                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2008

USA v. Edge
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1882




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 06-1882


                            UNITED STATES OF AMERICA

                                             v.

                                     LAMAR EDGE,
                                             Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Criminal No. 03-cr-00216-2
                       District Judge: Honorable Barclay Surrick


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 9, 2007

        Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

                                 (Filed: January 14, 2008)


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Lamar Edge was charged with: conspiracy to possess with intent to distribute in

excess of fifty grams of cocaine base (“crack”) and to possess with intent to distribute

marijuana, 21 U.S.C. § 846 (Count 1); possession with intent to distribute or aiding and
abetting the possession with intent to distribute in excess of fifty grams of cocaine base

(“crack”), 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 (Count 2); possession

with intent to distribute or aiding and abetting the possession with intent to distribute

marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 (Count 3); carrying a

firearm or aiding and abetting the carrying of a firearm during and in relation to a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 (Count 4); and possession

in or affecting commerce of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (Count

5). Following a four-day trial, the jury found Edge guilty of Counts 1 through 4. In a

bench trial held immediately after the jury verdict, the District Court found Edge guilty

on Count 5.

          Edge challenges his convictions contending the evidence was insufficient to

support the verdict under Counts 1 through 5. He also challenges his sentence, asserting

the District Court improperly viewed the Sentencing Guidelines as mandatory. We will

affirm.

                                              I.

          Responding to a complaint about noise emanating from Apartment J-19 of the

Bishop Hill Apartments, Officer Brian Duffy encountered a woman with a young child at

the apartment door. At roughly the same time, David Haley, a maintenance worker, saw a

man jump from the balcony of Apartment J-19 and run away. Haley also saw two heads

“pop out” of the bedroom window of Apartment J-19 and retreat back inside. Haley



                                               2
reported this incident to Lane Murphy, a security officer at the apartment complex, who

called the police.

       While talking to the police, Murphy saw Edge and Dujuan Lewis leave Building J.

Murphy recognized both as men who would “come and go, all hours of the night,” from

Building J. Lewis was carrying boxes, and Edge was carrying a shopping bag from

Modell’s Sporting Goods. Murphy observed the two men place the boxes and the bag

into the trunk of a blue Oldsmobile parked outside of Building J. Lewis returned to the

building while Edge parked the car between Buildings K and L.

       Murphy described this conduct to Officer William Tobin and directed him to the

blue Oldsmobile. As Officer Tobin examined the license plate, Edge approached the car

and stopped suddenly when he saw Officer Tobin. Edge fled, ignoring Officer Tobin’s

commands to stop. Officer Tobin pursued Edge on foot and observed Edge jump into the

back of a maroon Buick.

       After a car chase, Officer Tobin, with the assistance of Officer Duffy, captured all

three occupants of the car: Edge, Lewis and Rashaun Yeiser. Placing them in custody,

the police returned to Apartment J-19 to check on the safety of the woman occupying the

apartment. Upon entering, Detective James Frey saw several containers in plain view

which appeared to hold marijuana. With this information, the officers obtained a search

warrant for drugs and drug paraphernalia. Executing the warrant, the officers found two

digital scales, various containers filled with marijuana, large quantities of bags commonly

used to package drugs, $6,000 in cash, and a box of nine millimeter handgun ammunition.

                                             3
       The officers also secured a warrant for the blue Oldsmobile. Executing the search

warrant, the officers found the plastic Modell’s bag earlier carried by Edge as well as the

boxes Lewis carried out of the building and placed in the trunk. The Modell’s bag held

one bag of crack cocaine, 341 bags of marijuana, white boxes holding plastic containers

filled with marijuana, and a semi-automatic pistol loaded with fifteen rounds of nine

millimeter ammunition. The boxes held plastic cubes containing marijuana and a large

quantity of clear plastic containers.

                                             II.

       When reviewing a challenge to the sufficiency of evidence, we review the

evidence in the light most favorable to the government and uphold the conviction “if any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999); see also

Rieger, 942 F.2d at 232 (“We ‘must sustain the verdict if there is substantial evidence,

viewed in the light most favorable to the [g]overnment, to uphold the jury’s decision.’”

