### *The H ONORABLE JOHN B. JONES, United States Distric t

Judge for the District of South Dakota, sitting b y designation. ___________ No. 95-2949

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Johnny White, * * Appellant. *

___________ Submitted: January 9, 1996 Filed: April 4, 1996

___________ Before RIC HARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES, * District Judge.

___________ BOWMAN, Circuit Judge.
Johnny White, an African-American, was tried by jury and found guilty
on charges of possession of cocaine base with intent to distribute i n violation of 21 U.S.C. § 841(a)(1) (1994); carrying a firearm during and in relati on to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (1994); and illegal possession of a fi rearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (1994). At the close of th e government's case andagain at the close of all evidence, White moved for

a judgmen t of acquittal on the ground that the evidence against him wa s insufficient as a matter of law to sustain a conviction under the

### The Honorable Charles A. Shaw, United States District Judge 1 

### for the Eastern District of Missouri.
-2- charges. The District Court denied those motions. After the jury found 1 White guilty as charg ed, the District Court sentenced him to an aggregate term of 147 months in prison followed by four ye ars of supervised release. White timely appeals his convictions and sentence. We affirm.

I.

White rai ses challenges to the sufficiency of the evidence. I n revie wing the sufficiency of the evidence, we view the evidence in th e light most favorable to the government, resolvin g evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn fro m the evidence that support the jury's verdict. U nited States v. Bates , No. 95-2280, slip op. at 5-6 (8th Cir. March 5, 1996). The jury's verdict mus t be upheld if there is an interpretation of the evidence that would allow a reasonable-minded j ury to find the defendant guilty beyond a reasonable doubt. Id. at 6.

Wh ite argues that the evidence is insufficient to convict him o f possession of cocaine base with intent to distribute. We disagree.

First, there is more than sufficient evidence that White knowingl y possessed the cocaine base. Following his arrest and advisement of hi s Mir anda rights, White twice admitted being in knowing possession of th e cocaine base in both an oral and a written state ment to the police, saying that he had the cocaine base in his possession to deliver to a friend

. Officers Dailey and M cLin testified that they initially encountered White
on a resi dential street in St. Louis while they were looking for a n individual named Michael Cooper, for whom the officers had an

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arrest warrant. Because White fit the descripti on of Cooper, the officers approached White and asked him if he was Cooper. Without responding, Whit e looked in the direction of the officers, and then fled on foot. Officer McLin testified that during the ensuing pursuit, he observed White throw
a clear pl astic bag from his right hand. Subsequently, Officer McLi n retri eved the bag and recognized its contents as cocaine base. Josep h Crow, a criminalist a nd expert on drug analysis with the St. Louis Police Department, identified the contents of the plastic bag as 25.81 grams of cocain e base. Considering this evidence, we find unpersuasive White' s argument that the evi dence is insufficient to prove that he possessed the cocaine base because the plastic bag was not tested for his fingerprints. See United States v. Haney , 23 F.3d 1413, 1416-17 (8th Cir.) (holdin g evid ence sufficient to sustain defendant's conviction of possession o f firearmwithout fingerprint evidence where witness testified that he saw gun in defendant's possession and saw defendant drop gun in precis e location where gun was found), cert. denied , 115 S. Ct. 253 (1994).

Second, as to intent to distribute, White admitted in both an ora l and a written stateme nt to the police that he had the cocaine base in his pos session to transfer to another individual. In addition, evidence o f int ent to distribute may be inferred from possession of a distributabl e quantity of drugs, i.e. , a quantity larger than that which a mere drug use r ordinarily would possess for personal use. See United States v. Thompson , 925 F.2d 234, 237 (8t h Cir. 1991). Where there is additional evidence of plan or intent to distribute, possession of as little as five grams o f cocaine has been heldto be a distributable amount. See United States v. White , 969 F.2d 681, 684 (8th Cir. 1992) (citing United States v. Ramirez , 608 F. 2d 1261, 1264 (9th Cir. 1979)). In the present case, Sergean t Gil more testified that the amount of cocaine base that White possessed , 25.81 gram s, has a street value in excess of $3,000, and that such a quantityis consistent with distribution. The presence of a firearm i n White's possession,

### -4-

"generall yconsidered a tool of the trade for drug dealers, is als o evidence of intent to distribute." See United S tates v. Schubel , 912 F.2d 952 , 956 (8th Cir. 1990). Officer Dailey testified that while he wa s chasing White, he observed White reach into the rear waistband of his pant s and di scard a magazine clip for a pistol. During the pursuit, Whit e discarded his jacket and continued to run until Officer Dailey was able to catch him. After White's arrest, Officer Dailey returned to the precise location where White discarded his jacket and found a gun underneath it. We conclude that the evidence, viewed in the light most favorable to the government, is sufficient to sustain the jury's verdict that White wa s guilty of possession of cocaine base with intent to distribute. White also challenges the sufficienc y of the evidence underlying his convi ction for carrying a firearm during the commission of a dru g traffi cking crime. White argues there was insufficient evidence t o establish that he was in possession of a firearm, asserting that he did no t "use" the firearm within the meaning of 18 U.S.C . § 924(c)(1). See Bailey v. United States , 116 S. Ct. 501, 509 (1995). This argument, however, is beside the point, bec ause White was convicted of "carrying," not "using,"
a fire arm during and in relation to a drug trafficking offense. Th e Supreme Court in Bail eyheld that to sustain a conviction under the "use" prong of § 924(c)(1), the prosecution must show that the defendant activel y employed the firearm during and in relation to the predicate crime. Id. at 509. Here, by contrast, we are concerned solely with the issue o f whether White was in fact "carrying" the firearm within the meaning of § 924(c)(1).
Under 18 U.S.C. § 924(c)(1) "[w]hoever, during and in relation to any . . . drug traffickin g crime, . . . uses or carries a firearm" is subject to imprisonment for five years. It is clear that § 924(c)(1) specifies tw o alternative types of conduct with a firearm, "uses" or "carries," either
one of which provides a basis for prosecution under the statute. As the Supreme Court in Bailey

