                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 03-4760
RICHARD CHARLES DALEY,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
              James C. Cacheris, Senior District Judge.
                           (CR-02-251)

                      Submitted: July 21, 2004

                      Decided: August 19, 2004

    Before WIDENER, KING, and DUNCAN, Circuit Judges.



Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.


                            COUNSEL

Gary H. Smith, Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Michael J. Elston, Michael C. Wallace, Sr.,
Assistant United States Attorneys, Richmond, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. DALEY
                              OPINION

PER CURIAM:

   Richard Charles Daley ("Daley") appeals his convictions and sen-
tences following a jury trial for two counts of conspiracy to distribute
cocaine base, in violation of 21 U.S.C. § 846 (2000) (Counts One and
Three), two counts of possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841 (2000) (Counts Two and Four),
and one count of possession of a firearm in furtherance of a drug traf-
ficking offense, in violation of 18 U.S.C. § 924(c) (2000) (Count
Five). He was sentenced to 295 months’ imprisonment, five years of
supervised release, a $500 mandatory special assessment, and forfei-
ture of property and proceeds obtained as a result of the offenses of
conviction. On appeal, Daley alleges there is insufficient evidence to
support his convictions. For the following reasons, we affirm in part,
reverse in part, and remand for resentencing.

   Daley’s convictions stem from the following events. FBI agents in
conjunction with local law enforcement, using a confidential infor-
mant known as "Rob," arranged to purchase one kilogram of cocaine
from Roderick White. White called Richard Daley’s brother, Devon
Daley ("Devon"), with whom he had done drug deals in the past, and
inquired about purchasing the drugs. When Devon agreed, White
went to Devon’s apartment to retrieve the drugs. When White arrived
at the apartment to meet with Devon, Devon directed him to Daley,
telling White that Daley was the one who could "hook [him] up" with
the requested amount of cocaine. Daley asked White how well he
knew "Rob." After some discussion, Daley agreed to consummate the
drug transaction, and he left with White in White’s truck to meet
"Rob" at a prearranged location. While en route to this location,
Daley, suspecting police surveillance, changed the meeting place in
an effort to elude law enforcement. While White and Daley were
waiting at the new location, law enforcement officers arrested them.

   Some officers testified they saw Daley make a tugging or furtive
motion as they approached the vehicle and suspected he had a gun.
A search of the vehicle yielded a loaded .38 caliber revolver under-
neath the passenger seat where Daley had been seated and nearly one
kilogram of cocaine base. White testified he was unaware of the fire-
                        UNITED STATES v. DALEY                         3
arm’s presence and had never had a firearm in his truck. White agreed
to cooperate with law enforcement and took them to the apartment
where he had met Daley. A search of the apartment yielded a large
amount of drugs, drug paraphernalia, and firearms.

   In determining whether sufficient evidence supports a conviction,
the appropriate inquiry is whether, taking the evidence in the light
most favorable to the government, any reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Glasser
v. United States, 315 U.S. 60, 80 (1942). We "must consider circum-
stantial as well as direct evidence, and allow the Government the ben-
efit of all reasonable inferences from the facts proven to those sought
to be established." United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). The jury verdict must be upheld if there is substantial
evidence to support the verdict. Id.; United States v. Murphy, 35 F.3d
143, 148 (4th Cir. 1994). A defendant challenging the sufficiency of
the evidence faces a heavy burden. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997). "[A]n appellate court’s reversal of a con-
viction on grounds of insufficiency of evidence should be ‘confined
to cases where the prosecution’s failure is clear.’" United States v.
Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting Burks v. United
States, 437 U.S. 1, 17 (1978)).

