UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5132

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

BOBBY LARUE THOMPSON,

Defendant – Appellant.

No. 10-5228

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

BOBBY LARUE THOMPSON,

Defendant – Appellee.

Appeals from the United States District Court for the Western 

District of North Carolina, at Charlotte. Graham C. Mullen, 

Senior District Judge. (3:05-cr-00294-GCM-2)

Submitted: October 27, 2011 Decided: November 17, 2011

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ann L. Hester, Steven G. 

Slawinski, Assistant Federal Public Defenders, Charlotte, North 

Carolina, for Appellant/Cross-Appellee. Anne M. Tompkins, 

United States Attorney, Dana O. Washington, Assistant United 

States Attorney, Charlotte, North Carolina, for Appellee/CrossAppellant. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Bobby Larue Thompson (“Thompson”), his younger brother 

Tido Maurice Thompson (“Tido”), his father Bobby Larue Thompson, 

Sr. (“Bull”), and four others were charged in a federal 

indictment with drug and firearm offenses. Following a jury 

trial, Thompson was convicted of conspiring to possess with 

intent to distribute cocaine base (Count One), in violation of 

21 U.S.C. § 846 (2006), and possession with intent to distribute 

cocaine base (Counts Two, Six, and Seven), in violation of 21 

U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2011). The 

district court sentenced Thompson to 151 months’ imprisonment. 

In his appeal, Thompson challenges the sufficiency of the 

evidence supporting Counts Two, Six, and Seven and the 

application of a two-level enhancement for possession of a 

firearm. The Government has filed a cross-appeal in which it 

argues that the district court erred in concluding that 

Thompson’s prior North Carolina convictions were not felonies 

exposing him to enhanced statutory penalties. We affirm.

We begin by reviewing the sufficiency of the evidence. 

We review de novo challenges to the sufficiency of the evidence 

supporting a jury verdict. United States v. Kelly, 510 F.3d 

433, 440 (4th Cir. 2007); see United States v. Green, 599 F.3d 

360, 367 (4th Cir.) (stating standard of review for denial of 

Fed. R. Crim. P. 29 motion), cert. denied, 131 S. Ct. 271 
4

(2010). A jury verdict should be affirmed where, “viewing the 

evidence in the light most favorable to the prosecution, [it] is 

supported by substantial evidence.” United States v. King, 628 

F.3d 693, 700 (4th Cir. 2011) (internal quotation marks 

omitted). Substantial evidence is such “evidence that a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 

(4th Cir. 1996) (en banc).

To convict Thompson of violating 21 U.S.C. § 841, the 

Government was required to prove beyond a reasonable doubt that 

Thompson: (1) knowingly, (2) possessed the controlled substance,

(3) with the intent to distribute it. Id. at 873. United 

States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006). 

“Constructive possession is established if it is shown that the 

defendant exercised, or had the power to exercise, dominion and 

control over the item.” Id. (internal quotation marks omitted). 

We have explained that “[a] defendant is guilty of aiding and 

abetting if he has knowingly associated himself with and 

participated in the criminal venture.” Burgos, 94 F.3d at 873. 

Moreover, in order “to be convicted of aiding and abetting, 

participation in every stage of an illegal venture is not 

required, only participation at some stage accompanied by 
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knowledge of the result and intent to bring about that result.” 

Id. (internal quotation marks and alterations omitted).

Thompson maintains that the Government presented no 

evidence that he possessed crack cocaine, either actually or 

constructively, on any of the occasions charged in Counts Two, 

Six, and Seven. He asserts that, with respect to Counts Two and 

Seven, there was no evidence as to whom the drugs belonged and 

thus no evidence he aided and abetted the owner of the drugs. 

Thompson notes that the police informant indicated that Tido 

sold the drugs at issue in Count Six and contends that there is 

no evidence that he was involved in that transaction.

Although mere presence on the premises where drugs are 

found in insufficient to prove constructive possession, United 

States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), “a fact 

finder may properly consider the totality of the circumstances 

surrounding the defendant’s arrest and his alleged possession.” 

United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert. 

denied, 131 S. Ct. 3440 (2010). Our review of the trial 

testimony leads us to conclude that substantial evidence 

supports the jury’s verdict on Counts Two, Six, and Seven. 

Next, Thompson argues that the district court clearly 

erred when it applied a two-level enhancement after concluding 

he possessed a firearm in connection with the drug offenses. 

See U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) 
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(2007). Thompson asserts that he was never seen with a gun 

during the course of the conspiracy and notes that the district 

court granted his Rule 29 motion as to the firearms offenses 

charged in the indictment.

In assessing a sentencing court’s application of the 

Guidelines, this court reviews its legal conclusions de novo and 

its factual findings for clear error. United States v. Mehta, 

594 F.3d 277, 281 (4th Cir.), cert. denied, 131 S. Ct. 279 

(2010). The Government must prove the facts needed to support a 

sentencing enhancement by a preponderance of the evidence. 

United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).

When a defendant possesses a dangerous weapon in 

connection with a drug offense, the Guidelines authorize a twolevel increase in the defendant’s offense level. USSG 

§ 2D1.1(b)(1). The commentary explains that the enhancement

“should be applied if the weapon was present, unless it is 

clearly improbable that the weapon was connected with the 

offense.” USSG § 2D1.1 cmt. n.3. “[T]he Government need show

only that the weapon was possessed during the relevant illegal 

drug activity.” United States v. McAllister, 272 F.3d 228, 234 

(4th Cir. 2001). “[P]roof of constructive possession of the 

dangerous weapon is sufficient, and the Government is entitled 

to rely on circumstantial evidence to carry its burden.” United 

States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010). 
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Accordingly, the Government may rely on the type of firearm 

involved and the proximity of the firearm to illegal narcotics. 

Id.

We have reviewed the record with these standards in 

mind and conclude that the district court did not clearly err in 

applying the firearm enhancement. See McAllister, 272 F.3d at 

234 (stating standard of review). Although Thompson was not the 

only occupant of the Eleanor Drive residence where officers

seized the firearm, his Guidelines range is calculated based on 

“all reasonably foreseeable acts and omissions of others in 

furtherance of the jointly undertaken criminal activity.” USSG 

§ 1B1.3(a)(1)(B). Because Thompson does not contest the 

sufficiency of the evidence as to the conspiracy charged in 

Count One and a firearm was found in close proximity to 

narcotics in the residence where police had observed drug 

activity, the district court properly applied the enhancement. 

In a cross-appeal, the Government argues that the 

district court erred in concluding that Thompson’s prior 

convictions were not felony convictions and could not support an 

enhanced statutory sentence. This argument now is foreclosed by 

our recent decision in United States v. Simmons, 649 F.3d 237 

(4th Cir. 2011) (en banc).

Based on the foregoing, we affirm the judgment of the 

district court. We dispense with oral argument because the 
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facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED