                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                     ______

                                        No. 12-4165
                                       ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  WILLIAM JACKSON,
                                                Appellant
                                     ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (No. 09-cr-00475-001)
                        District Judge: Hon. Norma L. Shapiro

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 10, 2014

          Before: CHAGARES, SHWARTZ, and ALDISERT, Circuit Judges.

                                   (Filed: July 31, 2014)
                                       ____________

                                         OPINION
                                       ____________

CHAGARES, Circuit Judge.

       A jury found William Jackson guilty of possession of cocaine base with intent to

distribute in violation of 21 U.S.C. § 841(a)(1), carrying a firearm in relation to a drug

offense in violation of 18 U.S.C. § 924(c)(1), possession of marijuana in violation of 21

U.S.C. § 844(a), and felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Jackson challenges his conviction on several grounds, arguing that: (1) the

District Court erred in denying his motion to suppress physical evidence; (2) the evidence

was insufficient to establish that Jackson possessed narcotics with the intent to distribute

or that he possessed a firearm in connection with a drug offense; and (3) the evidence was

insufficient to establish the interstate commerce element of the offense of felon in

possession of a firearm. For the reasons that follow, we will affirm Jackson’s conviction

on all counts.

                                             I.

       We write solely for the parties and therefore recite only the facts that are necessary

to our disposition.

       On December 7, 2006, at approximately 11:08 p.m., Philadelphia Police Officers

Randy Cole and Gerald Logan reported to Kellis, a bar in Philadelphia, in response to a

radio call relaying an anonymous informant’s tip regarding a black male wearing a black

Adidas hooded sweatshirt and fatigue pants and possessing a gun. Upon entering the bar,

the officers noticed Jackson, who was seated at the bar and was wearing a black Adidas

hooded sweatshirt and blue jeans. The officers approached Jackson and asked him if he

would accompany them to the back of the bar to talk, and Jackson agreed to do so. He

walked to the rear of the bar with Officer Logan beside him and Officer Cole directly

behind him. Officer Logan testified that, while walking to the back of the bar, he placed

his hand on Jackson’s shoulder. Officer Cole testified that he may have placed his hand

on Jackson’s back. Both officers testified that the touching was brief and intended to

guide Jackson through the crowd towards the back of the bar.

                                              2
       At some point after Officer Cole touched Jackson’s back, Jackson informed him

that he was carrying a firearm. Officer Cole was unable to recall whether this admission

occurred while his hand was still on Jackson’s back. When the officers and Jackson

reached the back of the bar, Officer Cole ordered Jackson to place his hands on the wall.

Officer Cole seized Jackson’s firearm, handcuffed him, and placed him under arrest.

       Outside the bar, Officer Logan searched Jackson and recovered forty-two small

ziplock baggies containing crack cocaine from his sweatshirt pocket. Officer Logan also

recovered a glass jar containing marijuana from Jackson’s sweatshirt pocket. Officer

Logan did not find any drug paraphernalia on Jackson.

       Before trial, Jackson moved to suppress his statement that he possessed a firearm,

as well as the firearm, the ziplock baggies of crack, and the glass jar of marijuana.

Jackson argued that the evidence must be suppressed because he was seized in violation

of his Fourth Amendment rights. The District Court denied Jackson’s motion. See

Appendix (“App.”) 2-7. After a three-day trial, a jury convicted Jackson on all counts.

Jackson moved for acquittal and arrest of judgment or, in the alternative, a new trial,

arguing that the denial of the motion of suppress was in error and the evidence underlying

his convictions was insufficient. The District Court denied the motion. See App. 9-21.

On November 1, 2012, the District Court sentenced Jackson to 101 months of

imprisonment and five years of supervised release. Jackson filed a timely appeal.

                                             II.1


1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              3
       We review a District Court’s denial of a motion to suppress for “clear error as to

the underlying factual findings and exercise[] plenary review of the District Court’s

application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.

2002) (citations omitted).

       “Sufficiency of the evidence is a question of law, subject to plenary review.”

United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012). A defendant claiming

insufficient evidence bears a heavy burden; this Court will overturn a verdict “only when

the record contains no evidence, regardless of how it is weighted, from which the jury

could find guilt beyond a reasonable doubt.” United States v. Riley, 621 F.3d 312, 329

(3d Cir. 2010) (quotation marks omitted). In making this determination, “we must view

the evidence in the light most favorable to the Government.” Id. (quotation marks

omitted). Ultimately, the verdict “must be upheld as long as it does not ‘fall below the

threshold of bare rationality.’” United States v. Caraballo-Rodriguez, 726 F.3d 418, 431

(3d Cir. 2013) (en banc) (quoting Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012)).