   First, we find there is insufficient evidence to support Daley’s
§ 924(c)(1) conviction. In order to establish a violation of § 924(c),
the Government must prove beyond a reasonable doubt that: (1) the
defendant used or carried a firearm; and (2) the use or carrying was
during and in relation to a drug trafficking crime. United States v. Slo-
ley, 19 F.3d 149, 152 (4th Cir. 1994) (citing Smith v. United States,
508 U.S. 223, 227-28 (1993)). Possession my be actual or construc-
tive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Con-
structive possession is established if it is shown "that the defendant
exercised, or had the power to exercise, dominion and control over
the item." Id. The possession can be shared with others. United States
v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996). However, mere presence
at the location where contraband is found is insufficient to establish
possession. United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.
1984). "There must be some action, some word, or some conduct that
links the individual to the [contraband items] and indicates that he had
some stake in them, some power over them. There must be something
4                      UNITED STATES v. DALEY
to prove that the individual was not merely an incidental bystander."
United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980).

   The facts of this case are virtually identical to those in United
States v. Blue, 957 F.2d 106 (4th Cir. 1992). In that case, we held that
an officer’s testimony that as he approached the suspect vehicle, he
observed Blue’s shoulder dip as if he were reaching underneath the
passenger seat where he was seated, and the subsequent discovery of
a firearm under that seat, did not alone justify a finding of construc-
tive possession. Blue, 957 F.2d at 107-08. We further noted that no
fingerprints or any other physical evidence linked Blue to the firearm,
the Government introduced no evidence demonstrating Blue’s owner-
ship of the gun or testimony that he had been seen with the gun, and
the vehicle in which Blue was riding was not his own nor was there
any evidence he had ever been in the vehicle before. Id.

   Here, as in Blue, officers testified they saw Daley make a tugging
or furtive motion as they approached the vehicle. However, they con-
ceded they could not see Daley’s hands and what, if anything, he
might have had in them. Daley did not own the vehicle in which the
firearm was found, nor is there any evidence he had ever been in the
vehicle before. Moreover, there is no evidence Daley was ever seen
with the firearm, nor is there any physical evidence such as finger-
prints linking him to the firearm. Thus, we find the evidence of a tug-
ging or furtive motion and the subsequent recovery of the firearm
underneath the seat where Daley was sitting insufficient by itself to
sustain the § 924(c)(1) conviction and reverse that conviction.

   Daley next argues there was insufficient evidence to support his
§ 841(a)(1) (2000) convictions for two counts of possession with
intent to distribute cocaine base. Count Two deals with the cocaine
base found inside White’s truck, while Count Four deals with the
cocaine base found inside the apartment. In order to establish a viola-
tion of § 841(a)(1), the Government must prove beyond a reasonable
doubt that the defendant: (1) knowingly; (2) possessed the controlled
substance; (3) with intent to distribute it. Burgos, 94 F.3d at 873.

   We find sufficient evidence supports Daley’s conviction on Count
Two. The jury deemed White’s testimony credible, and we will not
review that determination on appeal. See United States v. Saunders,
                       UNITED STATES v. DALEY                         5
886 F.2d 56, 60 (4th Cir. 1989). With regard to Daley’s knowing pos-
session of the cocaine base, White testified that when he went to the
apartment intending to do business with Devon, he was directed to
Daley, who ultimately agreed to take part in the transaction. More-
over, White testified he observed Daley take the cocaine base from
the apartment and place it behind the seat of White’s truck, where it
was later found. We find this is sufficient evidence that Daley know-
ingly possessed the cocaine base.

   Intent to distribute may be inferred from a drug quantity larger than
needed for personal use. United States v. Wright, 991 F.2d 1182, 1187
(4th Cir. 1993); United States v. Roberts, 881 F.2d 95, 99 (4th Cir.
1989). Intent to distribute may also be proven by the quantity and
packaging of drugs in such a way as to distinguish it from drugs
intended for personal use. United States v. Lamarr, 75 F.3d 964, 973
(4th Cir. 1996) (finding possession of 5.72 grams of cocaine base,
combined with other circumstantial evidence, sufficient to support
jury’s inference of intent to distribute). Here, nearly one kilogram of
cocaine base was recovered from White’s truck. Thus, we find suffi-
cient evidence supports a finding of Daley’s intent to distribute.
Accordingly, we find sufficient evidence support’s Daley’s conviction
on Count Two and affirm that conviction.

