                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4274


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MELVIN DARTFIELD CHRISTIAN, a/k/a Melvin D. Christian,

                Defendant - Appellant.



                             No. 11-4294


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MELVIN DARTFIELD CHRISTIAN, a/k/a Melvin D. Christian,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.     James R. Spencer, Chief
District Judge. (3:10-cr-00200-JRS-1; 3:03-cr-00387-JRS-1)


Submitted:   October 26, 2011              Decided:   November 4, 2011


Before MOTZ and    AGEE,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Caroline S. Platt, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard D. Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            In   No.   11-4274,     Melvin    Dartfield      Christian   appeals

from his convictions for possession with intent to distribute

cocaine base, possession of a firearm in furtherance of a drug

trafficking crime, and possession of a firearm by a convicted

felon, and his resulting 480 month sentence.                   In No. 11-4294,

Christian appeals from the revocation of his supervised release.

On appeal, Christian raises various claims in No. 11-4274, but

none in No. 11-4294.         Thus, he has waived any review of the

revocation of supervised release or the imposition of a sentence

in that case.     We affirm the criminal judgments in both cases.



                                       I.

            Christian first challenges the denial of his motion to

suppress the evidence found in his car.                He contends that the

dog sniff in his case was insufficient to establish probable

cause to search his car because (1) the dog Tyson was not well

trained    and   was   unreliable    and     (2)   Tyson’s     “alert”   was   not

distinguishable from a dog’s common behavior.

            The Supreme Court has held that a drug dog sniff is

not a search under the Fourth Amendment and a reliable dog alert

provides    probable     cause    that       illegal   drugs      are    present.

Illinois v. Caballes, 543 U.S. 405, 409-10 (2005).                 Moreover, we

have   rejected    a   requirement    that     “dog    alert    testimony      must

                                       3
satisfy the requirements for expert scientific testimony . . .

[because]       the   dog’s       alert   .     .   .    would    serve   not     as   actual

evidence of drugs, but simply to establish probable cause to

obtain    a     warrant      to    search     for       such     substantive    evidence.”

United States v. Allen, 159 F.3d 832, 839-40 (4th Cir. 1998).

We   have     not,     however,      specifically          addressed      what,    if   any,

evidence of a drug dog’s reliability must be offered.

              In      this    case,       the       Government       provided      evidence

regarding          Tyson’s         detailed             training      and       continuing

certification.          Moreover, Officer Rodney Womack testified that,

in 2010, Tyson looked for drugs 183 times.                            During that year,

she had at most three false positives, rendering her alerts over

98% accurate. 1          Similarly, while               Tyson failed isolated tests

during    her      certification      process,          she    was   certified     annually

since 2008 (and twice in 2010) by the Virginia State Police

after testing in various scenarios.                        Hence, even assuming that

we would require some evidence of a dog’s reliability before

permitting her alert to provide probable cause, the district


      1
       Probable cause is “a fair probability that contraband or
evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983).   Because probable
cause does not require certainty, a low percentage of false
positives is not fatal to the finding that a drug detection dog
is properly trained and certified. United States v. Scott, 610
F.3d 1009, 1014 (8th Cir. 2010), cert. denied, 131 S. Ct. 964
(2011).



                                                4
court’s implicit finding that Tyson was reliable was not clearly

erroneous.

              Turning to the issue of whether Tyson’s “alert” was

sufficient, Officer Womack testified that Tyson “turned her head

sharply,” went to the center post of the driver’s side of the

car,    squared       off   her        body    with    the       post,       turned        her    head

slightly, and “started running her nose and snorting at the same

time on the center post.”                     Womack testified that the head turn

alone    was     an    alert,      even        without       the       additional          behavior.

Christian       asserts        that      such        behavior          is        insufficient      to

constitute an “alert” and contends that lay witnesses did not

see the dog do anything abnormal.

              However,       the       credibility          of     a    dog’s           alert    rests

“almost       entirely      on     the    credibility             of    the        dog     handler’s

testimony      [b]ecause         the    handler       is    the    only          witness    who   can

speak    to    the    subjective         interaction          during         a    particular       dog

alert.”       United States v. Howard, 621 F.3d 433, 449 (6th Cir.