                                            III.

                                            A.

       Jackson first argues that the District Court erred in denying his motion to suppress

physical evidence. Specifically, he asserts that Officers Cole and Logan had already

seized him, in violation of his Fourth Amendment rights, when he told them he was

carrying a handgun.

       The Fourth Amendment provides that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures,

                                             4
shall not be violated.” U.S. Const. amend. IV. Evidence discovered during or pursuant

to an unreasonable search and seizure is inadmissible at trial as “fruit of the poisonous

tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). Accordingly, we

must determine whether Jackson was seized before he informed Officers Cole and Logan

that he possessed a firearm.2

       “A seizure occurs when there is either (a) a laying on of hands or application of

physical force to restrain movement, even when it is ultimately unsuccessful, or (b)

submission to a show of authority.” United States v. Brown, 448 F.3d 239, 245 (3d Cir.

2006) (quotations omitted). The test for “existence of a show of authority is an objective

one: not whether the citizen perceived that he was being ordered to restrict his

movement, but whether the officer’s words and actions would have conveyed that to a

reasonable person.” Id. (quotations omitted). A seizure does not occur, however,

“simply because a police officer approaches an individual and asks a few questions. So

long as a reasonable person would feel free to disregard the police and go about his

business, the encounter is consensual . . . . The encounter will not trigger Fourth

Amendment scrutiny unless it loses its consensual nature.” Florida v. Bostick, 501 U.S.

429, 434 (1991) (citations omitted); see also United States v. Mendenhall, 446 U.S. 544,

554 (1980). In Mendenhall, the Supreme Court provided a non-exhaustive list of

examples of “circumstances that might indicate a seizure,” including “the threatening


2
 The District Court found that the anonymous tip provided to Officers Cole and Logan
over the radio did not contain the “indicia of reliability” necessary to make a seizure
reasonable under Terry v. Ohio, 392 U.S. 1 (1968). App. 4. The parties do not dispute
this holding.
                                              5
presence of several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice indicating

that compliance with the officer’s request might be compelled.” 446 U.S. at 554.

Jackson asserts that the facts that the officers approached him, asked him to go to the

back of the bar, and placed their hands on his back and shoulders indicate that he was

seized by the officers before he stated that he had a handgun, such that any physical

evidence obtained after this seizure is inadmissible.

       An analysis of the facts demonstrate that Jackson’s argument is without merit.

The District Court found, and Jackson does not dispute, that the officers placed their

hands on Jackson’s shoulder and back only after he had already agreed to accompany

them to the back of the bar. The initial encounter, accordingly, was consensual. The

District Court further found, and this Court agrees, that, as the bar was crowded, the

touching could reasonably be seen as an attempt to communicate with and guide Jackson

in a noisy environment. There is no indication in the record that Jackson attempted to

flee, or that the officers attempted to restrain him in any way. Merely placing a hand on

Jackson’s shoulder and back to guide him through a crowded bar, without more, is

insufficient to shift the nature of the interaction from consensual to involuntary.

       In addition, taking into consideration the Mendenhall factors, the evidence reflects

that the two officers were the only officers present, that they did not brandish weapons,

and that they did not use language or a tone of voice indicating that Jackson’s compliance

might be compelled. See id.



                                              6
       Although Jackson asserts that no reasonable person would feel free to ignore a

request from police officers, the Supreme Court has stated that “[w]hile most citizens will

respond to a police request, the fact that people do so, and do so without being told they

are free not to respond, hardly eliminates the consensual nature of the response.” INS v.

Delgado, 466 U.S. 210, 216 (1984). To hold otherwise would threaten the ability of law

enforcement officials to approach people and ask questions in the course of their duties.

       Accordingly, we hold that it was not error for the District Court to deny Jackson’s

motion to suppress physical evidence.3

                                            B.

       Next, Jackson argues that the evidence was insufficient to establish that (1)

Jackson possessed cocaine base with the intent to distribute, and (2) Jackson possessed a

firearm in relation to a drug offense.

                                             1.

       In order to prove possession with intent to distribute, the Government must prove

beyond a reasonable doubt that a defendant: (1) possessed a controlled substance; (2)

knew that the substance he possessed was a controlled substance; and (3) intended to

distribute the controlled substance. See United States v. Kim, 27 F.3d 947, 959 (3d Cir.




3
 Jackson cites several cases for the proposition that he was seized when the officers
asked him to accompany them to the back of the bar and placed their hands on his
shoulder and back. See Jackson Br. 21-22. However, in each of the cited cases, the
officers acted in an attempt to restrict the defendants’ movements. Here, the officers did
not attempt to restrict Jackson’s movement; indeed, they had no reason to do so, as
Jackson consented to accompany them to the back of the bar.
                                             7
1994). The Government may prove both possession and intent to distribute through

circumstantial evidence. United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002).

