                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4398


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

FREDERICK J. SMITH,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00032-RLW-1)


Submitted:    December 1, 2009              Decided:   December 18, 2009


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Michael A.
Jagels, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Frederick J. Smith appeals from his jury convictions

for    possession          with     intent        to      distribute        marijuana          and

possession of a firearm in furtherance of a drug trafficking

crime.    On appeal, he challenges the sufficiency of the evidence

supporting      his    convictions          and     the      denial    of    his       challenge

pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).                               We affirm.

              “A    defendant        challenging           the    sufficiency           of     the

evidence faces a heavy burden.”                        United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).       We review a sufficiency of the evidence challenge by

determining        whether,       viewing     the      evidence       in    the    light     most

favorable to the Government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

doubt.    United States v. Collins, 412 F.3d 515, 519 (4th Cir.

2005).        We    will    uphold      the       jury’s      verdict       if    substantial

evidence supports it and will reverse only in those rare cases

of    clear    failure      by    the   prosecution.             Foster,         507    F.3d    at

244-45.       We do not review the credibility of the witnesses and

assume    that      the     jury     resolved          all     contradictions           in     the

testimony in favor of the government.                      Id. at 245.

              To convict a defendant of possession with the intent

to distribute, the Government must prove knowing possession of a

controlled substance with the intent to distribute.                                     Collins,

                                              2
412 F.3d at 519.          To establish a 18 U.S.C. § 924(c)(1) (2006)

violation, the Government must present evidence “indicating that

the possession of [the] firearm furthered, advanced, or helped

forward a drug trafficking crime.”                United States v. Lomax, 293

F.3d 701, 705 (4th Cir. 2002).

             Smith first contends that he did not possess either

the   marijuana      or   the    firearm.       Possession   may   be   actual   or

constructive.        United States v. Rusher, 966 F.2d 868, 878 (4th

Cir. 1992) (possession of a controlled substance).                        When the

Government seeks to establish constructive possession, it must

prove that the defendant intentionally exercised dominion and

control or had the power and the intention to exercise dominion

and control over the item in question.                 United States v. Scott,

424   F.3d   431,     435-36     (4th    Cir.    2005).      Possession    may   be

established     by    circumstantial           evidence.     United     States   v.

Schocket, 753 F.2d 336, 340 (4th Cir. 1985).

             Here, viewing the evidence in the light most favorable

to the Government, the marijuana and firearm were in plain view

in a car in which Smith was the only occupant.                     Smith was also

found with marijuana and a substantial amount of cash on his

person, despite being unemployed.                Finally, Smith fled from the

police,   leading     them      on   a   dangerous    high-speed    chase.       The

combined evidence was easily sufficient for the jury to reach



                                           3
the   conclusion        that    Smith    was     in   possession          of     both    the

marijuana and the firearm.

            Next,       Smith    argues        that    there        was     insufficient

evidence to prove that the gun was used in furtherance of a drug

trafficking crime.         Whether a firearm served such a purpose is a

question of fact.         Lomax, 293 F.3d at 705.               A series of factors

that might lead a reasonable finder of fact to conclude the

existence of a connection between a defendant’s possession of a

firearm    and    his   drug    trafficking      crime        include,     but    are    not

limited to: “the type of drug activity that is being conducted,

accessibility of the firearm, the type of 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.”    Id.

            Here,       Smith    was    found     with      cash     proceeds      and     a

significant amount of marijuana, some of which was packaged for

individual sale; the semi-automatic firearm was loaded, within

reaching    distance,      and    sitting       on    top      of   a     large    bag    of

marijuana; and an expert witness testified that the firearm was

likely used in furtherance of drug trafficking.                         Given the Lomax

factors,    the    evidence      was    sufficient       to    support      the    firearm

conviction.       See id. at 706 (noting that court may arrive at

common sense conclusion that when someone is found with both

                                           4
drugs    and    a   firearm,         the       gun    is    present   to     further     drug

trafficking).

            Turning          to    Smith’s      Batson      challenge,     Smith      contends

that the Government improperly exercised two peremptory strikes

against black jurors when the reasons given applied with equal

or greater force to unchallenged white jurors.                               Specifically,

the first juror at issue was dismissed due to illness--she was

allegedly coughing, sweating, and sniffling.                          The second juror

was   dismissed         on    the    basis      of    his     unemployed     status.          In

district court, Smith did not point to any white jurors who were

sick or unemployed and were not stricken.                        Even on appeal, Smith

notes that “the record is silent on these points,” but contends

that “other members of the panel may well have had a cold or

been unemployed.”            (Appellant’s Br. at 20).

            The     Equal         Protection         Clause    forbids     the   use     of   a

peremptory challenge for a racially discriminatory purpose.                               See

Batson v. Kentucky, 476 U.S. 79, 86 (1986).                              We afford great

deference      to   a    district         court’s      determination       of    whether      a

peremptory challenge was exercised for a racially discriminatory

reason and review the district court’s rulings on that point for

clear error.            Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.

1995).

               Generally, a Batson challenge consists of three steps:

(1) the     defendant             makes    a     prima        facie   case       of    racial

                                                 5
discrimination;           (2)   the      Government         offers     a        race-neutral

explanation for its strikes; and (3) the trial court decides

whether       the    defendant      has      carried       its   burden         and   proved

purposeful discrimination.                 Purkett v. Elem, 514 U.S. 765, 767

(1995).       The second step of the Batson inquiry does not require

that    the    Government’s       proffered          rationale   for    the       strike    be

persuasive or even plausible.                   Purkett, 514 U.S. at 768.                  All

that is required is that the reason be race-neutral.                                  Id. at

768-69.

              At    the   third     step,      the    “defendant     may    rely      on   all

relevant      circumstances         to     raise      an   inference       of    purposeful

discrimination.”          Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(internal quotation marks omitted).                        While the defendant need

not “point to an identical juror of another race who was not

peremptorily challenged,” direct comparisons between similarly

situated       venire-persons         of     different       races     are        probative.

Golphin v. Branker, 519 F.3d 168, 179 (4th Cir.), cert. denied,

129    S.   Ct.     467   (2008).        The    ultimate     burden    to       demonstrate

purposeful discrimination remains always with the opponent of

the strike.          See Batson, 476 U.S. at 96-98; United States v.

McMillon, 14 F.3d 948, 953 & n.4 (4th Cir. 1994) (defendant must

show that the Government’s stated reason was pretextual and that

race was “real reason” for strike).



                                               6
              Here, the Government’s proffered reasons for striking

the prospective jurors--illness and unemployment--were clearly

race-neutral and are permissible bases upon which to strike.

See    Smulls    v.    Roper,    535    F.3d    853,   866     (8th     Cir.       2008)

(occupation      is    a   legitimate     race-neutral       reason    to     strike),

cert. denied, 129 S. Ct. 1905 (2009); United States v. Lane, 866

F.2d   103,     106    (4th    Cir.   1989)    (numerous     factors,        including

potential juror’s “general appearance and demeanor” may properly

influence       prosecutor’s      decision      to   strike).          Because       the

Government provided race-neutral explanations for its strikes,

the burden shifted to Smith to prove that the explanations given

were   pretext       for   discrimination      and   that    race     was    the   real

reason for the strikes.           McMillon, 14 F.3d at 953.                 This Smith

failed to do.         He relies only on conjecture that the panel “may”

have   included       others   similarly      situated.       Such    suppositions,

without any support whatsoever, are insufficient to show clear

error on the part of the district court.

              Based on the foregoing, we affirm Smith’s convictions.

We deny Smith’s motion to file a pro se supplemental brief.                          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

                                          7