2010), cert. denied, 131 S. Ct. 1623 (2011).                                 As Officer Womack

was    trained    to    recognize         Tyson’s      alert,          the       fact    that    other

witnesses did not see Tyson do anything specific is of little

probative value.            Despite evidence and argument that Tyson did

not    actually       alert,     the     district          court   found          Officer       Womack

credible.        Thus, the district court’s determination that Tyson

alerted had a proper basis in the evidence and was not clearly

                                                 5
erroneous.      See United States v. Wilson, 624 F.3d 640, 659 (4th

Cir. 2010) (credibility determinations in a suppression hearing

are factual findings reviewed for clear error), cert. denied,

2011 WL 380987 (U.S. Oct. 17, 2011).

             Accordingly,         as   the    district         court’s      determinations

that Tyson alerted and that Tyson was a reliable and certified

drug   dog    were    not      clearly     erroneous,         the    dog   alert    provided

probable cause for the search.                    As such, the motion to suppress

was properly denied.



                                             II.

             Christian          next   challenges        the        sufficiency      of     the

evidence supporting the conclusion that he possessed the firearm

in question.         We review a district court’s decision to deny a

Rule 29 motion for a judgment of acquittal de novo.                                     United

States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                            A defendant

challenging        the       sufficiency     of    the    evidence         faces    a     heavy

burden.      United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997).      The verdict of a jury must be sustained “if, viewing the

evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’”                               Smith, 451

F.3d   at    216     (citations        omitted).          Substantial        evidence       is

“evidence     that       a    reasonable     finder      of    fact    could       accept   as

adequate and sufficient to support a conclusion of a defendant’s

                                              6
guilt beyond a reasonable doubt.”            Id. (internal quotation marks

and    citation   omitted).        Furthermore,      “[t]he    jury,   not     the

reviewing     court,   weighs   the    credibility    of    the   evidence     and

resolves any conflicts in the evidence presented.”                 Beidler, 110

F.3d at 1067 (internal quotation marks and citation omitted).

“Reversal for insufficient evidence is reserved for the rare

case where the prosecution’s failure is clear.”                   Id. (internal

quotation marks and citation omitted).

              A deficiency of proof on the element of possession

would invalidate both of Christian’s firearm convictions.                       To

show possession, the Government was not required to show that

Christian physically possessed the weapon.               See United States v.

Blue, 957 F.2d 106, 107 (4th Cir. 1992) (noting that, for a

felon in possession conviction, the Government may proceed on a

constructive possession theory demonstrating that the defendant

showed ownership, dominion, or control over the firearm).

              Here, viewing the evidence in the light most favorable

to the Government, the firearm was found in Christian’s car and

was easily accessible from the driver’s seat.                 The firearm had

Christian’s DNA on it, and Christian stated in open court before

a     state   magistrate   judge      that   the   car     contained   a     gun. 2


       2
       Christian cites United States v. Sanchez, 961 F.2d 1169,
1173 (5th Cir. 1992), for the proposition that, when “evidence
gives equal or nearly equal circumstantial support to a theory
(Continued)
                                        7
Moreover,   Christian     does    not    dispute       the    sufficiency            of   the

evidence    on   his   drug     trafficking     conviction,          and       an    expert

testified    that      street    level       dealers     often       use           firearms.

Additionally,     crack    cocaine      was    found     in    a    jacket          in    the

backseat    of   Christian’s     car    and    what    appeared          to    be    powder

cocaine was found on the gun.            We conclude that the evidence was

overwhelming that Christian possessed the firearm in question.

Accordingly,     the    district       court    did      not       err        in    denying

Christian’s motion for a judgment of acquittal on this basis.



                                        III.

