UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-41269

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN DERRICK SKIPPER,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

January 26, 1996

Before JOLLY, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

John Derrick Skipper appeals his conviction for possession of

crack cocaine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1). Finding insufficient evidence to support the jury’s

verdict, we reverse, vacate the sentence and remand for sentencing

on the lesser included offense of simple possession.

BACKGROUND

While patrolling Interstate Highway 10, Deputy Sheriff Todd

Richards and criminal justice stud ent Benny Soileau observed a

Nissan automobile changi ng lanes erratically. Officer Richards

closed on th e Nissan and activated the lights of his patrol car.

As the Nissan moved to the right lane, Richards and Soileau2

observed a small plastic bag fly from the driver’s side of the car.

After pulling over to the shoulder, John Derrick Skipper, the

driver and owner of the Nissan, exited his car and approached the

police car. Officer Richards immediately placed Skipper under

arrest. Richards then went to the Nissan, where he found a

passenger, Jerome Cutright, seated in the car. Officer Richards

next placed Skipper in the patrol car and drove to retrieve the bag

from the side of the road. The bag contained 2.89 grams of crack

cocaine. Richards also searched the Nissan and found one straightedge razor between the front two seats.

At trial, pursuant to Federal Rule of Evidence 404( b), the

district court admitted into evidence two state-court convictions

for crimes allegedly committed by Skipper. Government Exhibit #3

was a certified copy of a judgment against “John Derrick Skipper”

indicating that Appellant pled guilty to possession of a controlled

substance. An expert testified that the fingerprints on this

conviction matched Appellant’s fingerprints. Government Exhibit #2

w as a certified copy of a deferred adjudication order indicating

that “John D. Skipper” was placed on ten years probation for

possession of a controlled substance. However, this order did not

bear any fingerprin ts, and the government did not otherwise

identify Appellant as the person named in the order.

The jury convicted Skipper of possession of crack cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On

appeal, Skipper challenges the sufficiency of the evidence and also3

argues that the district court erred by admitting the deferred

adjudication order.

DISCUSSION

I. Sufficiency of the Evidence

“In reviewing an appeal based on insufficient evidence, the

standard is whether any reasonable trier of fact could have found

that the evidence established the appellant’s guilt beyond a

reasonable doubt.” U nited States v. Jaramillo

, 42 F.3d 920, 922-23

(5th Cir.), cert. denied

, 115 S. Ct. 2014 (1995). We review the

evidence in the light most favorable to the verdict. Id . at 923.

To establish a violation of 21 U.S.C. § 841(a)(1), “the

government must prove knowing po ssession of the contraband with

intent to distribute.” U nited States v. Cardenas

, 9 F.3d 1139,

1158 (5th Cir . 1993), c ert

. denied

, 114 S. Ct. 2150 (1994). The

elements of the offense may be proven either by direct or

circumstantial evidence. Id

.

A. Knowing Possession

Possession ma y be either actual or constructive and may be

joint among several people. I d

. “Constructive possession has been

defined as ownership, dominion, or control over the contraband, or

over the vehicle in which the contraband was concealed.” U nited

States v. Gonzalez-Lira , 936 F.2d 184, 192 (5th Cir. 1991).

T here was sufficient evidence for the jury to conclude that

Skipper knowingly possessed the crack cocaine. Skipper was the

owner and driver of the Nissan. Richards and Soileau saw the

package come from the driver’s side of the car, and the driver’s4

side window and sunroof were open. In addition, Cutright testified

that he did not throw the bag from the car, that the passenger side

window was closed, and that he was asleep until the police pulled

the car over. Based on this evidence, the jury could reasonably

infer that Skipper possessed the bag of crack cocaine and threw it

from the car.

B. Intent to Distribute

A quantity of drugs consistent with personal use does not

raise an inference of intent to distribute in the absence of

additional evidence. S ee Turner v. United States

, 396 U.S. 398, 90

S. Ct. 642, 656 (1970) (14.68 grams of cocaine insufficient to

susta in a conviction for distribution); U nited States v. Olvera

,

523 F.2d 1252, 1253 (5th Cir. 1975) (1.84 grams of cocaine-sugar

mixture insufficient to infer intent to distribute); United States

v. Onick

, 889 F.2d 1425 (5th Cir. 1989) (7.7 gram s of heroin and

cocaine alone not sufficient to infer intent). Such a quantity of

a controlled substance, however, is sufficient when augme nted by

“the presence of distribution paraphernalia, large quantities of

cash, or the value and quality of the substance.” U nited States v.

Munoz , 957 F.2d 171, 174 (5th Cir.), cert. denied , 113 S. Ct. 332

(1992).