(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).

       Edge contends there was insufficient evidence that he knowingly possessed the

drugs and the gun1 or that he agreed, knew or facilitated the underlying substantive

offenses. Both assertions lack merit.


   1
    Counts 2 and 3 require proof that the defendant knowingly possessed the drugs at
issue. See 21 U.S.C. § 841(a)(1). Under Counts 4 and 5, the government must prove that
the defendant knowingly possessed the firearm at issue. See 18 U.S.C. § 922(g)(1), §
924(c).

                                             4
                                              A.

       Edge contends he cannot be convicted under Counts 1 through 5 of the indictment

because each did not knowingly possess the required items. Knowing possession can be

established when the defendant has actual possession. See, e.g., United States v.

Blackston, 940 F.2d 877, 883 (3d Cir. 1991) (“A person who knowingly has direct

physical control over a thing, at a given time, is then in actual possession of it.”). There is

substantial evidence from which a rational jury could conclude that Edge knowingly

possessed the drugs and a gun. Edge carried a white Modell’s bag containing marijuana,

crack cocaine, and a loaded handgun from the J-Building to the trunk of the blue

Oldsmobile. The bag was made of thin plastic material and was open at the top. A

person handling such a bag would be able to see and know the bag’s contents.

       Moreover, evidence presented at trial linked Edge and the blue Oldsmobile to

Apartment J-19.2 Anyone in Apartment J-19 would have known and understood the

apartment to be a staging ground for drug distribution. Packages of marijuana, placed in

the hall closet and on the television stand, were in plain view. Further, police found a

digital scale and box of 9 millimeter shells in the dining room.

       Thus, there was substantial evidence for a rational jury to conclude beyond a

reasonable doubt that Edge knowingly possessed drugs and a firearm.


   2
     After Haley observed a person jump from the Apartment J-19 balcony, he saw two
black males look out the window of Apartment J-19. Soon thereafter, Edge and Lewis
left Building J and loaded the trunk of the blue Oldsmobile. In addition, documents
identifying Yeiser were found in both the blue Oldsmobile and Apartment J-19.

                                              5
                                             B.

       Edge contends there is insufficient evidence to convict on Count 1 – conspiracy to

possess with intent to distribute crack cocaine and marijuana – because the government

failed to prove an agreement or knowledge the containers he carried contained drugs.

       “The elements of a conspiracy may be proven entirely by circumstantial evidence,

but each element of the offense must be proved beyond a reasonable doubt.” United

States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004) (quoting United States v. Wexler,

838 F.2d 88, 90 (3d Cir. 1988)). “One of the requisite elements the government must

show in a conspiracy case is that the alleged conspirators shared a ‘unity of purpose’, the

intent to achieve a common goal, and an agreement to work together toward the goal.”

Cartwright, 359 F.3d at 286 (quoting Wexler, 838 F.2d at 90-91). “In order for us to

sustain a defendant’s conviction for conspiracy, the government must have put forth

evidence tending to prove that defendant entered into an agreement and knew that the

agreement had the specific unlawful purpose charged in the indictment.” Cartwright, 359

F.3d at 286-87 (quoting United States v. Idowu, 157 F.3d 265, 268 (3d Cir. 1998)).

       There is substantial evidence from which a rational jury could have concluded that

Edge was a participant in a conspiracy to possess with the intent to distribute crack

cocaine and marijuana. As noted, Edge knowingly and actually possessed the drugs.3


   3
    Edge attempts to analogize to cases finding insufficient evidence to support a
conspiracy conviction because the defendant was unaware of the contents of the illegal
transaction. See Cartwright, 359 F.3d at 290-91 (finding no evidence in the record that
                                                                             (continued...)

                                             6
Further, Edge acted in concert with Lewis to move the drugs and the firearm from

Apartment J-19 – a staging ground for drug distribution – to the blue Oldsmobile. Edge

drove the Oldsmobile away from Building J, and Edge, with the assistance of Lewis and

Yeiser, fled from the police. Based on his conduct and knowing possession of the drugs

and the firearm, a reasonable jury could rationally conclude Edge intentionally entered

into an agreement with the specific purpose to distribute crack cocaine and marijuana.