            To convict Christian of violating 18 U.S.C. § 924(c)

(2006), the Government was required to prove that Christian:




of guilt and to a theory of innocence,” we must reverse as “a
reasonable factfinder must necessarily entertain a reasonable
doubt.” Christian avers that he testified at trial that Officer
Christopher Womack misquoted his statement in front of the
magistrate judge.    Thus, he claims that his word against the
officer’s places the case in equipoise.       However, Christian
actually misquotes Sanchez, which states that the above is true
only when the evidence is in equipoise after viewing the
evidence in the light most favorable to the Government.      Id.
Viewing the conflicting evidence in this case in the light most
favorable to the Government would be to assume that the jury
found Officer Womack more credible than Christian.    See United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (“The jury,
not the reviewing court, weighs the credibility of the evidence
and resolves any conflicts in the evidence presented, . . . and
if the evidence supports different, reasonable interpretations,
the jury decides which interpretation to believe.”).



                                         8
(i) committed     a    drug    trafficking     crime   and   (ii)    possessed   a

firearm in furtherance of that crime.              The first element is not

in dispute, but Christian asserts that there was insufficient

evidence that the firearm was possessed in furtherance of a drug

trafficking crime.            Whether a firearm furthered, advanced, or

helped forward a drug trafficking crime is a question of fact,

however.    United States v. Lomax, 293 F.3d 701, 705 (4th Cir.

2002).     Many factors might lead a reasonable trier of fact to

find a connection between a defendant’s possession of a weapon

and a drug trafficking crime.            Id.   These include:       “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.

            We    find    that    the    Government    presented      more    than

sufficient evidence from which the jury could conclude beyond a

reasonable doubt that Christian was guilty of possessing the

firearm in question in furtherance of a drug trafficking crime.

Christian’s possession of the firearm was illegal, as he had

been previously convicted of a felony and was prohibited from

possessing it.        In addition, the firearm was readily accessible,

found in the same car as 6.75 grams of cocaine base, and in

fact, appeared to have cocaine powder on it.                   Christian’s DNA

                                         9
was found on the gun and the jacket which had the drugs in it,

and   at   his   arrest,   Christian,       a    convicted         and    admitted    drug

dealer, had $4402 on him.             Also found in the car, which was

parked in a high crime and high drug area, were baggies and two

digital     scales.        Finally,    an       expert        on    drug     trafficking

testified that street-level drug traffickers (of which Christian

was one) commonly use handguns (the type of gun in this case) to

enhance their reputation, intimidate the competition, and for

retaliatory violence.         From these facts, there was sufficient

proof for the jury to conclude beyond a reasonable doubt that

Christian used the firearm to protect his cocaine supply and

drug proceeds.



                                       IV.

             Finally,   Christian      asserts      that       the       district    court

erred by failing to sentence him under the newly enacted Fair

Sentencing Act (“FSA”).             The district court determined that,

since Christian committed his crimes prior to enactment, the FSA

did not apply to him.             However, we have not yet addressed the

FSA’s      applicability     to     convictions         involving          pre-enactment

conduct, but post-enactment sentencing.                       See United States v.

Bullard, 645 F.3d 237, 248 n.5 (4th Cir.) (reserving judgment on

the   question    “whether    the     FSA       could    be    found       to   apply   to

defendants whose offenses were committed before August 3, 2010,

                                        10
but who have not yet been sentenced”), cert. denied, 2011 WL

4536465 (U.S. Oct. 3, 2011).                Nonetheless, error in failing to

apply the FSA was harmless, and both parties agree with this

conclusion. 3        Specifically, Christian’s drug conviction (the only

one affected by the FSA) is being run concurrently with his

felon in possession conviction.                  Thus, a reduced sentence on the

drug charge would not affect the length of time Christian will

spend in prison.            Regardless of what sentence he receives on the

drug count, Christian will be required to serve his forty-year

mandatory minimum sentence on the firearm charges.                      As such, his

substantial rights were not affected by any FSA error, and there

is no basis for remand.                 See United States v. Ellis, 326 F.3d

593,       599-600     (4th      Cir.    2003)     (holding    that     sentence     on

concurrent count that was above the applicable statutory maximum

did not affect the defendant’s substantial rights because he

received a life sentence on another count).

              Based         on   the     foregoing,     we    affirm        Christian’s

convictions,         revocation     of    supervised    release,      and   sentences.

We   dispense        with    oral   argument      because    the   facts     and   legal




       3
       Christian states that he raises the issue because, if his
firearm convictions are reversed, the FSA would affect his final
sentence.



                                            11
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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