   Count Four deals with the drugs recovered from a subsequent
search of the apartment. The Government proceeded on a theory of
constructive possession. We find there is only speculative evidence
that Daley resided in the apartment. Marquetta Jackson testified she
rented the apartment on behalf of two of Daley’s brothers. Moreover,
several residents of the apartment complex testified they did not know
whether Daley lived there, instead only testifying they saw him there
"a couple of times," "a little bit," "one or two times," and "some-
times." The only evidence the Government produced linking Daley to
the apartment was a blueprint for a house Daley intended to build.
Although there was testimony that an airline ticket to Jamaica in
Daley’s name was found in the apartment, it was not introduced into
evidence. Finally, none of Daley’s personal belongings, such as cloth-
ing, were found linking him to the apartment. We find such specula-
tive evidence is insufficient to justify a finding of constructive
possession of the drugs found at the apartment. Thus, we find insuffi-
6                      UNITED STATES v. DALEY
cient evidence supports Daley’s conviction on Count Four and reverse
that conviction.

   Finally, Daley argues insufficient evidence supports his § 846 con-
victions for conspiracy to distribute cocaine base. Count One deals
with the conspiracy between Daley and White, while Count Three
deals with the conspiracy between Daley and Devon, and possibly
others. To prove conspiracy to distribute a controlled substance, the
Government must establish that: (1) two or more persons agreed to
distribute the substance; (2) the defendant knew of the conspiracy;
and (3) the defendant knowingly and voluntarily became part of the
conspiracy. Burgos, 94 F.3d at 857.

   With regard to Count One, an agreement to distribute cocaine base
can be inferred between Daley and White. After White initially spoke
with Devon on the phone, it can be inferred that Devon discussed the
deal with Daley. This is so because when White arrived at the apart-
ment, Devon immediately directed him to Daley, whom he said could
"hook [him] up" with that large amount of drugs. Moreover, when
White spoke to Daley, Daley immediately asked him questions
regarding how well he knew "Rob" before agreeing to enter into the
transaction by stating "[w]e can go do it." Finally, Daley accompanied
White to the drug transaction, and even changed the prearranged
meeting location in an apparent effort to elude law enforcement. We
find this evidence supports a finding that Daley entered into an agree-
ment with White to distribute cocaine base, that Daley knew of the
conspiracy, and that he knowingly and voluntarily became part of it.
Accordingly, we find sufficient evidence supports his conviction on
Count One and affirm.

   With regard to Count Three, an agreement also can be inferred
between Daley and Devon. Most of the evidence supporting Daley’s
conviction on Count One also supports his conviction on Count
Three. It could reasonably be inferred that Devon and Daley spoke
before White arrived at the apartment, agreeing that Daley would pro-
vide the drugs to "Rob." This is so because Devon immediately
directed White to Daley, and there is no evidence that Daley was sur-
prised by White’s request for the drugs. We find this establishes at
least an implicit agreement between Devon, Daley, and possibly oth-
ers, to distribute cocaine base. This same evidence further establishes
                       UNITED STATES v. DALEY                       7
Daley’s knowledge of the conspiracy and that he knowingly and vol-
untarily became part of it. Thus, we find sufficient evidence supports
Daley’s conviction on Count Three and affirm that conviction.

   For these reasons, we find sufficient evidence supports Daley’s
convictions on Counts One, Two, and Three. Accordingly, we affirm
those convictions and sentences. However, we find there is insuffi-
cient evidence to support Daley’s convictions on Counts Four and
Five. Thus, we reverse those convictions and remand to the district
court for resentencing. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

                                        AFFIRMED IN PART,
                          REVERSED IN PART, AND REMANDED
