     Case: 13-51015          Document: 00512857304         Page: 1     Date Filed: 12/04/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 13-51015                         United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
UNITED STATES OF AMERICA,                                                     December 4, 2014
                                                                                Lyle W. Cayce
                 Plaintiff - Appellee                                                Clerk

v.

SHANNON L. SMITH,

                 Defendant - Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 7:08-CR-241-2


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       Shannon Smith (“Smith”) challenges the sufficiency of the evidence
which led to his conviction, after a jury trial, of aiding and abetting possession
with intent to distribute more than 50 grams of crack cocaine (count one) and
possession of a firearm in furtherance of a drug-trafficking crime (count two). 1
We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   He does not challenge his conviction of felon in possession of a firearm (count 3).
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                                 No. 13-51015
                                       I.
      On October 23, 2008, the Odessa, Texas Police Department (“OPD”) set
up a controlled buy using a confidential informant (“CI”). At the officers’
direction, the CI called his supplier, Randell McKoy (“McKoy”), and arranged
to meet him at a local restaurant to purchase crack cocaine. McKoy agreed to
sell three ounces of cocaine to the CI for $2500.
      About an hour after the meeting was arranged, McKoy called the CI and
told him he was outside of the restaurant in a gray Lincoln pickup truck. OPD
officers that were in the area drove to the restaurant parking lot in an
unmarked police vehicle. The officers located an unoccupied gray Lincoln
pickup truck. One of the officers got out of the vehicle and observed two males,
later identified as Appellant, Smith, and McKoy, walking toward her. The
officer heard one male say to the other, “He is on his way.”            The officer
continued watching the men until they entered a nail salon. When McKoy
exited the nail salon police detained him. Immediately after, officers entered
the nail salon and detained Smith.
      Once McKoy and Smith were detained the officers directed them to sit
on the ground. While McKoy was seated, an OPD officer noticed him making
unusual movements. The officer ordered McKoy to stand. When McKoy stood,
OPD officers observed a “very obvious” bulge in McKoy’s waistband. The
officers retrieved 105.69 grams of crack cocaine. Officers also searched Smith.
They found in Smith’s pants a bundle of cash amounting to $850 in one of his
pockets and a bundle containing $910 in his other pocket.
      OPD officers also searched the gray Lincoln pickup truck and found a
loaded .45 caliber handgun between the center console and the driver’s seat. A
magazine with 13 rounds of ammunition was in place in the weapon. Smith
initially stated that he was unaware of the handgun in the truck, that it did
not belong to him, and that it belonged to his aunt. However, during a later
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                                  No. 13-51015
search of Smith’s home, officers found a box of .45 caliber ammunition, a case
for a Springfield Armory .45 caliber handgun with a serial number that
matched the handgun found in the vehicle, ballistic body armor, and a car-
repair bill belonging to McKoy.
      At trial, Smith testified and admitted that he owned the handgun, he
knew the handgun was in his pickup truck, and he knew the firearm had
bullets in the magazine. Smith also admitted, and the parties stipulated, that
Smith had a prior felony conviction for trafficking cocaine. An OPD supervisor
told the jury that in her experience as a narcotics officer it was common for
officers to find firearms on persons arrested for drug-trafficking offenses. She
also testified that drug traffickers carry firearms to protect themselves, their
narcotics, and their money. An FBI Agent also testified and explained that
drug traffickers use firearms for protection and that he has previously
recovered bullet-resistant vests from drug traffickers. An OPD detective told
the jury that each bundle of cash found in Smith’s pockets approximated the
price of one ounce of cocaine ($850), indicating that Smith and McKoy had
engaged in other drug transactions that day.
      The jury convicted Smith of aiding and abetting possession with intent
to distribute more than 50 grams of crack cocaine (count 1), possession of a
firearm in furtherance of a drug-trafficking crime (count 2), and being a felon
in possession of a firearm (count 3).
      In Smith’s first appeal to this Court, he challenged the sufficiency of the
evidence on counts one and two. We affirmed his conviction. We concluded
that Smith’s counsel incorrectly believed that Smith was charged with
conspiracy and failed to challenge Smith’s actual conviction of aiding and
abetting; thus, Smith had waived the sufficiency argument on that offense. We
also concluded that there was sufficient evidence to support a conviction of
firearm possession in furtherance of a drug trafficking offense.
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                                         No. 13-51015
       Smith moved for an out-of-time appeal under 28 U.S.C. § 2255 in the
district court. Smith argued, among other things, that his appellate counsel
was ineffective for waiving any challenge to count one. The district court
granted Smith’s motion for a new appeal because of his appellate counsel’s
deficient performance.            Smith timely filed this appeal challenging the
sufficiency of the evidence to convict him on counts one and two.
                                                II.
       Because Smith moved for a judgment of acquittal at the close of the
government’s case and at the close of the evidence, we review the sufficiency of
the evidence de novo. 2 “We will affirm the district court ‘if a reasonable trier
of fact could conclude [that] the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most favorable to
the verdict and drawing all reasonable inferences from the evidence to support
the verdict.’” 3
                                               III.
    A. Count One: Aiding and Abetting Possession with Intent to Distribute
       In order to convict Smith of possession with the intent to distribute, the
government was required to prove beyond a reasonable doubt that the
defendant “(1) knowingly (2) possessed [cocaine] (3) with the intent to
distribute it.” 4 “To sustain a conviction for aiding and abetting under 18 U.S.C.
§ 2, the government must show that a defendant associated with a criminal
venture, purposefully participated in the criminal activity, and sought by his