                                           III.




   3
    (...continued)
defendant had knowledge of the nature of the transaction and noting the lack of evidence
that defendant had ever been in possession of the cocaine); Idowu, 157 F.3d at 268-270
(finding the evidence insufficient to support the inference that defendant knew the
transaction involved drugs because defendant never heard specific reference to the subject
matter, nor did he see the drugs); United States v. Salmon, 944 F.2d 1106, 1112, 1114 (3d
Cir. 1991) (finding no evidence in the record that defendant Fitzpatrick, asked “to watch
[co-defendant’s] back,” knew the transaction concerned drugs); Wexler, 838 F.2d at 92
n.2 (finding insufficient evidence to support the conclusion that defendant knew the
contents “behind a closed truck door which he neither drove nor rode in”); United States
v. Terselich, 885 F.2d 1094, 1098 (3d Cir. 1989) (finding no evidence that defendant,
“shar[ing] driving chores and lodging with the driver of the vehicle,” knew that a secret
compartment in the trunk of the car contained drugs); United States v. Cooper, 567 F.2d
252, 254-55 (3d Cir. 1977) (finding insufficient evidence to support the conspiracy
conviction because no evidence suggested that defendant knew or had access to the
contents of the padlocked rear of a truck transporting marijuana). Each is distinguishable
because the evidence supports an inference that Edge saw drugs in apartment J-19 and
was in actual possession of drugs. Further, defendants in the aforementioned cases were
conducting surveillance or performing a secondary function. See Cartwright, 359 F.3d at
286 (“lookout”); Idowu, 157 F.3d at 267 (“driver” who carried the money); Wexler, 838
F.2d at 91 (“lookout”); Salmon, 944 F.2d at 1114 (“surveillance”); Terselich, 885 F.2d at
1098 (passenger who “shared driving chores and lodging” with driver); Cooper, 567 F.2d
at 254 (passenger who shared hotel room with convicted co-defendant). In contrast, the
conduct of Edge suggests a more involved role in the distribution of drugs.

                                            7
       In challenging his sentence, Edge contends the District Court improperly viewed

the Sentencing Guidelines as mandatory. Specifically, Edge asserts that the District Court

“believed that it had no discretion” to consider the differential between crack and powder

cocaine, citing United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), for support.

       We review the District Court’s interpretation of its legal authority at sentencing de

novo. United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005). We note, at the

outset, that the District Court imposed a sentence below the Advisory Guidelines, albeit

for reasons other than the crack/powder cocaine differential.4 The record demonstrates

the District Court clearly understood the mandate of United States v. Booker, 543 U.S.

220 (2005), and recognized its discretion with respect to the guidelines. The District

Court properly considered and then declined Edge’s request to vary from the guidelines

based on the differential. See Kimbrough v. United States, 2007 WL 4292040, at *5,

522 U.S. __ (2007) (holding that the “cocaine Guidelines . . . are advisory only”); Gunter,

462 F.3d at 249 (“[T]he District Court is under no obligation to impose a sentence below

the applicable Guidelines range solely on the basis of the crack/powder cocaine



   4
    Upon consideration of the 18 U.S.C. § 3553(a) factors such as Edge’s background,
education, family support, etc., the District Court acknowledged that it was departing
from the Advisory Guidelines and imposed the statutory mandatory minimum sentence.
See Gall v. United States, 2007 WL 4292116, at *7, 522 U.S. __ (2007) (instructing that a
district court “should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range . . . [then,] after giving both parties an opportunity [for
argument,] . . . the district judge should . . . consider all of the § 3553(a) factors[,] . . .
make an individualized assessment based on the facts presented[,] . . . [and] adequately
explain the chosen sentence to allow for meaningful appellate review. . . .”).

                                              8
differential.”); id. (“[D]istrict courts may consider the crack/powder cocaine differential

in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process.”).

        We see neither legal error nor an unreasonable sentence.

                                             IV.

        We will affirm the judgment conviction and the judgment of sentence of Lamar

Edge.




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