FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-10062 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00375-RLH

CARLOS JAVIER LOPEZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding

Argued and Submitted

December 5, 2006—San Francisco, California

Filed February 27, 2007

Before: Thomas G. Nelson, Ronald M. Gould, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge T.G. Nelson

2205
COUNSEL

Anne R. Traum, Assistant Federal Public Defender, Las

Vegas, Nevada, for the defendant-appellant. 

Christina M. Brown, Assistant United States Attorney, Las

Vegas, Nevada, for the plaintiff-appellee. 

2208 UNITED STATES v. LOPEZ
OPINION

T.G. NELSON, Circuit Judge: 

Carlos Lopez (“Lopez”) appeals his convictions for possession of cocaine with intent to distribute (21 U.S.C. § 841(a))

and possession of a firearm in furtherance of a drug trafficking offense (18 U.S.C. § 924(c)). 

Lopez contends that insufficient evidence supported his

convictions under these counts because no rational jury could

have found each of the essential elements of the crimes

beyond a reasonable doubt. He further contends that the district court plainly erred by failing to provide the meaning of

the term “in furtherance” to the jury, and that the district court

abused its discretion when it denied his motion to sever his

drug-related counts from the other charges. Harris v. United

States1 and United States v. Dare2 foreclose Lopez’s final

claim, that the mandatory minimum sentence imposed under

18 U.S.C. § 924(c) violated his Sixth Amendment rights. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm. 

I. BACKGROUND 

The Government charged Lopez on five counts. Counts

One and Two charged Lopez with being a felon and an illegal

alien in possession of a firearm. Count Three charged him

with possessing that same firearm in furtherance of a drug

trafficking offense. Count Four charged Lopez with possession of cocaine with intent to distribute. Count Five charged

him with illegal reentry. Before trial, Lopez moved to sever

the firearm and illegal reentry charges from the drug-related

counts. The district court denied his motion. 

1

536 U.S. 545 (2002). 

2

425 F.3d 634 (9th Cir. 2005). 

UNITED STATES v. LOPEZ 2209
At trial, one of Lopez’s arresting officers testified regarding

the events surrounding Lopez’s arrest. The officer explained

that he had responded to a 911 call placed at approximately

3:30 A.M. on August 11, 2004. The caller stated that he had

observed Lopez brandish a handgun, walk into a nearby apartment complex, re-emerge, and then climb into a maroon

Dodge Stratus. Shortly after responding, the testifying officer

located the car and pulled up alongside it. He saw Lopez, who

was in the passenger seat, lean over as if he were placing

something under his seat. The officer followed the car and

signaled the driver to pull over. The driver turned into a parking lot and stopped. 

Lopez jumped out of the car and ran. He refused to stop

despite commands to do so in both English and Spanish. The

testifying officer and a back-up officer eventually cornered

and subdued him. During the struggle, a “purse” fell from

Lopez’s pants pocket. The purse contained $2,840.25 in unorganized cash, including 63 twenty-dollar bills, and several

identification cards. After running the various names on the

identification cards through the police computer system, the

officers learned who Lopez was and that he was a convicted

felon and a previously-deported illegal alien. 

When the officers asked Lopez about the large amount of

cash in the purse, he offered various conflicting explanations

including that he dealt in cars, painted houses, and had been

gambling. He also suggested that the money belonged to his

wife. Lopez was unable to provide any corroborating information. For example, he failed to provide the name of a casino

where he had been gambling or an address where his wife

lived. Lopez did not introduce any evidence at trial regarding

the source of the money. 

When the officers asked Lopez about the gun the eyewitness had observed him brandish, Lopez said in Spanish, “[i]f

you don’t find a gun, you got nothing on me.” The officers

found a gun under the passenger seat of the maroon Dodge

2210 UNITED STATES v. LOPEZ
Stratus. They also found a canister in the center console that

contained 13.15 grams of cocaine. The cocaine was divided

into multiple “shaved” pieces of varying sizes. Lopez admitted that he owned the maroon Dodge Stratus, but denied that

the gun or the drugs found in the car were his. 

