                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4651


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JASON MARVIN SAUNDERS,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:15-cr-00002-RAJ-DEM-1)


Submitted:   July 22, 2016                 Decided:   August 24, 2016


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Rodolfo Cejas, II,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney,   Alexandria,  Virginia,   Andrew   Bosse,  Joseph E.
DePadilla, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Jason Saunders was indicted on eleven counts of various

drug and firearm offenses.                A jury convicted Saunders on ten of

the   eleven    counts       and    the    district    court      sentenced       him    to

480 months’ imprisonment.             Saunders raises two issues on appeal.

First, Saunders challenges two of his convictions: (1) one count

of possession of a firearm in furtherance of a drug-trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A), and (2) one

count of being a felon in possession of a firearm, in violation

of    18    U.S.C.    §     922(g)(1).       He   argues     that       the    government

presented insufficient evidence to prove the possession element

of those offenses.           Second, he contends that the district court

erred by providing an incomplete jury instruction regarding co-

conspirator liability, otherwise known as Pinkerton liability.

For   the    reasons       that    follow,   we   conclude     that      the    jury    had

sufficient evidence to convict Saunders on the relevant charges,

and that the district court did not err by giving an incomplete

jury instruction.          We therefore affirm.



                                             I.

                                             A.

      On February 6, 2014, police executed a search warrant at an

apartment     Saunders       and    his   brother     used   as     a   base    for    drug

manufacturing        and    distribution.         Saunders,       his     brother,      his

                                             2
associates, several drug customers, and the man who owned the

apartment were present before and during the raid.                          Detective

Ken Adams led a group of officers through the back entrance of

the house.       Before Adams and his team could secure the back

door, Saunders’s brother and two other occupants had run out of

it.     Adams   and    his    team    of     officers    apprehended     Saunders’s

brother, but were unable to catch the other escapees.                            Adams

then entered the house through the back door, which opened into

the kitchen.

      Police had already secured the house when Adams entered the

kitchen, where he found Saunders and another man lying face-down

in handcuffs on the floor.            The kitchen was small, approximately

seven   by    twelve   feet.         Adams     saw   a   black    handgun    next   to

Saunders’s left foot, and a plastic bag containing individual

capsules of heroin to the right of his feet.                     In addition to the

handgun, police found multiple bags of cocaine and an assortment

of    other   drugs,     along   with      tools     used   to     manufacture      and

distribute      drugs,       including       a   cutting     agent,      Pyrex-type

glassware, strainers, a digital scale topped with rocks of crack

cocaine, and sandwich bags.

      Police discovered another handgun under a couch cushion in

the living room, along with various drugs and a digital scale.

Saunders was arrested after the raid, but was later released on



                                           3
bond.   He   resumed   selling   drugs     shortly   thereafter     and    was

arrested again on August 23, 2014.

                                     B.

     On January 7, 2015, a federal grand jury indicted Saunders

on eleven counts of various drug and firearm offenses.               Saunders

moved for a judgment of acquittal on two counts under 18 U.S.C.

§§ 924(c)(1)(A)     and 922(g)(1),    contending     that    the   government

failed to prove that he possessed a firearm during the police

raid conducted on February 6, 2014.

     The district court denied the motion, finding that the jury

could determine the question of possession based upon evidence

presented by the government at trial.             That evidence included

testimony that: (1) Saunders, his brother, and his associates

participated in multiple drug transactions where they possessed

and revealed firearms to their buyers, J.A. 113-18; (2) Saunders

typically manufactured and sold drugs while in possession of a

firearm,     J.A.   269,   274-75;       (3)   Saunders     sold   drugs    to

approximately four people in the hour preceding the police raid,

and that he conducted his business from the kitchen, where he

and the firearm were discovered.           J.A. 271; and (4) the firearm

Saunders carried resembled the one found at the scene, J.A. 157.

     The jury convicted Saunders on the charges in question and

the district court sentenced him to 480 months’ imprisonment.

This appeal timely followed.

                                     4
                                              II.

      This court reviews de novo a district court’s denial of a

Rule 29 motion for judgment of acquittal.                              United States v.

