                                                                      NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      _____________

                                           No. 19-1410
1                                        ______________

                                UNITED STATES OF AMERICA

                                                 v.

                                 ANTHONY MICHAEL COBB,
                                              Appellant
                                     ______________

                           Appeal from the United States District Court
                             for the Middle District of Pennsylvania
                                  (D.C. No. 1-17-cr-00080-001)
                           District Judge: Honorable Sylvia H. Rambo
                                        ______________

                        Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                       December 9, 2019
                                       ______________

                   Before: RESTREPO, ROTH, and FISHER, Circuit Judges.

                                    (Filed: February 20, 2020)
                                         ______________

                                            OPINION*
                                         ______________




           *
             This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
    does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Anthony Michael Cobb was convicted of six counts of drug and firearm

possession in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 922(g)(1), and 18 U.S.C. §

924(e). On appeal, Cobb argues that there was insufficient evidence that he possessed the

controlled substances and firearms. We disagree and will affirm the judgment sentencing

Cobb to 300 months’ imprisonment.

                                             I.

       Waynesboro police investigated Cobb for his suspected involvement in an April

2016 shooting. The investigation led police to execute a search warrant on his apartment,

where they found distributable amounts of cocaine base, cocaine hydrochloride, heroin,

oxycodone, drug paraphernalia, and a 12-gauge shotgun. Police also recovered a 20-

gauge shotgun and .22 caliber rifle from a storage unit Cobb rented. A grand jury

indicted Cobb for possession of firearms by a felon and possession of controlled

substances with the intent to distribute.

       At trial, the Government presented evidence that Cobb possessed the firearms

found in his apartment and storage unit. The evidence included Cobb’s admissions that:

(1) he cosigned the apartment searched by police, (2) he stayed at the apartment several

nights a week, (3) he knew about the 12-gauge shotgun found in one of the apartment’s

closets, (4) he rented the storage unit searched by police, and (5) he knew firearms were

stored in the storage unit. Ryan Troskoski also testified that Cobb instructed him to

retrieve firearms from the storage unit on the day of the shooting.



                                             2
       The Government also produced evidence that Cobb intended to distribute the

controlled substances found in his apartment. Cobb’s cotenant testified that Cobb

routinely gave crack cocaine to people in the apartment. She described seeing someone

purchase crack from Cobb in exchange for a Pennsylvania Access card. Police found the

Pennsylvania Access card in Cobb’s wallet.

       Following the jury’s guilty verdict on all counts, Cobb was sentenced to 300

months’ imprisonment on each count, to be served concurrently. Cobb now contends that

the jury did not have sufficient evidence to find beyond a reasonable doubt that he

possessed the drugs and firearms recovered by police.

                                             II.

       The Middle District of Pennsylvania had jurisdiction over Cobb’s criminal trial

pursuant to 18 U.S.C. § 3231, and we have jurisdiction over appeals arising from the

Middle District. 28 U.S.C. § 1291.

       We are “highly differential” to district courts when reviewing sufficiency appeals.

United States v. Caraballo-Rodriguez, 726 F.3d 418, 430–31 (3d Cir. 2013) (cautioning

that courts should not “usurp the role of the jury” unless the verdict falls “below the

threshold of bare rationality”) (citations omitted). “We must view the evidence in the

light most favorable to the Government and sustain the verdict if any rational juror could

have found the elements of the crime beyond a reasonable doubt.” United States v.

Cothran, 286 F.3d 173, 175 (3d Cir. 2002).1


       1
         The Government urges us to review the issue Cobb raises for plain error because
he did not preserve it at trial. See Fed. R. Crim. P. 52(b). Cobb concedes that plain error
                                              3
                                             III.

       There was sufficient evidence presented at trial for a rational juror to find that

Cobb possessed the drugs and firearms tied to the charges against him.

       It is well established that possession can be actual or constructive. See United

States v. Caldwell, 760 F.3d 267, 278 (3d Cir. 2014) (explaining that the Government

“can prove possession of a firearm for purposes of § 922(g)(1)” by actual or constructive

possession); United States v. Martorano, 709 F.2d 863, 866 (3d Cir. 1983) (“[W]hen a

defendant is charged with possession of a controlled substance . . . in violation of 21

U.S.C. § 841(a)(1), possession can be either actual or constructive.”). “[C]onstructive

possession requires an individual to have the power and intent to exercise both dominion

and control over the object he or she is charged with possessing.” United States v. Garth,

188 F.3d 99, 112 (3d Cir. 1999).

       A rational juror could find the testimony that Cobb sold drugs from his apartment,

which is where drugs were found, established that Cobb had dominion and control over

the drugs recovered by police. Similarly, a rational juror could determine that Cobb had

dominion and control over the firearms based on his admission that he knew guns were in




review applies to his claims. Under plain error review, Cobb must show that the District
Court “committed (1) error (2) that is plain (3) that affect[s] substantial rights.” United
States v. Adams, 252 F.3d 276, 285 (3d Cir. 2001) (alteration in original) (quotations
omitted). We have the discretion to notice a forfeited error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original)
(quotations omitted). Because Cobb has not established that an error occurred, he cannot
satisfy his burden under the plain error doctrine.
                                              4
his apartment and the storage unit along with Troskoski’s testimony that Cobb instructed

him to retrieve firearms from the storage unit.

        Cobb correctly points out that “mere proximity” to the drugs and firearms in

question is not sufficient to establish constructive possession. See United States v.

Brown, 3 F.3d 673, 680 (3d Cir. 1993). However, the Government adduced much more

evidence against Cobb than his proximity to the drugs and firearms. Reviewing the

evidence in a light most favorable to the Government, a rational juror could find that

constructive possession of controlled substances and firearms existed.

                                            IV.

        Accordingly, for the reasons stated above, we will affirm the judgment against

Cobb.




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