization in Norfolk, Virginia, that formed in early 1991 and con-
tinued until January 1995. The Geppi group operated out of various
residences and motel rooms in the Ocean View area of Norfolk.

                    3
Geppi distributed crack cocaine to various sellers, who took care of
retail sales and then returned some of the proceeds to Geppi. The
Geppi group pooled its resources to buy vehicles and shared access
to a weapons cache. Geppi testified that he fronted crack cocaine to
the appellants, Stotts, Brown, Fonville, and Wilson. Geppi's mother,
Lola Keubler, testified that when she went to Geppi's to collect
money from the drug sales she would see Stotts, Brown, and Fonville
there. Keubler said that on several occasions Stotts and Brown
accompanied Geppi to her trailer to get drugs and guns. Christopher
Sumler testified that he, along with Stotts, Brown, Fonville, and Wil-
son, obtained crack cocaine from Geppi. Sumler said that they would
sell the crack and give Geppi half the money. Finally, Christina
Withrow, Geppi's cousin, testified that she stayed at a residence in the
Ocean View area where Geppi and his group sold crack cocaine. She
said that Brown and Stotts also stayed at the residence and that Fon-
ville came there often. Withrow reported that crack cocaine was dis-
tributed from that location twenty-four hours a day, seven days a
week.

On October 27, 1994, police searched a house at 9549 20th Bay
Street, the location from which the Geppi group was operating at the
time. When the officers arrived, several persons in the Geppi organi-
zation were there, including Geppi himself and appellants Fonville,
Stotts, and Wilson. The police found four handguns, one shotgun, and
one assault rifle. In addition, they found 2.1 grams of crack cocaine
and drug paraphernalia such as scales and packaging materials.

II.

Stotts, Brown, and Fonville claim that the evidence was insuffi-
cient to establish that they conspired with Geppi and the other named
defendants. They say that at most they bought cocaine from Geppi
and sold it on their own, sharing no profits with the others. The evi-
dence is directly to the contrary. Moreover, there is no requirement
that the government prove a formal agreement to establish a conspir-
acy. "`To sustain [a] conspiracy conviction, there need only be a
showing that the defendant knew of the conspiracy's purpose and
some action indicating his participation.'" United States v. Brooks,
957 F.2d 1138, 1147 (4th Cir. 1992) (quoting United States v.
Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)).

                    4
        [O]ne may be a member of a conspiracy without knowing
        its full scope, or all its members, and without taking part in
        the full range of its activities . . . [C]ontemporary drug con-
        spiracies [can] contemplate[ ] . . . only a loosely-knit associ-
        ation of members linked by their mutual interest in
        sustaining the overall enterprise of catering to the ultimate
        demands of a particular drug consumption market.

United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc)
(citation omitted). We are satisfied that the evidence, which we sum-
marized above in part I, was sufficient to link Stotts, Brown, and Fon-
ville in an overall conspiracy with Geppi and others to supply the
drug market in the Ocean View area of Norfolk.

All four appellants argue that in light of Bailey v. United States,
116 S. Ct. 501 (1996), their convictions pursuant to 18 U.S.C.
§ 924(c)(1) should be reversed. Section 924(c)(1) imposes criminal
liability and mandatory prison time upon any person who "during and
in relation to any . . . drug trafficking crime . . . uses or carries a fire-
arm." In Bailey the Supreme Court held that "`use' must connote
more than mere possession of a firearm by a person who commits a
drug offense." Bailey, 116 S. Ct. at 506. Because the instructions
given here permitted the jury to find the appellants guilty of
§ 924(c)(1) crimes on the basis of mere possession, the government
conceded in its brief and at oral argument that the evidence did not
meet the Bailey standard. We therefore vacate the appellants'
§ 924(c)(1) convictions.