Smith,    451     F.3d   209,      216      (4th    Cir.     2006).      When       reviewing

challenges       to   the    sufficiency        of     the   evidence,        we    determine

whether      “any     rational      trier      of    fact      could    have       found    the

essential elements of the charged offenses beyond a reasonable

doubt.”         Jackson v. Virginia, 443 U.S. 307, 319 (1979).                                A

jury’s verdict must be upheld if there is substantial evidence,

viewed in the light most favorable to the government, to support

it.   Burks v. United States, 437 U.S. 1, 17 (1979).                                 We must

consider     circumstantial           and     direct    evidence,        and   “allow       the

government the benefit of all reasonable inferences.”                                    United

States     v.    Tresvant,         677   F.2d       1018,      1021    (4th    Cir.        1982)

(citations omitted).           We have held that uncorroborated testimony

of a single witness may be sufficient evidence, even if that

witness is an accomplice or an informant.                        See United States v.

Wilson, 115 F.3d 1185, 1189-90 (4th Cir. 1997).                                In light of

these considerations, “[a] defendant challenging the sufficiency

of the evidence to support his conviction bears a heavy burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).

      This      court       reviews      de    novo      the     claim     that      a     jury

instruction         failed    to     correctly         state     the    applicable          law.

United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).

                                               5
Saunders did not raise his objection to the district court’s

instruction before the jury began its deliberation; therefore,

this court’s review is for plain error.                          See United States v.

Olano, 507 U.S. 725, 732 (1993); see also Fed. R. Crim. P.

30(d), 52(b).         This court has discretion to correct a forfeited

error if it is “plain” and “affects substantial rights.”                                Id.

       We   first    address           Saunders’s      sufficiency      of    the       evidence

challenge       to        his     convictions          under     §§ 924(c)(1)(A)               and

922(g)(1).           We     then       address       Saunders’s       challenge         to     the

completeness of the district court’s jury instruction.

                                               A.

       Saunders       appeals           his      convictions          under        18    U.S.C.

§§ 924(c)(1)(A) and 922(g)(1).                   For the reasons stated below, we

find that the evidence presented to the jury was sufficient to

find constructive possession of the firearm.

       Both offenses have an element of possession that must be

proved      beyond    a    reasonable         doubt     before    a    defendant         can    be

convicted.        Actual         possession      is    not    necessary       to    sustain      a

conviction        for           possession;          constructive        possession             is

sufficient.       See United States v. Branch, 537 F.3d 328, 342-43

(4th   Cir.    2008).            The    government      set    forth    no    evidence         for

actual      possession;           therefore,          the     issue    is     whether          the

government presented sufficient evidence such that any rational



                                                 6
trier of fact could find beyond a reasonable doubt that Saunders

constructively possessed the firearm.

      Constructive          possession         exists     when        the        defendant

exercises, or has the power to exercise, dominion and control

over the item.        See United States v. Gallimore, 247 F.3d 134,

137 (4th Cir. 2001).           Constructive possession may be proved by

either     circumstantial      or    direct     evidence.         United        States       v.

Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980).                         Furthermore, a

jury “[may] consider proximity as part of [its] analysis of a

defendant’s       constructive        possession.”              United         States        v.

Schrader,     675    F.3d    300,     308-09     (4th    Cir.    2012).              However,

proximity     alone    is     not    enough      to     determine      a       defendant’s

dominion or control over an item.                  Laughman, 618 F.2d at 1077.

Rather,     “where     other        circumstantial        evidence         .     .     .     is

sufficiently      probative,        proximity     to    contraband         coupled         with

inferred knowledge of its presence will support a finding of

guilt.”     Id. (quoting United States v. Whitmire, 595 F.2d 1303,

1316 (5th Cir. 1979)).

      Here, the government points to Saunders’s close proximity

to   the   firearm,    as    well     as   other      direct    and    circumstantial

evidence     to     prove    possession.           At    trial,       the       government

introduced four cooperating witnesses who described the way that

Saunders     conducted      drug-related        activities.           Testimony         by    a

regular buyer placed Saunders and his associates at multiple

                                           7
drug     transactions        where     they       possessed      firearms.          One   of

Saunders’s      associates        testified       that    Saunders     would      typically

manufacture and sell drugs while in possession of a firearm.

The associate also revealed that Saunders was in the kitchen

selling drugs on the night of February 6, and that he had sold

to   approximately        four    individuals        in    the   hour      preceding      the

raid.     Finally, another regular buyer testified that the firearm

found at the scene resembled one Saunders typically carried.