       2   United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008).
       3Id. (citation omitted) (alteration in original) (quoting United States v. McDowell, 498
F.3d 308, 312 (5th Cir. 2007)).
       4 United States v. Polk, 56 F.3d 613, 619-620 (5th Cir. 1995) (citing 21 U.S.C. §
841(a)(1)) (citation omitted).

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                                       No. 13-51015
or her actions to make the venture succeed.” 5 Stated another way, to aid and
abet means to “assist the perpetrator of a crime with some affirmative act
designed to aid the venture, while sharing the criminal intent.” 6
      Smith argues that no reasonable jury could have convicted him of aiding
and abetting possession of drugs because the evidence at trial failed to
establish that he knew a drug transaction was occurring. He argues that the
government was only able to prove he was at the location at the time that his
friend was engaging in drug-related activities.
      Our review of the record persuades us that the evidence supports a
finding that Smith aided and abetted in the possession of the cocaine with the
intent to distribute. Smith drove his own vehicle to transport McKoy to the
location where the drug transaction was scheduled to occur. Smith had in his
vehicle a loaded handgun commonly carried by drug dealers to protect their
drugs and cash. Smith carried large quantities of cash in his pockets in
amounts similar to proceeds of earlier sales of drugs. An officer overheard one
of the men say to the other, “He is on his way,” which a reasonable jury could
infer was referencing the CI.           McKoy had a “very obvious” and “readily
apparent” bulge in his waistband where he attempted to hide the drugs. At
Smith’s home, the police discovered documents belonging to McKoy, body
armor, and ammunition.              The government established that Smith had a
previous conviction for distribution of cocaine, which the government
introduced to prove his criminal intent and knowledge of drug transactions.
Finally, Smith lied to the police during the investigation about the ownership
of the firearm. Based on this evidence, a reasonable jury could have rejected




      5   Id. (citation omitted).
      6   Id. (citation omitted).

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                                      No. 13-51015
Smith’s explanation and concluded that he knowingly aided and abetted the
possession of crack cocaine with the intent to distribute it.
                B. Count Two: Possession of a Firearm in Furtherance
                               of a Drug-Trafficking Crime
       Possession of a firearm “is ‘in furtherance’ of the drug trafficking offense
when it furthers, advances, or helps forward that offense.” 7 In determining
whether possession of the firearm is “in furtherance” of a drug trafficking
offense we consider several factors, including:
       [T]he type of drug activity that is being conducted, accessibility of
       the firearm, the type of weapon, whether the weapon is stolen, the
       status of the possession (legitimate or illegal), whether the gun is
       loaded, proximity to drugs or drug profits, and the time and
       circumstances under which the gun is found. 8
       Principally, Smith argues that he cannot be convicted of possession of a
firearm in furtherance of the drug trafficking crime if the evidence is
insufficient to establish that he was aware that the drug transaction was
taking place. Because we find that the evidence is sufficient to support this
knowledge element in connection with count one, we reject this argument.
       Smith also argues that the evidence was insufficient to prove he actually
possessed the firearm in furtherance of a drug trafficking offense. We are
satisfied that a reasonable jury could conclude that Smith’s firearm possession
“further[ed], advance[ed], or help[ed] forward” the drug trafficking offense.
Smith drove McKoy in his vehicle to the location of the sale. Next to Smith’s
right leg, between the driver’s seat and center console, Smith had his large
caliber, high capacity handgun fully loaded and readily accessible. Smith and
his handgun were within arm’s reach of the drugs while in the truck. At trial,


       7United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000), amended in part,
226 F.3d 651 (5th Cir. 2000).
       8   Id. at 414-415.

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                                  No. 13-51015
Smith admitted to possessing the firearm, which was illegal because of his
previous felony conviction for distribution of cocaine. Viewing all facts and
inferences in the light most favorable to the verdict, we find sufficient evidence
for the jury to conclude that Smith possessed the firearm in furtherance of the
drug trafficking offense.
                                       IV.
      A reasonable jury could conclude, based on the evidence presented at
trial, that Smith aided and abetted the possession with the intent to distribute
cocaine and possessed a firearm in furtherance of a drug trafficking crime.
Smith admitted that he possessed the firearm as a convicted felon, and he does
not challenge that conviction on appeal. We, therefore, affirm his conviction
on all counts.
      AFFIRMED.




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