                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4536



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


NICHOLAS SHAMAR GRIFFIN,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-103)


Argued:   March 15, 2006                  Decided:   April 12, 2006


Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, P.C.,
Wilmington, North Carolina, for Appellant. Jennifer P. May-Parker,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Christine Witcover
Dean, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:

     A jury convicted Nicholas Shamar Griffin of possession with

intent to distribute more than 5 grams of cocaine base (commonly

known as “crack cocaine”), possession of firearms in furtherance of

a drug trafficking crime, and possession of firearms by a convicted

felon, and the district court sentenced him to a 246 month-term of

imprisonment.1    On appeal, Griffin challenges his convictions and

his sentence. For the reasons set forth below, we affirm Griffin’s

convictions,     but   we    vacate   his   sentence   and   remand   for

resentencing.



                                      I

     Griffin first argues that the evidence is insufficient to

establish that he possessed the crack cocaine and firearms for

which he was charged.       We disagree.



                                      A.

     Griffin’s possession of the crack cocaine is an essential

element of the § 841(a) charge, and his possession of the firearms

is an essential element of the §§ 922(g)(1) and 924(c) charges.       To



     1
      These offenses were brought pursuant to 21 U.S.C. §
841(a)(1), 18 U.S.C. § 924(c), and 18 U.S.C. § 922(g)(1),
respectively. The district court sentenced Griffin to 186 months
of imprisonment on the § 841(a)(1) count, a concurrent 120-month
term on the § 922(g)(1) count, and a consecutive 60-month term on
the § 924(c) count.

                                      2
meet its burden of proof as to possession, the government relied on

the    theory     of   constructive     possession,   which   holds    that   the

evidence establishes “such a nexus or relationship between the

defendant and the [contraband] that it is reasonable to treat the

extent of the defendant’s dominion and control as if it were actual

possession.”        United States v. Smith, 407 F.2d 35, 37 (4th Cir.

1969) (citation and internal quotation marks omitted).2

       In order to establish constructive possession of contraband,

the government must prove that the defendant “knows of its presence

and has the power to exercise dominion and control over it.”

United States v. Schocket, 753 F.3d 336, 340 (4th Cir. 1985).

Constructive possession “does not have to be exclusive, but can be

shared with others,” United States v. Wright, 991 F.2d 1182, 1187

(4th       Cir.   1993),   and   “[a]    defendant    may   have    constructive

possession of contraband even if it is not in his immediate

possession or control,” United States v. Shorter, 328 F.3d 167, 172

(4th Cir. 2003).        The government can prove constructive possession

by using either direct or circumstantial evidence.                 United States

v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).




       2
      Neither the district court’s jury instructions nor the
parties’ closing arguments are included in the appellate record.
However, the government does not argue on appeal that it
established that Griffin had actual possession of the firearms and
crack cocaine.      We therefore limit our consideration to
constructive possession.

                                          3
     Although a defendant’s mere presence at, or joint tenancy of,

a location where contraband is found, or his mere association with

another   contraband   possessor,       is    insufficient     to   establish

constructive possession, United States v. Morrison, 991 F.2d 112,

115 (4th Cir. 1993); United States v. Rusher, 966 F.2d 868, 878

(4th Cir. 1992); “where other circumstantial evidence . . . is

sufficiently   probative,   proximity        to   contraband   coupled   with

inferred knowledge of its presence” will support such a finding.

United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980)

(citation and internal quotation marks omitted).             Consistent with

this principle, we have held that the fact that contraband is found

in a defendant’s residence “permits an inference of constructive

possession” and that this inference is “bolstered” by evidence that

the contraband is in plain view or that material associated with

the contraband is also in the residence.          Shorter, 328 F.3d at 172.

However, constructive possession does not require proof that the

defendant actually owned the property on which the contraband was

found.    See, e.g., United States v. Poore, 594 F.2d 39, 43 (4th

Cir. 1979) (affirming constructive possession finding where the

defendant resided in another person’s apartment).



                                    B.

     We must sustain the verdict “if there is substantial evidence,

viewed in the light most favorable to the Government, to uphold the


                                    4
jury’s decision.”       Burks v. United States, 437 U.S. 1, 17 (1978).

Substantial evidence is that evidence which a “reasonable finder of

fact   could   accept    as    adequate    and   sufficient     to   support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

Burgos, 94 F.3d at 862.        Viewed in the light most favorable to the

government, the evidence establishes the following.

       Before August 6, 2002, Brunswick County, North Carolina,

Sheriff’s Deputy Clint Simpson saw Griffin numerous times while

Simpson conducted surveillance or undercover operations in the

Longwood community in Brunswick County. Griffin’s girlfriend lived

in a trailer in Longwood, Griffin stayed at the trailer frequently,

and a vehicle registered to and driven by Griffin was “always at

the house.”    J.A. 21.    Deputy Simpson saw Griffin come and go from

the trailer several times.        On numerous occasions, Deputy Simpson

saw Griffin standing among a group of people in front of the

trailer.       Deputy   Simpson    also    saw   Griffin   engage    in   brief

encounters with drivers in the same area.          If a vehicle slowed down

near   the   group   Griffin    was   with,   Griffin   would    approach   the

vehicle, lean into it, talk to the driver, and stick his hand in

the window.     These interactions lasted 30 seconds or less.             Other

persons engaged in the same types of encounters in Griffin’s

presence.

       In March 2002, Brunswick County Sheriff’s Office Narcotics

Agent Israel West arranged for an informant to make a controlled


                                       5
drug purchase. A video camera captured a brief meeting between the

informant    and   Griffin,   within    100   yards   of   the   trailer.

Immediately after this meeting, the informant returned to Agent

West and gave him a small piece of a substance which had an

appearance that was consistent with crack cocaine.

     In the early morning of August 6, law enforcement officers

went to the trailer where Griffin’s girlfriend lived to execute an

arrest warrant for Griffin.      An occupant of the trailer permitted

the officers to enter and told them Griffin was in one of the

bedrooms. The officers found Griffin and a woman inside the locked

bedroom.     Griffin was wearing a pair of boxer shorts when the

officers first encountered him, and they asked him to put on his

pants.     The officers then searched Griffin and seized marijuana

from his pants pockets.       The officers also seized a pill bottle

that lay on the floor near Griffin’s foot; the bottle contained a

substance that appeared to be crack cocaine.          The officers took

Griffin into custody.

     That afternoon, law enforcement officers searched the trailer

pursuant to a search warrant.       The search of the bedroom where

Griffin was arrested yielded drugs and drug paraphernalia, firearms

and ammunition, and indicia of Griffin’s residence in the trailer.




                                    6
      Specifically, the officers found 2.8 grams of crack cocaine in

a small box sitting atop a television3 and 11.3 grams of crack

cocaine inside one of two locked safes found in the room.         The safe

containing the crack cocaine also contained an envelope on which

Griffin’s name was handwritten.           The envelope contained a letter

dated August 5, 2002, which verified that Griffin was employed by

a construction company as a sub-contractor and had been paid; and

a pay stub, dated August 2, 2002, that bore Griffin’s name.

      The officers also found a shotgun in the bedroom closet, a

loaded semi-automatic pistol in a cigar box near the bed, a loaded

revolver on the floor near the bed and adjacent to one of the

safes, and a rifle (a loaded magazine designed to fit this rifle

was   found   on    a   chest   of   drawers    adjacent   to   the   bed).

Additionally, the officers found marijuana, postal scales, small

plastic bags, loose bullets, currency, and several items of men’s

clothing in the bedroom.



                                     C.

      We conclude that this evidence is more than sufficient to

establish Griffin’s constructive possession of the crack cocaine

and firearms.      From this evidence, the jury was permitted to find

that Griffin was a crack cocaine dealer who operated near, and



      3
      At trial, the parties stipulated that the weight of this
crack cocaine was two grams.

                                     7
resided in, his girlfriend’s trailer.                  In addition, the jury could

find specifically that Griffin had knowledge of, and dominion and

control over, the crack cocaine and firearms because of his early

morning presence in the bedroom where those items were found, the

fact that a large quantity of crack cocaine was found with his

personal papers in the locked safe that was in the bedroom, and the

fact that the firearms and ammunition were found throughout the

bedroom in readily accessible places within a relatively short time

after     Griffin   was    arrested.        See    generally     United    States    v.

Gallimore, 247 F.3d 134, 137 (4th Cir. 2001) (upholding finding of

constructive possession of firearms based on evidence that some of

the   firearms      were   found   in   a       safe    that   also    contained    the

defendant’s personal papers, the firearms were discovered within 24

hours after the defendant had left the house, and the firearms were

disbursed in a manner that indicated they had been in the house for

more than 24 hours); United States v. Jones, 204 F.3d 541, 543-44

(4th Cir. 2000) (“Given that the cocaine . . . was found behind a

dresser drawer in the bedroom from which the officer saw Jones exit

and in which authorities discovered Jones’ personal papers, we

cannot say that the district court, sitting as trier of fact, erred

in finding that Jones possessed the cocaine.”).                       Accordingly, we

affirm Griffin’s convictions.4



      4
      We have considered Griffin’s other arguments concerning his
convictions and find them to be without merit.

                                            8
                                  II

     Griffin also argues that his sentence is unconstitutional

under United States v. Booker, 543 U.S. 220 (2005). The government

concedes that Griffin must be resentenced under Booker, noting that

the district court plainly erred by relying at sentencing on a

greater drug quantity than that alleged in the indictment and found

by the jury.     See United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).     We agree that Griffin’s sentence runs afoul of Booker and

Hughes.5    Therefore, we vacate Griffin’s sentence and remand for

resentencing in accordance with those cases.6



                                  III

     Based on the foregoing, we affirm Griffin’s convictions,

vacate his sentence, and remand for resentencing.



                                                  AFFIRMED IN PART,
                                                   VACATED IN PART,
                                                       AND REMANDED




     5
      Just as we noted in Hughes, we “offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Griffin’s sentencing. 401 F.3d at 545 n.4.
     6
      Because we are remanding this case for resentencing, we
decline to address Griffin’s argument that the district court erred
in calculating his sentencing guideline range. See Hughes, 401
F.3d at 556 n.15 (“we do not hold that in every case involving a
Booker issue, this court must first address alleged calculation
errors before vacating and remanding for resentencing”).

                                   9
