UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4177

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL DAVID TURNER, a/k/a Michael David Bunch, 

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Jerome B. Friedman, District

Judge. (2:07-cr-00040-JBF-TEM-1)

Submitted: August 15, 2008 Decided: October 3, 2008

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J.T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia, for Appellant.

Chuck Rosenberg, United States Attorney, Laura M. Everhart,

Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael David Turner was convicted by a jury and

sentenced to 324 months in prison for conspiracy to possess with

intent to distribute cocaine, cocaine base, and marijuana, in

violation of 21 U.S.C. § 846 (2000), one count each of distribution

of cocaine, possession with intent to distribute cocaine, and

possession with intent to distribute marijuana, in violation of 21

U.S.C. § 841 (2000), possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

(2000), and possession of a firearm by a felon, in violation of 18

U.S.C. § 922(g)(1) (2000). Turner asserts that the district court

erred when it: (i) denied his motion to suppress the evidence

obtained as a result of an allegedly invalid anticipatory search

warrant; (ii) refused to instruct the jury regarding simple

possession of cocaine as a lesser-included offense; and (iii)

denied his Fed. R. Crim. P. 29 motion for judgment of acquittal.

Finding no error, we affirm. 

We conclude that the district court correctly denied

Turner’s motion to suppress. The district court correctly

determined that the anticipatory search warrant was supported by

probable cause because the warrant application affidavit attested

that a police-intercepted package containing approximately $20,000

worth of cocaine would be found at a particular address when that

package was delivered to that address by a police officer dressed
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as a FedEx delivery person. See United States v. Grubbs, 547 U.S.

90, 96-97 (2006). 

We also find that the district court did not abuse its

discretion in refusing to instruct the jury regarding cocaine

possession as a lesser-included offense to the distribution

charges. Given the significant amount of evidence introduced by

the Government regarding Turner’s drug distribution activities,

whether Turner was a distributor was not “sufficiently in dispute

to allow a jury consistently to find the defendant innocent of the

greater and guilty of the lesser offense.” United States v. Baker,

985 F.2d 1248, 1258-59 (4th Cir. 1993); see also United States v.

Wright, 131 F.3d 1111, 1112 (4th Cir. 1997) (holding that for an

element to be “sufficiently in dispute,” either “the testimony on

the distinguishing element must be sharply conflicting, or the

conclusion as to the lesser offense must be fairly inferable from

the evidence presented”) (internal citation and quotation marks

omitted). 

Last, we find the district court correctly denied

Turner’s Rule 29 motion. The Government’s evidence was more than

sufficient to establish that Turner committed the crimes of which

the jury convicted him; the Government produced several witnesses

who testified that Turner was a distributor of marijuana and

cocaine, that he possessed significant amounts of those drugs in

his residence and had the means of packaging the drugs for
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distribution, that Turner possessed and carried a gun when he sold

drugs, and that he and his co-conspirator were engaged in a

partnership whereby the co-conspirator would obtain drugs and

Turner would sell them for profit. Because “a reasonable finder of

fact could accept [the Government’s evidence] as adequate and

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

reasonable doubt,” the jury’s verdict must be sustained. See

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). 

Based on the foregoing, we 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