Skipper possessed 2.89 grams of crack cocaine. The government

introduced some testimony indicating that t his amount of drugs

could suggest drug dealing. Because this quantity is not clearly

inconsistent with personal use, however, we hold as a matter of law

that this quantity alone is insufficient to prove intent.5

Additional evidence is necessary. S ee Onick

, 889 F.2d at 1431

(“While the jury could not in fer intent from the small amount of

heroin and cocaine (7.7 grams) alone, it could infer intent from

the combination of the drugs with the drug paraphernalia,

particularly the 4,063 empty gelcaps.”).

The prosecut ion failed to provide this additional evidence.

According to the government, the straight-edge razor found in the

Nissan and th e absence of smoking paraphernalia suggest that

Skipper intended to distribute the crack cocaine in his possession.

We disagree. Even viewed in the light most favorable to the

government, the evidence is insufficient to prove Skipper’s intent

beyond a reasonable doubt. At trial Officer Richards acknowledged

that a razor may be used to cut crack cocaine into smaller pieces

for personal consumption. Paraphernalia that could be consistent

with personal use does not provide a sound basis for inferring

intent to distribute. Thus, we do not believe that a reasonable

jury could conclude beyond a reasonable doubt that Skipper intended

to distribute the 2.89 grams of crack cocaine. Accordingly, we

reverse Appellant’s conviction under 21 U.S.C. § 841(a)(1).

C. Lesser Included Offense

We next consider how best to dispose of this case on appeal,

given that there was sufficient evidence to find Skipper guilty of

simple possession , but not possession with intent to distribute.

Simple possession in violation of 21 U.S.C. § 844(a) is a lesser

included offense of 21 U.S.C. § 841(a)(1), possession with the

intent to distribute. S ee United States v. Steen

, 55 F.3d 10 22,1 Section 2106 provides that a Court of Appeals may “affirm,

modify, vacate, set aside or reverse any judgment, decree, or order

of a court lawfully broug ht before it for review, and may remand

the cause and direct th e entry of such appropriate judgment,

decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106.

6 1031 (5th Cir.), cert. denied

, 116 S. Ct. 577 (1995). Because the

jury necessarily found all of the elements of simple possession in

rendering its verdict, we are empowered under 28 U.S.C. § 2106 to

reduce Skipper’s Section 841 convicti on to a Section 844

conviction. 1 S ee, e.g., United States v. Swiderski

, 548 F .2d 445

(2d Cir. 1977). Therefore, we remand for the entry of judgment

accordingly and for sentencing on the lesser included offense.

II. Admissibility of Deferred Adjudication Order

We review the admission of evidence only for an abuse of

discretion. U nited States v. Eakes

, 783 F.2d 499, 506-07 (5th

Cir.), cert. denied

, 477 U.S. 906 (1986). Furthermore, even if we

find an abuse of discretion in the admission or exclusion of

evidence, we review the error under the h armless error doctrine.

United States v. Scott

, 678 F.2d 606, 612 (5th Cir.), cert. denied

,

459 U.S. 972 (1982). Finally, we must affirm evidentiary rulings

unless they affect a substantial right of the complaining party.

Fed. R. Evid. 103(a); Foster v. Ford Motor Co. , 621 F.2d 715, 721

(5th Cir. 1980).

The district court admitted into evidence a deferred

adjudication order indicating that a “John D. Skipper” was placed

on ten ye ars probation for possession of a controlled substance.

However, the court erred in admitting this evidence because the7

government should have been required to produce evidence proving

that Appellant was the actual “John D. Skipper” named in the

deferred adjudication order. Rule 901(a) of the Federal Rules of

Evidence provides: “The requirement of authentication or

identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.” We hold that the

mere similarity in name between a criminal defendant and a person

named in a prior conviction alone does not satisfy Rule 901's

identification requirement.

Neverthel ess, we find the court’s error harmless. “In a

harmless error examinatio n, ‘[w]e must view the error, not in

isolation, but in relation to the e ntire proceedings.’” U nited

States v. Williams

, 957 F.2d 1238, 1244 (5th Cir. 1992) (quoting

United States v. Brown

, 692 F.2d 345, 350 (5th Ci r. 1982)). “We

must decide whether the inadmissible evidence actually contributed

to the jury’s verdict.” U nited States v. Gadison

, 8 F.3d 186, 192

(5th Cir. 1993). Because the court properly admitted a similar

possession conviction and instruc ted the jury on its limited

purpose, the improperly admitted order did not actually contribute

to the jury’s verdict.

CONCLUSION

Accordingly, we reverse the distr i ct court’s judgment of

conviction of possession with intent to distribute under 21 U.S.C.

§ 841(a)(1) and vacate the sentence. We remand the case to the

district court with instructions to enter a judgment of guilt of8

simple possession under 21 U.S.C. § 844(a) and to sentence Skipper

for that offense.

Conviction REVERSED, sentence VACATED and cause REMANDED WITH

INSTRUCTIONS.