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observed, "[t]he 'carry' prong of section 924(c)(1) . . . brings som e offenders who would not satisfy the 'use' prong within the reach of th e statute." 116 S. Ct. at 509. The words of the statute are to be give n the ir "ordinary" or "natural" meaning. See id. at 506. Webster' s Dictionary defines "carry" as "to move while supporting" or "to hold, wear , or have upon one's pe rson." Webster's Third New International Dictionary 343 (3d ed. 1981). Black's Law Dictionary similarly defines "carry" a s "[t]o have or bear upon or about one's person," and defines "carry arms or weapons" as "[t]o wear, bear, or carry them upon the person or in th e clothing or in a pock et, for the purpose of use." Black's Law Dictionary 214 (6th ed. 1990). The Supreme Court in Bailey concluded that "a firearm

can be carried without being used, e.g., when an offender keeps a gu n hidden in his clothing throughout a drug transac tion." Bailey , 116 S. Ct. at 507.

Thus, i n order to sustain a conviction for "carrying" a firearm i n violation of § 924(c)(1), the government must prove that White bore th e firearm on or about his person during and in relation to a drug traffickin g offense. We conclude there is sufficient evidence to support the jury's verdict. In his post -arrest statements to the police, White acknowledged poss ession of the cocaine base and gun. In addition, Officer Daile y testified that while he was chasing White, he saw White reach into his rea r waistband and drop a black magazine clip for a pistol. Following White's arrest, Officer Dailey returned to the scene of the foot chase and found a firearm underneath White's jacket. The firearm was identified as a .45 calibe r Glock semi-automatic pistol with the magazine missing. Office r Dailey also found a loaded magazine for a .45 ca liber Glock semi-automatic pistol at the arrest scene. The officers later interviewed White' s girlfriend, Annette S mith, who resided with White. During the interview, the pol ice requested and received permission from Smith to search th e residenc e. Smith led the officers to a dresser drawer where the y discovered loose

### Possession of cocaine base with intent to distribute is a 2 

### drug trafficking offense within the meaning of § 924(c). Unite d States v. Matra , 841 F.2d 837, 843 (8th Cir. 1988).
-6- rounds of .45 caliber ammunition identical to the rounds found in th e discarded magazine.

At trial, White denied that he had possession of the gun and stated that the police had found the gun in a vacant lo t where any passerby could have deposited it. H e also indicated that when the gun and magazine were tested for his fingerprints, the tests proved in conclusive. Both of these theorie s were fully presented to and apparently rejected by the jury

. Moreover, as we concluded earlier with regard to the absence of fingerprin t evidence on the plastic bag, here too, a lack of evidence that White' s fingerprints were on the gun did not render it impermissible for the jury to conclude that Whit e had carried the gun. Rather, viewing the evidence in the light most favorable to sustaining the ju ry verdict, we believe the government's proof sufficiently supports the jur y's finding that White had
carr ied the firearm while possessing the cocaine base with intent t o distribute it. See Haney , 23 F.3d at 1416-17; United States v. Rankin , 90 2 F.2d 1344, 1345-46 (8 th Cir. 1990) (finding sufficient evidence supported defendant's conviction for possession of firearm where officer testified that he saw defendant drop dark object to ground in spot where office r later retrieved firearm). Accordingly, we conclude that White' s § 924(c)(1) conviction must stand. 2

II.

White challenges his sentence for possession of cocaine base wit h intent to distribute, claiming that the increased penalties for cocain e base, as compared to the penalties for powder cocaine, have a disparat e impact upon African-Americans in violation of th e Equal Protection Clause. White further argues that because of

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alleged ambiguity in the penalty provisions for cocaine base violations, the rule of lenity ap plies and he should be sentenced consistent with the penalties for powder cocaine violations. Basing his arguments on United States v. Davis , 864 F. Supp. 1303 (N.D. Ga. 1994), White urges us t o vacate and remand his sentence.

White's arguments lack merit. We have consistently rejected th e claim that any dispar ate impact occasioned by the distinction between the penalties for cocaine base and powder cocaine violates the Equal Protectio n Clause. See United States v. Jackson , 67 F.3d 1 359, 1367 (8th Cir. 1995), petition for cert. filed , (U.S. Jan. 9, 1996) (N o. 95-7436); United States

v. Delane y , 52 F.3d 182, 189 (8th Cir.), cert. denied , 116 S. Ct. 20 9 (1995); United States v. Clary , 34 F.3d 709, 710 -14 (8th Cir. 1994), cert. denied , 115 S. Ct. 1172 (1995). White's rule-of-lenity argument i s similarly foreclosed by our decision in United States v. Jackson , 64 F.3d 1213, 1219-20 (8th Cir. 1995), cert. denied , 116 S. Ct. 966 (1996), i n which we considered this argument and found it to be without merit.

III.

White's convictions and sentence are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.