                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0471n.06
                            Filed: August 6, 2008

                                           No. 06-1737

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES,                      )
                                    )                 ON APPEAL FROM THE
            Plaintiff-Appellee,     )                 UNITED STATES DISTRICT
                                    )                 COURT FOR THE WESTERN
                                    )                 DISTRICT OF MICHIGAN
                                    )
THOMAS BEARD,                       )                 OPINION
                                    )
            Defendants-Appellants.  )
____________________________________)


BEFORE: MARTIN and NORRIS, Circuit Judges, and STAMP, Senior District Judge.*

       FREDERICK P. STAMP, JR., Senior District Judge.            Thomas Beard was charged in a

Fourth Superseding Indictment on various counts relating to his involvement in a conspiracy to

distribute heroin and cocaine in Lansing, Michigan. Mr. Beard pleaded not guilty and proceeded to

a jury trial. Following presentation of the government’s case and again at the close of all evidence,

counsel for Thomas Beard moved for a judgment of acquittal on Count 1, conspiracy to possess

and/or distribute heroin, and Count 2, possession with intent to distribute heroin. The motion was

ultimately granted as to Count 1, but denied as to Count 2. Thereafter, the jury returned a guilty

verdict on numerous counts, including Count 2. At sentencing, Thomas Beard received a within-

guideline sentence. Mr. Beard now challenges on appeal the denial of his motion for judgment of

acquittal as to Count 2 and the reasonableness of his sentence. For the reasons that follow, we


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                                                                                   United States v. Beard
                                                                                                 06-1737

AFFIRM the judgment of the district court, but remand for application of Amendment 706 to the

United States Sentencing Guidelines to the defendant’s sentence.

        We first consider Mr. Beard’s contention that the evidence presented at trial was insufficient

to establish that he had either actual or constructive possession of the heroin as charged in Count 2

of the Fourth Superseding Indictment. This Court reviews the sufficiency of the evidence produced

at trial in a light most favorable to the government and finds it lacking only if “‘no rational trier of

fact could have found proof of guilt beyond a reasonable doubt.’” United States v. Winston, 37 F.3d

235, 238 (6th Cir. 1994) (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)).

        In this case, there is sufficient evidence for a rational trier of fact to find constructive

possession beyond a reasonable doubt. Constructive possession is established by a showing that a

person “knowingly has the power and the intention at a given time to exercise dominion and control

over an object.” United States v. Newsom, 452 F.3d 593, 608 (6th Cir. 2006)(citations omitted). At

trial, officer testimony was received that on June 28, 2000, Mr. Beard was riding in the passenger

seat of a car that was involved in a chase with the Lansing Police. When the car was eventually

stopped, twelve packets of heroin were found on the passenger seat and the passenger floor area.

Additionally, officers observed several “bindles” of heroin stuck to the wet exterior of both sides of

the car, consistent with both the passenger and the driver throwing them from the moving vehicle.

Although Mr. Beard is correct that “mere proximity” to contraband is insufficient to establish

constructive possession, evidence of some other factor “‘including. . . a gesture implying control . . .

coupled with proximity may suffice.’” United States v. Newland, 243 Fed. Appx. 151, *3 (6th Cir.




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                                                                                       United States v. Beard
                                                                                                     06-1737

August 22, 2007) (citing United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003)). Here, the

evidence of Mr. Beard’s close proximity to the drugs, coupled with the evidence of his attempt to

dispose of the drugs (a gesture implying control), when viewed in a light most favorable to the

prosecution, is sufficient to show that the jury’s verdict as to Count 2 was supported by substantial

and competent evidence. Thus, Mr. Beard has failed to meet his “very heavy burden,” United States

v. Tocco, 200 F.3d 410, 424 (6th Cir. 2000), in challenging the sufficiency of the evidence to sustain

his conviction.

        Next, we consider the reasonableness of Thomas Beard’s sentence. Mr. Beard argues that

his sentence is unreasonable because the 100:1 guideline sentence disparity for crack cocaine

offenses and powder cocaine offenses is unconstitutional. Because it does not appear that Mr. Beard

raised this issue at the sentencing hearing, this Court, pursuant to Federal Rule of Criminal Procedure

Rule 52(b), reviews for plain error. Fed. R. Crim. P. 52(b)(“a plain error that affects substantial

rights may be considered even though it was not brought to the court’s attention”). “To establish

plain error, a defendant must show (1) that an error occurred in the district court; (2) the error was

plain, i.e., obvious or clear; (3) that the error affected defendant's substantial rights; and (4) that this

adverse impact seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Abboud, 438 F.3d 554, 583 (6th Cir.2006) (citations omitted).

        In this case, no plain error occurred at the district level because the law is well settled in this

Circuit that the 100:1 ratio withstands constitutional scrutiny. See e.g., United States v. Bingham,

81 F.3d 617, 630-31 (6th Cir.1996); United States v. Hill, 79 F.3d 1477, 1488-89 (6th Cir.1996);




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                                                                                  United States v. Beard
                                                                                                06-1737

United States v. Reece, 994 F.2d 277, 278-79 (6th Cir.1993); United States v. Tinker, 985 F.2d 241,

242 (6th Cir.1992); United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.1992); United States v.

Pickett, 941 F.2d 411, 418-19 (6th Cir.1991). Although Mr. Beard argues that this Court should

change its position regarding the constitutionality of the crack/powder sentencing disparity that is

present in the United States Sentencing Guidelines, it is inappropriate to reverse course on a plain

error review.

       For the foregoing reasons, we AFFIRM the judgment and the sentence imposed by the district

court. Nonetheless, we REMAND this case to the district court for consideration of the applicability

of Amendment 706 to the United States Sentencing Guidelines, which became effective on

November 1, 2007, subsequent to the imposition of the defendant’s sentence and to the notice of

appeal in this case. Amendment 706 decreases by two levels the base offense levels for crack

cocaine offenses, see U.S. Sentencing Guidelines Manual § 2D1.1 (2007), and has been made

retroactive beginning March 3, 2008. See U.S.S.G. § 1B1.10(c)(May 1, 2008). Accordingly, remand

is necessary for the district court to consider in the first instance whether a modification of Thomas

Beard’s sentence is warranted pursuant to 18 U.S.C. § 3582(c)(2).




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