       Despite     this      evidence,        Saunders        takes   issue      with     the

government’s heavy reliance on his proximity to the firearm.                               He

contends    that,      because       the   government         presented     a     “lack    of

evidence concerning just how [he] came to be on the ground . . .

the probative value of [his] proximity to the gun is minimal at

best.”     Appellant’s Supp. Br. at 4.                    Saunders also takes issue

with the number of individuals found at the scene during the

raid, contending that “the gun could have been dropped by any

number of people present or fleeing the apartment.”                             Appellant’s

Supp.     Br.    at     6.           Saunders       argues       that,      under       these

circumstances,        the    jury    would     have      to   rely    on   impermissible

speculation to conclude that he knew about the firearm in the

kitchen and had dominion and control over it.

       Saunders’s     arguments        ignore      the    importance       of    the    other

evidence    presented        at   trial.          Trial    testimony       established      a

nexus    between      Saunders’s        habit       of    gun    possession       and     his

                                              8
involvement in drug-related activities.                       It follows, therefore,

that the jury could reasonably conclude that as Saunders was

selling drugs on February 6, while surrounded by tools used to

manufacture drugs and associates who helped him sell drugs, that

he was aware of the firearm’s presence in the apartment.                              It is

true that the government relied heavily on Saunders’s proximity

to   the     firearm     to    prove     its    case,      despite     limited     evidence

describing how that proximity was created.                           However, as noted

above, proximity to a firearm coupled with inferred knowledge of

its presence can support a finding of guilt.                         Laughman, 618 F.2d

at 1077.         The jury’s determination of guilt need not be reversed

because of the government’s heavy reliance on proximity, as the

jury        could       have        reasonably        concluded         that       Saunders

constructively          possessed      the     firearm       in   light      of   testimony

brought by the government at trial.

       In    sum,      the    district      court    correctly       denied       Saunders’s

motion for judgment of acquittal on the two counts, because the

government presented sufficient evidence allowing the jury to

conclude beyond a reasonable doubt that Saunders constructively

possessed        the   firearm      found    at     the    apartment    on    February   6,

2014.

                                               B.

       Next, we address Saunders’s claim that the district court

erred       in    giving       an    incomplete           instruction     on      Pinkerton

                                               9
liability.         Here,    we      must    determine          if   the       jury      instruction

contained a plain error, and if so, how to correct it.                                      For the

reasons stated below, we find no error.

      “[T]o    reverse        for    plain       error        the   reviewing            court   must

(1) identify an error, (2) which is plain, (3) which affects

substantial         rights,        and     (4)        which     seriously            affects     the

fairness,      integrity            or      public           reputation            of      judicial

proceedings.”         United States v. Brewer, 1 F.3d 1430, 1434-35

(4th Cir. 1993).           This court rarely finds plain error, reserving

such analysis for those circumstances “in which a miscarriage of

justice would otherwise result.”                        United States v. Young, 470

U.S. 1, 15 (1985); accord United States v. Jarvis, 7 F.3d 404,

410   (4th    Cir.     1993).             “[O]nly       if     in   the       context       of   the

proceedings,        taken     as     a    whole,       the     error      .    .     .    seriously

affected the fairness, integrity or public reputation of the

judicial proceedings should we exercise our discretion . . . to

notice it.”         United States v. Cedelle, 89 F.3d 181, 184-85 (4th

Cir. 1996).

      Here, we have already held that the government presented

sufficient         evidence        for     the        jury     to    consider            Saunders’s

liability based on constructive possession.                               Saunders does not

challenge     the     district           court’s       administration              of     the    jury

instruction         regarding            constructive           possession.              Therefore,

because      the     jury     could        reasonably          conclude         that       Saunders

                                                 10
constructively    possessed     the    firearm,          there    is     no   need   to

consider   Pinkerton   liability.           Even    if    the     jury    instruction

demonstrates a plain error, we decline to notice it because it

did not affect “the fairness, integrity or public reputation of

the   judicial   proceedings”    in    the       district        court.       Cedelle,

89 F.3d at 184-85.



                                      III.

      For the foregoing reasons, we affirm the district court’s

decision and find that it did not err by giving an incomplete

jury instruction.      We dispense with oral argument because the

facts   are   adequately   presented        in     the    materials       before     the

court, and argument would not aid the decisional process.

                                                                              AFFIRMED




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