Officer Christopher Bunn from the Narcotics Bureau in the

Las Vegas Metropolitan Police Department testified at the

trial as an expert witness. He stated that, in his expert opinion,

the drugs recovered from Lopez’s car were for distribution.

He based his opinion on the quantity and packaging of the

cocaine, the area where the incident occurred, the cash

denominations and amount, and the presence of a firearm.

Officer Bunn testified that 13.15 grams amounted to 131 dosage units and that single dosage units typically sell for ten

dollars. Officer Bunn further testified that twenty dollars is a

very common purchase level. 

With respect to the charge of possession of a firearm in furtherance of a drug trafficking offense, the district court

instructed the jury as follows:

The defendant is charged in Count Three of the

indictment with possessing a firearm in furtherance

of a drug trafficking crime in violation of Section

924(c)(1) of Title 18 of the United States Code. In

order for the defendant to be found guilty of that

charge, the Government must prove each of the following elements beyond a reasonable doubt: 

First, the defendant committed the crime of drug

trafficking specified in Count Four of the indictment;

Second, the defendant knowingly possessed a firearm; and

Third, the defendant possessed the firearm in furtherance of the crime. 

UNITED STATES v. LOPEZ 2211
The jury instructions did not separately define the term “in

furtherance” in the third element. 

A jury convicted Lopez on all five counts. Lopez appeals,

arguing that: (1) insufficient evidence existed to support conviction under Counts Three and Four; (2) the district court

plainly erred by failing to define “in furtherance” in the jury

instruction for Count Three; and (3) the district court abused

its discretion when it denied his motion to sever the drugrelated charges from the others. 

II. ANALYSIS

We review claims of insufficient evidence de novo.3 Sufficient evidence supports a conviction if, “after viewing the evidence in the light most favorable to the prosecution, no

rational trier of fact could have found each of the essential

elements of the crime beyond a reasonable doubt.”

4

We review a complaint regarding jury instruction for plain

error where a defendant neither proposed nor objected to a

jury instruction.5 Finally, we review the district court’s denial

of a motion to sever for abuse of discretion.6

A. Sufficient evidence supported the jury’s guilty

verdict on the charge of possession of cocaine with

intent to distribute.

[1] In order to convict under 21 U.S.C. § 841(a), the Gov3United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004) (citation omitted). 

4United States v. Rios, 449 F.3d 1009, 1011 (9th Cir. 2006) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (internal quotation marks

omitted). 

5United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006). 

6United States v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996) (citation

omitted). 

2212 UNITED STATES v. LOPEZ
ernment must prove beyond a reasonable doubt that Lopez

both knowingly possessed cocaine and that he intended to distribute it.7

 We will address each requirement in turn.

i. Knowing Possession 

[2] Mere proximity to drugs does not establish knowing possession.8

 The Government must show some link between the

defendant and the drugs. Circumstantial proof of “exclusive

dominion or of some special relationship to the cocaine or

persons who directly control it” suffices.9

Several pieces of evidence link Lopez to the drugs and distinguish his case from those on which he relies. First, Lopez

owned the vehicle in which officers found the cocaine. Second, the drugs were within his reach shortly before his arrest.

Third, according to an expert witness, the amount of cash in

Lopez’s possession suggested drug dealing. Lopez’s proximity to the drugs, when combined with the other evidence in the

case, suggests dominion and control over the drugs. These

facts also distinguish this case from Corral-Gastelum.10 In

that case, no such circumstantial evidence of possession

existed. The only thing that linked the defendant to the drugs

was his proximity to them. The defendant was arrested 30 to

110 yards from duffel bags containing marijuana.11

In addition, in his statement to the officers, Lopez flatly

denied ownership of the drugs and never offered a credible

explanation regarding his proximity to them even though the

cocaine was in his car and within his reach shortly before his

arrest. A jury may “consider as evidence a less than credible

7United States v. Ocampo, 937 F.2d 485, 488 (9th Cir. 1991). 