"Our nullification of the appellants' convictions under § 924(c)(1)
necessitates that we also vacate their sentences." United States v.
Hawthorne, 94 F.3d 118, 121-22 (4th Cir. 1996). In this connection,
we note that § 2D1.1(b)(1) of the Sentencing Guidelines calls for a
two-level increase when a dangerous weapon was possessed during
the commission of a drug offense. The district court did not consider
§ 2D1.1(b)(1)'s application because it cannot be applied along with
the mandatory sentences required under 18 U.S.C. § 924(c)(1). See
United States v. Clements, 86 F.3d 599, 601 (6th Cir. 1996) (noting
that if defendant is charged with and sentenced separately for using
and carrying a firearm in violation of 18 U.S.C. § 924(c), the two-
level enhancement for firearm possession pursuant to § 2D1.1(b)(1)

                      5
is not permitted so as to avoid double counting). Because the § 924(c)
convictions are vacated, we remand for resentencing and for consider-
ation of whether U.S.S.G. § 2D1.1(b)(1) should be applied. See
Hawthorne, 94 F.3d at 122 (vacating § 924(c) charges and noting that
government may pursue "possession" enhancement provided by
U.S.S.G. § 2D1.1(b)(1)); United States v. Lang, 81 F.3d 955, 963
(10th Cir. 1996) (stating that when defendant's conviction under
§ 924(c) has been reversed on sufficiency of the evidence grounds on
appeal, the case must be remanded for resentencing to determine the
applicability of the U.S.S.G. § 2D1.1(b)(1) enhancement).

Stotts, Fonville, and Wilson, all convicted felons, claim that there
was insufficient evidence to support their convictions for possession
of firearms in violation of 18 U.S.C. § 922(g)(1). Possession can be
either constructive or actual. The government makes no claim of
actual possession, so we must decide whether there was sufficient evi-
dence to establish constructive possession of firearms. Constructive
possession exists when the "defendant exercises, or has power to
exercise, dominion and control over an item." United States v. Wright,
991 F.2d 1182, 1187 (4th Cir. 1993). "[P]ossession does not have to
be exclusive, but can be shared with others." Id. at 1187. "Joint pos-
session occurs when both the defendant and another person share
power and intent to exercise dominion and control . . . ." United States
v. Georgacarakos, 988 F.2d 1289, 1296 (1st Cir. 1993). Geppi, the
leader, testified that the group kept guns at the various residences for
protection from robbery. He said that Stotts, Fonville, and Wilson had
access to those guns. This testimony, along with the other evidence
about their involvement in the group's activities, was sufficient for
the jury to conclude that Stotts, Fonville, and Wilson had the power
to exercise dominion and control over the firearms.

Finally, Wilson claims that the evidence was insufficient to support
his conviction for possession of 2.1 grams of crack cocaine with the
intent to distribute. This cocaine was found (during a police search)
under the carpet in the house at 9549 20th Bay Street, where Wilson
and several other defendants were when the search began. Wilson's
argument is based largely on the fact that the jury did not find him
guilty of conspiracy. Thus, he says, there is no way to find possession
based upon a theory of vicarious liability. See United States v. Lewis,
902 F.2d 1176, 1181 (5th Cir. 1990) (noting that cocaine possession

                    6
can be based upon vicarious liability for actions of co-conspirators).
With the conspiracy theory gone, Wilson argues that the evidence was
insufficient to demonstrate that he had any connection to the 2.1
grams of crack cocaine.

Police officers discovered the 2.1 grams of crack when they went
with an animal control officer to 9549 20th Bay Street to look for a
mean dog. When the officers arrived, they asked those in the house,
including Wilson and other defendants, to step outside. Robin White,
Wilson's girlfriend, told the officers that the house was leased in her
name and gave them consent to search. After the search was under
way, White withdrew her consent; the officers then obtained a search
warrant based on what they had already seen. When the search
resumed, the officers found six firearms, drug paraphernalia such as
scales and packaging materials, and the 2.1 grams of crack cocaine
underneath a carpet.

