## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3400

___________ United States of America, *
* Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas.
* Andre Jefferson, * [UNPUBLISHED]
* Appellant. *

___________ Submitted: January 8, 2010 Filed: February 5, 2010

___________ Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

___________ PER CURIAM. A jury found Andre Jefferson guilty of po ssessing with intent to distribute more than 5 grams but less than 50 grams of a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1); knowingly possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i); possessing a firearm after having been convictedof a felony, in violation of 18 U.S.C. § 922(g)(1); and possessing with intent to distribute more than 5 grams but less than 50 grams of a mixture and substance containing cocaine base within 1,000 feet of a public elementary school, in violation of 21 U.S.C. §§ 841(a)(1) and 860. The district court sentenced him to 210 months in prison and 10 years of supervised release. His counsel has moved to withdr aw and has filed a brief under Anders v. California , 386-2- U.S. 738 (1967), challenging the sufficien cy of the evidence to support the convictions.

We review the sufficiency of the evid ence de novo, viewing the evidence in the light most favorable to the jury’s verdict. See United States v. Myers , 575 F.3d 801, 808 (8th Cir. 2009). As to the drug offenses, we conclude that the evidence was sufficient to find Jefferson guilty of violating section 860. See21 U.S.C. § 860 (any person who violates § 841(a)(1) by possessing with intent to distribute controlled substance within 1,000 feet of real property comprising public elementary school shall be punished); United States v. Serrano-Lopez , 366 F.3d 628, 634 (8th Cir. 2004) (listing elements for possession of controlled substance with intent to distribute under § 841(a)); United States v. Cruz , 285 F.3d 692, 697 (8th Cir. 2002) (possession of contraband need not be exclusive, but may be joint; possession can be either actual or constructive); United States v. Brett , 872 F.2d 1365, 1370 (8th Cir. 1989) (intent to distribute may be inferred solely from posse ssion of large quantity of drugs; presence of firearm is also evidence of intent to distribute). However, because a violation of section 841(a) is a lesser included offense of section 860, Jefferson’s conviction for both offenses violates the Double Jeopardy Cl ause, and we must remand so the district court can vacate the judgment of conviction and sentence for the le sser offense. See United States v. Carpenter , 422 F.3d 738, 747 (8th Cir. 2005).

As to the firearm offenses, we concl ude that there was sufficient evidence to support both convictions. SeeUnited States v. Kent , 531 F.3d 642, 652 (8th Cir. 2008) (to obtain conviction for possession of fi rearm in furtherance of drug trafficking crime, government must prove nexus be tween possession of firearm and underlying drug crime; jury may infer that firearm wa s used in furtherance of drug crime when it is kept in close proximity to drugs, it is quickly accessible, and there is expert testimony regarding use of firearms in connection with drug trafficking); United States v. Lindsey , 507 F.3d 1146, 1148 (8th Cir. 2007) (per curiam) (evidence was sufficient to support conviction for possession of firearm in furtherance of drug-3- trafficking crime where defendant was sitting in driver’s seat of vehicle holding several plastic bags containing crack, de tective found firearm beneath seat where defendant was sitting, and expert testified at trial that drug dealers use firearms to protect themselves, their drugs, and their money), cert. denied , 128 S. Ct. 1328 (2008); United States v. Davis , 449 F.3d 842, 846 (8th Cir. 2006) (to obtain § 922(g)(1) conviction, government must prove be yond reasonable doubt that defendant had previously been convicted of crime punish able by prison term exceeding one year, and knowingly possessed firearm which had been in or affected interstate commerce).

Having reviewed the record i ndependently under Penson v. Ohio , 488 U.S. 75, 80 (1988), we find no other nonfrivolous issues for appeal. Accordingly, we grant defense counsel’s motion to withdraw on condition that counsel inform appellant about the procedures for filing petitions fo r rehearing and for certiorari; we deny Jefferson’s motion for new counsel; and weaffirm Jefferson’s convictions for possession of a firearm in furtherance of a drug trafficking offe nse, possession of a firearm after having been convicted of a fe lony, and possession of cocaine base within 1,000 feet of a school with intent to distri bute. We reverse and remand for the district court to vacate Jefferson’s conviction and sentence for possessing cocaine base with intent to distribute in violation of section 841(a)(1).

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