UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5051

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO STOWE MCDANIEL, a/k/a Fatal Fatal,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:05-cr-00014)

Submitted: June 2, 2008 Decided: August 25, 2008

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew Collin Joseph, Charlotte, North Carolina, for Appellant.

Gretchen C. F. Shappert, United States Attorney, Matthew T.

Martens, Assistant United States Attorney, Charlotte, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Antonio Stowe McDaniel was charged with one count of

possessing more than five grams of cocaine base with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) (2000) (“Count

One”); one count of possession of a firearm during and in relation

to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)

(2000) (“Count Two”); one count of possession of a firearm by a

felon, in violation of 18 U.S.C. § 922(g) (2000) (“Count Three”);

and one count of possession of body armor by a felon convicted of

a crime of violence, in violation of 18 U.S.C. § 931(a)(1) (2000)

(“Count Four”). (JA 10-11). McDaniel pled guilty to Count Four.

Following a jury trial, McDaniel was convicted of Counts One, Two

and Three. On appeal, McDaniel challenges the sufficiency of the

evidence on Counts One and Two. For the following reasons, we

affirm.

Because McDaniel did not make a Fed. R. Crim. P. 29

motion for judgment of acquittal in the district court, our review

is limited to plain error. United States v. Wallace, 515 F.3d 327

(4th Cir. 2008). To establish plain error, McDaniel must show that

an error occurred, that it was plain, and that it affected his

substantial rights. United States v. Olano, 507 U.S. 725, 732

(1993). Even when these conditions are satisfied, this court will

only exercise its discretion to correct the error if it “seriously
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affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736. 

The elements of a § 841(a) offense are: “(1) possession

of the narcotic controlled substance, (2) knowledge of the

possession, and (3) intent to distribute the narcotic controlled

substance.” United States v. Randall, 171 F.3d 195, 209 (4th Cir.

1999). The possession element may be established by proof of

actual or constructive possession. United States v. Burgos, 94

F.3d 849, 873 (4th Cir. 1996); United States v. Rusher, 966 F.2d

868, 878 (4th Cir. 1992). “A person has constructive possession of

a narcotic if he knows of its presence and has the power to

exercise dominion and control over it.” United States v. Schocket,

753 F.2d 336, 340 (4th Cir. 1985). 

To establish a violation of 18 U.S.C. § 924(c), the

Government must prove that the firearm “furthered, advanced, or

helped forward a drug trafficking crime.” United States v. Lomax,

293 F.3d 701, 705 (4th Cir. 2002). Factors that might lead a

reasonable trier of fact to conclude that the requisite nexus

existed between the firearm and the drug offense include: “‘the

type of drug activity that is being conducted, accessibility of the

firearm, the type of weapon . . . , whether the gun is loaded,

proximity to drugs or drug profits, and the time and circumstances

under which the gun is found.’” Id. (quoting United States v.

Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).
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“Ultimately, the test is whether a reasonable jury could, on the

evidence presented at trial, find beyond a reasonable doubt that

possession of the firearm facilitated a drug trafficking

crime . . .; ‘in furtherance’ means that the gun afforded some

advantage (actual or potential, real or contingent) relevant to the

vicissitudes of drug trafficking.” United States v. Lewter, 402

F.3d 319, 322 (2d Cir. 2005). 

Our review of the record leads us to conclude that the

evidence presented to the jury was sufficient to prove that

McDaniel possessed with intent to distribute cocaine base and

possessed a firearm in furtherance of a drug trafficking crime.

Accordingly, we find no error in the jury’s verdict and therefore

affirm the district court’s judgment. 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