       Officer Logan found 42 individually bagged packets of crack cocaine on Jackson.

Detective Chris Marano, the Government’s expert, testified that, in his experience as an

undercover narcotics officer, the possession of 42 packets of crack cocaine is consistent

with an intent to distribute. He testified that individual users of crack only carry up to

nine packets at once, and more than that would put the user at risk of being robbed.

Detective Marano also testified that individual users could obtain more crack for a

cheaper price by purchasing it in bulk, rather than in individual packets.

       Officers Cole and Logan testified that they did not find any paraphernalia for

personal use when they searched Jackson, although Officer Cole admitted it would be

“possible” to use the glass jar to vaporize crack. However, the jar did not have burn

marks on it. Detective Marano testified that a jar with no charred ends containing

marijuana could, but likely would not be, used as a crack pipe, because the user would

burn his or her fingers when the glass heats. Detective Marano also testified that

Jackson’s possession of an expensive firearm was consistent with a finding that he was a

distributor, not a personal user.

       Jackson points out that the officers did not observe him selling crack and did not

conduct any controlled buys. He also notes that the officers found no money on him, and

one would expect to find money on a drug distributor. However, viewing the record as a

whole in the light most favorable to the Government, this evidence is more than sufficient



                                              8
to support Jackson’s guilty verdict on possession of crack cocaine with intent to

distribute.

                                              2.

       To sustain a conviction under 18 U.S.C. § 924(c)(1), the Government must prove

beyond a reasonable doubt that, in addition to possession with intent to distribute,

Jackson knowingly carried a firearm during and in relation to drug trafficking activity.

United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006). Jackson does not dispute that

he carried a firearm, but maintains that the evidence was insufficient for a reasonable jury

to find that he carried it during and in relation to a drug offense.

       The mere presence of a firearm is insufficient to sustain a conviction under 18

U.S.C. § 924(c)(1). United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). Rather,

the Government “must show that the firearm was possessed by the defendant to advance

or promote criminal activity.” Bobb, 471 F.3d at 496. In making this determination,

relevant, nonexclusive factors to consider include “‘the type of drug activity that is being

conducted, accessibility of the firearm, the type of the weapon, whether the weapon is

stolen, the status of the possession (legitimate or illegal), whether the gun is loaded,

proximity to drugs or drug profits, and the time and circumstances under which the gun is

found.’” Sparrow, 371 F.3d at 853 (quoting United States v. Ceballos-Torres, 218 F.3d

409, 414-15 (5th Cir. 2000)).

       The officers found a loaded gun on Jackson, who was also in possession of

marijuana and a substantial amount of crack cocaine at the time. Accordingly, the gun

was in close proximity to the drugs, and was easily accessible to Jackson. Detective

                                               9
Marano testified that the gun was a Desert Eagle 45, a “nice gun” that would go for

$1,000 on the street. App. 122. He also testified that “[g]uns and drugs go together.”

App. 148. In addition, Jackson’s possession of the firearm was illegal, as he had

previously been convicted of a felony. This evidence is sufficient to sustain Jackson’s

conviction under 18 U.S.C. § 924(c)(1).

                                             C.

       Finally, Jackson argues that the evidence was insufficient to establish the interstate

commerce element of 18 U.S.C. § 922(g)(1), felon in possession of a firearm. 18 U.S.C.

§ 922(g)(1) provides that persons who have been convicted of crimes punishable by

imprisonment for over one year cannot, among other things, “receive any firearm or

ammunition which has been shipped or transported in interstate or foreign commerce.”

       It is undisputed that the firearm possessed by Jackson was manufactured in Israel

and imported into Minnesota, and, accordingly, has traveled in foreign and interstate

commerce. Although Jackson argues that this is insufficient to prove the interstate

commerce element of 18 U.S.C. § 922(g)(1), he acknowledges that this Court rejected

that argument in United States v. Singletary, 268 F.3d 196 (3d Cir. 2001). In Singletary,

we held that proof that a “gun had traveled in interstate commerce, at some time in the

past, was sufficient to satisfy the interstate commerce element” of 18 U.S.C. § 922(g)(1).

Id. at 205. We are, accordingly, bound by this Court’s precedent to find that the evidence

was sufficient to satisfy the interstate commerce element here, and Jackson raises this

argument only to preserve it for purposes of appeal.

                                            IV.

                                             10
      For the foregoing reasons, we will affirm the District Court’s judgment of

conviction.




                                          11