8

See United States v. Corral-Gastelum, 240 F.3d 1181, 1184 (9th Cir.

2001). 

9Ocampo, 937 F.2d at 489 (citation omitted). 

10240 F.3d 1181 (9th Cir. 2001). 

11Id. at 1183. 

UNITED STATES v. LOPEZ 2213
explanation given by the defendant concerning his proximity

to the contraband.”

12

[3] Lopez’s ownership of the vehicle where officers found

cocaine, the large amount of unorganized cash in his possession, his observed proximity to the cocaine, the ease with

which he could access the cocaine, and the absence of any

evidence to suggest that the drugs belonged solely to the

driver of the car or to another person supported an inference

that Lopez possessed the cocaine found in his car.13

Lopez argues that he could have been attempting to avoid

the police because he feared deportation rather than prosecution for a drug crime. He further argues that the absence of his

fingerprints on the canister in which the officers found the

cocaine could support an inference that the drugs belonged to

someone else. Although the jury could have interpreted the

evidence as Lopez suggests, it did not. The inferences that it

did draw were sufficiently supported by the evidence.

Accordingly, we may not substitute our judgment for that of

the jury.14

ii. Intent to distribute 

[4] Where there is “other evidence of a plan or intent to distrib12United States v. Grayson, 597 F.2d 1225, 1229 (9th Cir. 1979) (citation omitted); see also United States v. Jose Luis L., 978 F.2d 543, 545

(9th Cir. 1992) (finding that defendant’s proximity to a marijuana cache

did not establish possession because the defendant provided a plausible

explanation that his presence in the desert where the drugs were found was

for the sole purpose of attempting to cross the border). 

13Cf. Delgado v. United States, 327 F.2d 641, 642 (9th Cir. 1964) (finding evidence insufficient to establish possession by either of two “common

law” spouses residing in the same home when officers found drugs in a

night stand because evidence did not provide a rational basis for resolving

the doubts as to whether one alone or both had possession). 

14See, e.g., Rios, 449 F.3d at 1011 (stating that court must draw all reasonable inferences in favor of the Government). 

2214 UNITED STATES v. LOPEZ
ute,”15 this court has held that possession of as little as four

or five grams may establish an intent to distribute cocaine.16

[5] Lopez possessed far more than four or five grams.

Moreover, other pieces of evidence permitted a reasonable

inference that Lopez obtained the cash in his possession from

drug trafficking. The evidence included: (1) inconsistent and

insufficient explanations regarding the source of the cash; (2)

the disorganized nature of the money; and (3) his possession

of 63 twenty-dollar bills coupled with expert testimony that

twenty dollars was a common purchase level. Furthermore,

Lopez’s ownership of the vehicle in which officers found distributable quantities of cocaine in divided pieces also supported an inference that Lopez intended to distribute the

cocaine in his possession. The record supports the jury’s finding that Lopez intended to distribute cocaine. 

[6] The Government introduced sufficient evidence from

which a reasonable jury could infer that Lopez both knowingly possessed cocaine and intended to distribute it. We

therefore affirm Lopez’s conviction under 21 U.S.C. § 841(a).

B. Sufficient evidence supported the jury’s guilty

verdict on the charge of possession of a firearm in

furtherance of a drug trafficking offense. 

Lopez argues that the Government failed to introduce evidence from which a rational jury could determine beyond a

15United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979) (holding that defendant’s sharing of cocaine with his two companions established intent to distribute even absent evidence of commercial

distribution). 

16Id. (citing evidence that a typical dose of cocaine can be as little as

one-fourth of a gram as sufficient for a reasonable jury to conclude that

five grams in defendant’s possession was a distributable amount). 

UNITED STATES v. LOPEZ 2215
reasonable doubt that he possessed a firearm “in furtherance”

of a drug trafficking crime.17 His argument fails. 

[7] To establish that Lopez possessed the firearm “in furtherance” of his drug crime, the Government must show that

Lopez intended to use the firearm to promote or to facilitate

his possession of cocaine with intent to distribute.18 While the

Government need not show actual use of the firearm to

advance the drug crime, mere possession of the gun is not

enough.19 In addition to possession, the Government must

demonstrate a nexus between the gun discovered and the

underlying offense.20 This court has held that a sufficient

nexus exists if the firearm was “readily accessible” during the

commission of the drug crime.21

[8] Because Lopez’s drug crime was possession of cocaine

with intent to distribute, evidence establishing the ready

accessibility of the gun while he was in possession of a distributable amount of cocaine satisfied the “in furtherance”

requirement. The Government satisfied its burden when it

17In order to convict under 18 U.S.C. § 924(c), the Government must

prove that Lopez: (1) possessed cocaine with intent to distribute; (2) possessed a firearm; and (3) possessed that firearm “in furtherance” of his

drug crime. Rios, 449 F.3d at 1012. In the previous section, we affirmed

the district court’s finding that Lopez possessed cocaine with intent to distribute. Thus, we resolved the first prong. Additionally, Lopez does not

argue that the Government presented insufficient evidence to establish that

he possessed a firearm. Thus, the second prong is not at issue. 

18Rios, 449 F.3d at 1012. 

19Id. at 1014 (discovery of sawed-off shotgun at defendant’s residence

where no drugs were found at residence did not establish that defendant

possessed a firearm in furtherance of a drug crime despite expert testimony that drug traffickers often use firearms to further their drug crimes);

see also United States v. Mann, 389 F.3d 869, 880 (9th Cir. 2004) (defendant’s possession of a firearm at a drug trafficking crime scene insufficient

to convict where firearm was in a locked safe inside of a parked truck).

20Rios, 449 F.3d at 1014. 

21See id. at 1016. 

2216 UNITED STATES v. LOPEZ
presented evidence at trial that both the canister of cocaine

and the firearm were easily within Lopez’s reach at the time

when the officer pulled over Lopez’s car. 

[9] We affirm Lopez’s conviction for possession of a firearm in furtherance of a drug trafficking offense. 

C. The district court properly instructed the jury on

the meaning of “in furtherance.” 

The district court did not err, much less plainly err, by failing separately to define “in furtherance” in its instruction to

the jury on possession of a firearm in furtherance of a drug

trafficking offense. To the extent any ambiguity in the definition of “in furtherance” exists, it benefitted Lopez. 

[10] Lopez argues that absent a separate definition of “in

furtherance,” the jury could have convicted him upon finding

mere possession of one firearm. His argument fails. The

instruction separately listed the requirements that “the defendant knowingly possessed a firearm” and that “the defendant

possessed the firearm in furtherance of the crime.” Thus the

instruction clearly delineated between mere possession and

possession “in furtherance.” Additionally, “in furtherance is a

phrase of general use that naturally connotes more than mere

possession . . . .”

22 The instruction as given eliminated the

possibility that a rational juror would equate mere possession

of a firearm with possession of a firearm “in furtherance” of

a drug crime. We affirm. 

22United States v. Robinson, 435 F.3d 1244, 1250 (10th Cir. 2006)

(internal quotation marks omitted); see also MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 509 (11th ed. 2003) (defining “furtherance” as

“the act of furthering; advancement”). 

UNITED STATES v. LOPEZ 2217
D. The district court did not abuse its discretion when it

denied Lopez’s motion to sever the drug-related

counts from the other charges. 

[11] The district court did not abuse its discretion when it

denied Lopez’s motion to sever certain counts. Joinder was

not “so manifestly prejudicial that it outweigh[ed] the dominant concern with judicial economy and compel[led] the exercise of the court’s discretion to sever.”

