                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4585


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSEPH ALLEN SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:10-cr-00438-LMB-1)


Submitted:   November 30, 2011            Decided:   December 8, 2011


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Peter D. Greenspun, Amy L. Bradley, GREENSPUN SHAPIRO, P.C.,
Fairfax, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Andrew J. Ewalt, Special Assistant United
States Attorney, Gene Rossi, Assistant United States Attorney,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Joseph          Allen    Smith        was       indicted        on    one     count    of

conspiracy to distribute oxycodone in violation of 21 U.S.C.

§§ 841(a)(1),            846    (2006),        and       one    count     of    possession       of    a

firearm      in     furtherance         of     the       conspiracy       in    violation       of    18

U.S.C. § 924(c) (2006).                      Smith pled guilty to the conspiracy

count, and was tried in a bench trial and convicted of the

§ 924(c) count.            Smith was sentenced to a term of one month on

the    conspiracy              count,     to       be      followed        by        sixty     months’

incarceration on the § 924(c) count.

               On    appeal,           Smith      contends         that        the    evidence       was

insufficient to convict him of possession of a firearm, a Taurus

handgun, in furtherance of the drug conspiracy.                                       This court is

obliged to sustain a guilty verdict if, viewing the evidence in

the    light       most    favorable         to      the       Government,          the    verdict    is

supported by substantial evidence.                             United States v. Burgos, 94

F.3d    849,       862    (4th    Cir.       1996)        (en    banc)    (citing          Glasser    v.

United       States,       315    U.S.       60,     80        (1942)).         We    have     defined

“substantial evidence” as “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.”

Burgos, 94 F.3d at 862.                   The court “consider[s] circumstantial

as    well    as    direct       evidence,         and     allow[s]       the        government      the

benefit of all reasonable inferences from the facts proven to

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those sought to be established,” United States v. Tresvant, 677

F.2d   1018,        1021    (4th    Cir.     1982),      and    assumes     that    the     fact

finder resolved all contradictions in the testimony in favor of

the Government.             United States v. Brooks, 524 F.3d 549, 563 (4th

Cir.     2008).            “[A]s     a     general       proposition,        circumstantial

evidence       may    be    sufficient       to       support   a   guilty       verdict    even

though     it        does     not        exclude       every    reasonable         hypothesis

consistent with innocence.”                  United States v. Osborne, 514 F.3d

377,     387    (4th        Cir.    2008)     (alteration           and    quotation       marks

omitted).       We “can reverse a conviction on insufficiency grounds

only when the prosecution’s failure is clear.”                             United States v.

Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal

quotation marks and citation omitted).

               In    order     to    prove        a    violation      of    §    924(c),     the

Government was required to present evidence indicating that the

possession of the firearm furthered, advanced, or helped forward

a drug trafficking offense.                       See United States v. Perry, 560

F.3d 246, 254 (4th Cir. 2009).                         In making this determination,

the factors to be considered include the type of drug activity

being conducted, the accessibility of the firearm, the type of

weapon, whether the weapon is stolen, whether the possession of

the weapon is legal or illegal, whether the weapon is loaded,

proximity       to     drugs        and     drug       profits,      and    the     time     and

circumstances under which the weapon was found.                            Id.

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           Our review of the record discloses that the evidence

was sufficient to support the finding that Smith possessed the

firearm in furtherance of the drug conspiracy.                               The evidence

revealed   that       Smith   dealt    drugs     from   his    home      and        that   the

handgun in question was found on Smith’s nightstand, and thus

was easily accessible.              The gun was found within inches of a

plastic baggie containing loose Xanax pills, which the evidence

at trial showed were also sold as part of the conspiracy and in

that same packaging.           Further, Smith made statements to a law

enforcement       officer     and      to   a    jail      inmate        in     which       he

acknowledged      keeping     the     handgun    for    protection           against       drug

customers who might come to the house to rob him.                            Smith did not

legally possess the handgun, and the evidence showed that he

applied    for    a    concealed       weapon     permit      at    a        time    in    the

conspiracy when drugs were being sold from his home.

           We therefore find the evidence sufficient to support

Smith’s    §     924(c)   conviction.            Accordingly,           we     affirm      the

judgment of the district court.                 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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