The government does not allege that Wilson actually possessed the
crack cocaine. Therefore, we must determine whether the evidence
was sufficient to support a jury finding that Wilson constructively
possessed the cocaine. Wilson was present at the house at 9549 20th
Bay Street, but "mere presence on the premises where drugs are
found, or association with one who possesses drugs, is insufficient to
establish the possession needed for conviction under 21 U.S.C.
§ 841(a)." United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.
1984). "Mere presence," however, is not the only evidence against
Wilson. Wilson's girlfriend, Robin White, rented the house for Geppi.
Although White testified that she did not live there, she was at the
house often and saw Wilson there on numerous occasions. More
importantly, White testified that Wilson, along with several others in
the Geppi group, used the house to sell crack cocaine received from
Geppi. As we have already noted, possession can be shared with oth-
ers. See Wright, 991 F.2d at 1187. Geppi testified that Wilson, among
others, had access to the guns located within the house. The jury
could have reasonably inferred that those who shared access to the
weapons also shared access to the drugs. Thus, in light of the drug
paraphernalia and guns found at 9549 20th Bay Street, Wilson's drug-
selling activities there, and the inferences that may be drawn from
Geppi's testimony about how the group operated, we are satisfied that

                    7
the evidence was sufficient to support Wilson's conviction for posses-
sion of crack cocaine with the intent to distribute.

III.

All four appellants contend that the district court erred when it cal-
culated the quantity of drugs attributable to them for sentencing pur-
poses. Section 1B1.3 of the Sentencing Guidelines states that "in the
case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in con-
cert with others, whether or not charged as a conspiracy), all reason-
ably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity" shall be considered.

The district court's calculations here included amounts distributed
by other members of the Geppi group. It attributed 2.629 kilograms
of crack cocaine to Stotts and 3.544 kilograms of crack cocaine to
both Brown and Fonville. These three appellants were right in the
middle of the Geppi group's activities. Geppi fronted all three with
crack cocaine; all three were routinely present at the various drug dis-
tribution locations around Ocean View; and all three contributed
money so that the group could buy vehicles. Thus, the district court
did not clearly err when it attributed to Stotts, Brown, and Fonville
quantities sold by other members of the Geppi group.

The district court attributed 2.005 kilograms of crack cocaine to
Wilson. Wilson claims that the court erred when it attributed to him
drugs distributed by other members of the group because the jury did
not convict him of conspiracy. The jury's failure to convict Wilson
of conspiracy is not dispositive. Section 1B1.3 specifically states that
the conduct of others engaged in a joint undertaking may be consid-
ered even if the defendant was not charged with conspiracy. While the
jury may not have been able to conclude beyond a reasonable doubt
that Wilson conspired with others, we think the evidence was suffi-
cient for the district court to conclude by a preponderance that Wilson
was engaged in a criminal endeavor with the other members of the
Geppi group. Therefore, the district court's drug calculation for Wil-
son is not clearly erroneous.

Finally, Calvin Fonville contends that the district court erred when
it denied him a two-level downward departure pursuant to U.S.S.G.

                    8
§ 3B1.2 for his minor role in the conspiracy. "A defendant seeking a
downward adjustment for his minor role in a criminal offense bears
the burden of proving by a preponderance of the evidence that he is
entitled to such an adjustment." United States v. Nelson, 6 F.3d 1049,
1058 (4th Cir. 1993). Fonville failed to carry this burden. The district
court found that Fonville was involved in the conspiracy on nearly a
daily basis, and the evidence supports this finding. Geppi testified that
Fonville sold for him. He also characterized Fonville as one of his
buddies and indicated that Fonville had access to the guns that were
only available to members of the group. Other witnesses identified
Fonville as a regular participant in the drug distribution activities.
Therefore, the district court did not err when it refused to give Fon-
ville a two-level downward departure under U.S.S.G. § 3B1.2.

IV.

For the foregoing reasons, we vacate each appellant's conviction
on the counts relating to 18 U.S.C. § 924(c)(1). Because of this, we
vacate their sentences and remand to the district court for resentenc-
ing and a determination of whether U.S.S.G. § 2D1.1(b)(1) should be
applied. We affirm the other convictions and reject appellants' other
challenges to their sentences.

AFFIRMED IN PART AND VACATED
AND REMANDED IN PART

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