23 The jury’s knowledge

of Lopez’s status as a felon and a deported alien was not manifestly prejudicial.24 Furthermore, the evidence regarding each

of the charges against Lopez was extensively interrelated, and

thus reasonably consolidated into one trial. 

[12] Lopez admits that there was no testimony on the issue

of his status as a felon because he stipulated to that fact. This

prior felony stipulation and the strength of the evidence distinguish Lopez’s case from Lewis.25 In Lewis, this court

reversed a district court’s denial of the defendant’s motion to

sever. Several factors in Lewis led to the court’s reversal.

First, evidence in support of the defendant’s killing charge

was sparse.26 Second, the district court permitted otherwise

improper testimony and prosecutorial argument regarding the

defendant’s prior felony conviction and the fact that he had

lied under oath.27 None of these factors exist in this case.

Here, the evidence supporting Lopez’s convictions, particularly his convictions related to firearm possession, was strong.

United States v. VonWillie28 provides a more apt compari23United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976). 

24See United States v. Lewis, 787 F.2d 1318, 1321, as amended by 798

F.2d 1250 (9th Cir. 1986) (defining “manifestly prejudicial” as “of such

magnitude that the defendant’s right to a fair trial was abridged”). 

25787 F.2d at 1323. 

26Id. at 1321. 

27Id. at 1322-23. 

2859 F.3d 922 (9th Cir. 1995). 

2218 UNITED STATES v. LOPEZ
son. In VonWillie, a jury convicted the defendant on charges

of being a felon in possession of a firearm and of use of a firearm in relation to a drug trafficking offense.29 As in Lopez’s

case, the prosecution stipulated to the prior felony conviction

and the trial court gave a limiting instruction to the jury.30

This court concluded that the district court did not abuse its

discretion by denying the defendant’s motion to sever.31

[13] No law supports Lopez’s contention that the jury’s

knowledge that he was an illegal alien created “prejudice of

such magnitude that the defendant’s right to a fair trial [was]

abridged.”

32 Unlike evidence of a prior felony conviction, relevant evidence that a person is a previously-deported illegal

alien is admissible.33

[14] Furthermore, concerns of judicial economy strongly

supported the denial of the motion to sever in this case. Each

of the alleged offenses arose from the same act or transaction,34

and there was significant overlap in the evidence for all

charges. Counts One, Two, and Three each required the Government to prove that Lopez possessed a firearm. Counts

Three and Four each required the Government to prove that

Lopez possessed cocaine with an intent to distribute. Counts

Two and Five each required the Government to prove that

Lopez was an illegal alien. Thus, separating any charge from

the others would have necessarily resulted in a duplicative

presentation of evidence. The burden on judicial resources

that would have resulted from hearing the charges and evidence against Lopez in multiple trials outweighs any limited

29Id. at 924. 

30Id. at 930. 

31Id. 

32Lewis, 787 F.2d at 1322. 

33See Fed. R. Evid. 402. 

34See FED. R. CRIM. P. 8(a) (permitting joinder of multiple offenses if

the offenses “are of the same or similar character, or are based on the same

act or transaction . . . .”). 

UNITED STATES v. LOPEZ 2219
prejudice that Lopez may have experienced.35 We affirm the

district court’s denial of Lopez’s motion to sever counts. 

III. CONCLUSION

Sufficient evidence supported Lopez’s convictions for possession of cocaine with intent to distribute and for possession

of a firearm in furtherance of a drug trafficking offense. Additionally, the district court’s jury instruction, which did not

separately define “in furtherance,” was proper. Any ambiguity

in the instruction as given benefitted Lopez. Finally, the district court did not abuse its discretion when it denied Lopez’s

motion to sever the firearm possession and illegal reentry

charges from the drug-related counts. The charges were

extensively interrelated and reasonably presented in a consolidated trial in the absence of manifest prejudice to Lopez. 

AFFIRMED. 

35See Brashier, 548 F.2d at 1323. 

2220 UNITED STATES v. LOPEZ