* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40044

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ANTHONY DOUGLAS

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:06-CR-193-ALL

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Anthony Douglas appeals from conviction after a bench trial of possession

of a firearm in furtherance of a drug trafficking crime, namely, the possessing

with intent to distribute a Schedule I controlled substance: 3,4 Methylenedioxymethamphetamine/MDMA (“ecstasy”). Douglas argues that the Government did

not prove that he knowingly possessed ecstasy with the intent to distribute it,

and also failed to prove that he possessed the firearm in furtherance of the drug

crime. We disagree with both assertions and AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

October 13, 2008

Charles R. Fulbruge III

Clerk
No. 08-40044

2

Our standard for reviewing the sufficiency of the evidence in a bench trial

is “whether the finding of guilt is supported by substantial evidence, i.e.,

evidence sufficient to justify the trial judge, as the trier of fact, in concluding

beyond reasonable doubt that the defendant is guilty.” United States v. Turner,

319 F.3d 716, 720 (5th Cir. 2003) (internal citation and quotation marks

omitted). “Evidence is sufficient to support a conviction if any rational trier of

fact could have found that the evidence established guilt beyond a reasonable

doubt.” United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000),

amended in part, 226 F.3d 651 (5th Cir. 2000). We neither weigh evidence nor

evaluate the credibility of witnesses; instead, we review all the properlyadmitted evidence from the perspective most favorable to the government and

permit the trial court to draw all reasonable inferences. Turner, 319 F.3d at

720-21.

First, we evaluate the evidence regarding the underlying drug trafficking

crime. See 18 U.S.C. § 924(c)(1)(A). On April 10, 2006, Douglas was driving

from Houston, Texas to New Orleans, Louisiana, on the portion of Interstate 10

that traverses Jefferson County, Texas. The vehicle he was driving had been

rented by his passenger, Gregory Green. An officer from the county sheriff’s

department stopped the vehicle for speeding. The officer testified that he

smelled freshly burned marihuana as he neared the vehicle. During the

questioning of Douglas and Green,the officer was given permission to search the

vehicle. In the console between the front seats, 586 ecstasy tablets were

discovered. A fully loaded Glock pistol was directly on top of the tablets.

Douglas and Green were given warnings of their rights. See Miranda v.

Arizona, 384 U.S. 436 (1966). Both Douglas and Green responded to questions.

The evidence, including Green’s admissions, indicates that Green was

responsible for the drugs. Douglas claimed ownership of the pistol and had a

receipt indicating that it was purchased, with cash, two days before his arrest.

Green told the officers that the tablets belonged to him. Although Douglas now
No. 08-40044

3

argues that Green hid the ecstasy tablets with Douglas’s pistol without

Douglas’s knowledge, Douglas did not make this claim in his post-Miranda

interview. Also, while Douglas now argues that he did not know that the tablets

were in the vehicle, he did not express surprise in his post-Miranda interview

regarding the officer’s discovery of the tablets in the vehicle. Nor did he express

surprise that the pistol that he owned was hidden with the tablets. In his postMiranda interview, Douglas also suggested that he would participate in

arranging a drug deal in exchange for leniency. 

What Douglas said and what he did not say both support an inference that

he had knowledge of drug trafficking and was a willing participant with Green.

It is true that, at trial, Douglas testified that he lied when he made these and

other incriminating statements. As already noted, though, credibility choices

regarding testimony are for the trial court. Turner, 319 F.3d at 720-21.

Undisputed facts coupled with circumstantial evidence can establish knowing

possession of drugs with the requisite intent to distribute. See United States v.

Infante, 404 F.3d 376, 385 (5th Cir. 2005); United States v. Galvan-Garcia, 872

F.2d 638, 640 (5th Cir. 1989). Among the usable circumstances of guilty

knowledge is the lack of surprise when contraband is found. United States v.

Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).

Viewed in the light favorable to the conviction,the evidence was sufficient

to establish knowing possession. Regarding the requisite intent to distribute, the

tablets contained an imprint that was designed to provide the end user with

information regarding potency. Also, the arresting officer testified that the

amount of ecstasy tablets that was seized in this case is an amount that is

consistent with distribution. See United States v. Cartwright, 6 F.3d 294, 299

(5th Cir. 1993) (stating that intent to distribute can be inferred from the large

quantity of drugs involved). Thus, the evidence was also sufficient to establish

that Douglas knowingly possessed ecstasy with the intent to distribute it. 
No. 08-40044

4

The second issue regarding evidentiary sufficiency concerns possession of

the firearm “in furtherance of” drug trafficking activity under 18 U.S.C. §

924(c)(1)(A). The arresting officer testified that Douglas’s pistol, which was fully

loaded and ready to use, was lying directly on top of the ecstasy. He further

testified that the manner in which he found the pistol and the ecstasy is

consistent with the use of a weapon in furtherance of a drug trafficking crime.

An accessible pistol that is loaded and ready to use provides protection

against anyone who attempts to interfere with the drug trafficker at any stage

in his transaction. See Ceballos-Torres, 218 F.3d at 412. The close proximity of

Douglas’s pistol to the ecstasy tablets indicates that the weapon was to be used

to protect the drugs or would be accessible during a transaction to provide

protection in case the drug deal went sour. See id.; see also United States v.

Charles, 469 F.3d 402, 406-07 (5th Cir. 2006). Finally, purchasing the weapon

contemporaneously with beginning the drive to Louisiana to transport drugs for

distribution adds to the inference of a nexus between the weapon and the drugs.

This circumstantial evidence was sufficient to establish that Douglas

possessed a firearm in furtherance of drug trafficking activity.

The judgment of the district court is AFFIRMED.