*The HONORABLE JOHN B. JONES, United States District

Judge for the District of South Dakota, sitting by

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 RICHARD 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 in

violation of 21 U.S.C. § 841(a)(1) (1994); carrying a firearm during and

in relation to a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1) (1994); and illegal possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1) (1994). At the close of the

government's case and again at the close of all evidence, White moved for

a judgment of acquittal on the ground that the evidence against him was

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.

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charges. The District Court denied those motions. After the jury found 1

White guilty as charged, the District Court sentenced him to an aggregate

term of 147 months in prison followed by four years of supervised release.

White timely appeals his convictions and sentence. We affirm.

I.

White raises challenges to the sufficiency of the evidence. In

reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the government, resolving evidentiary conflicts in

favor of the government, and accepting all reasonable inferences drawn from

the evidence that support the jury's verdict. United States v. Bates, No.

95-2280, slip op. at 5-6 (8th Cir. March 5, 1996). The jury's verdict must

be upheld if there is an interpretation of the evidence that would allow

a reasonable-minded jury to find the defendant guilty beyond a reasonable

doubt. Id. at 6. 

White argues that the evidence is insufficient to convict him of

possession of cocaine base with intent to distribute. We disagree. 

First, there is more than sufficient evidence that White knowingly

possessed the cocaine base. Following his arrest and advisement of his

Miranda rights, White twice admitted being in knowing possession of the

cocaine base in both an oral and a written statement to the police, saying

that he had the cocaine base in his possession to deliver to a friend.

Officers Dailey and McLin testified that they initially encountered White

on a residential street in St. Louis while they were looking for an

individual named Michael Cooper, for whom the officers had an
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arrest warrant. Because White fit the description of Cooper, the officers

approached White and asked him if he was Cooper. Without responding, White

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 plastic bag from his right hand. Subsequently, Officer McLin

retrieved the bag and recognized its contents as cocaine base. Joseph

Crow, a criminalist and expert on drug analysis with the St. Louis Police

Department, identified the contents of the plastic bag as 25.81 grams of

cocaine base. Considering this evidence, we find unpersuasive White's

argument that the evidence 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.) (holding

evidence sufficient to sustain defendant's conviction of possession of

firearm without fingerprint evidence where witness testified that he saw

gun in defendant's possession and saw defendant drop gun in precise

location where gun was found), cert. denied, 115 S. Ct. 253 (1994). 

Second, as to intent to distribute, White admitted in both an oral

and a written statement to the police that he had the cocaine base in his

possession to transfer to another individual. In addition, evidence of

intent to distribute may be inferred from possession of a distributable

quantity of drugs, i.e., a quantity larger than that which a mere drug user

ordinarily would possess for personal use. See United States v. Thompson,

925 F.2d 234, 237 (8th Cir. 1991). Where there is additional evidence of

plan or intent to distribute, possession of as little as five grams of

cocaine has been held to 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, Sergeant

Gilmore testified that the amount of cocaine base that White possessed,

25.81 grams, has a street value in excess of $3,000, and that such a

quantity is consistent with distribution. The presence of a firearm in

White's possession,
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"generally considered a tool of the trade for drug dealers, is also

evidence of intent to distribute." See United States v. Schubel, 912 F.2d

952, 956 (8th Cir. 1990). Officer Dailey testified that while he was

chasing White, he observed White reach into the rear waistband of his pants

and discard a magazine clip for a pistol. During the pursuit, White

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 was

guilty of possession of cocaine base with intent to distribute. 

White also challenges the sufficiency of the evidence underlying his

conviction for carrying a firearm during the commission of a drug

trafficking crime. White argues there was insufficient evidence to

establish that he was in possession of a firearm, asserting that he did not

"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, because White was convicted of "carrying," not "using,"

a firearm during and in relation to a drug trafficking offense. The

Supreme Court in Bailey held that to sustain a conviction under the "use"

prong of § 924(c)(1), the prosecution must show that the defendant actively

employed the firearm during and in relation to the predicate crime. Id.

at 509. Here, by contrast, we are concerned solely with the issue of

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 trafficking crime, . . . uses or carries a firearm" is subject

to imprisonment for five years. It is clear that § 924(c)(1) specifies two

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 some

offenders who would not satisfy the 'use' prong within the reach of the

statute." 116 S. Ct. at 509. The words of the statute are to be given

their "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 person." Webster's Third New International Dictionary

343 (3d ed. 1981). Black's Law Dictionary similarly defines "carry" as

"[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 the

clothing or in a pocket, 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 gun

hidden in his clothing throughout a drug transaction." Bailey, 116 S. Ct.

at 507.

Thus, in order to sustain a conviction for "carrying" a firearm in

violation of § 924(c)(1), the government must prove that White bore the

firearm on or about his person during and in relation to a drug trafficking

offense. We conclude there is sufficient evidence to support the jury's

verdict. In his post-arrest statements to the police, White acknowledged

possession of the cocaine base and gun. In addition, Officer Dailey

testified that while he was chasing White, he saw White reach into his rear

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

caliber Glock semi-automatic pistol with the magazine missing. Officer

Dailey also found a loaded magazine for a .45 caliber Glock semi-automatic

pistol at the arrest scene. The officers later interviewed White's

girlfriend, Annette Smith, who resided with White. During the interview,

the police requested and received permission from Smith to search the

residence. Smith led the officers to a dresser drawer where they

discovered loose
 Possession of cocaine base with intent to distribute is a

2

drug trafficking offense within the meaning of § 924(c). United

States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988). 

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rounds of .45 caliber ammunition identical to the rounds found in the

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 lot where any passerby could

have deposited it. He also indicated that when the gun and magazine were

tested for his fingerprints, the tests proved inconclusive. Both of these

theories were fully presented to and apparently rejected by the jury.

Moreover, as we concluded earlier with regard to the absence of fingerprint

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 White had carried the gun. Rather, viewing the evidence

in the light most favorable to sustaining the jury verdict, we believe the

government's proof sufficiently supports the jury's finding that White had

carried the firearm while possessing the cocaine base with intent to

distribute it. See Haney, 23 F.3d at 1416-17; United States v. Rankin, 902

F.2d 1344, 1345-46 (8th 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 officer

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 with

intent to distribute, claiming that the increased penalties for cocaine

base, as compared to the penalties for powder cocaine, have a disparate

impact upon African-Americans in violation of the 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 applies 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 to

vacate and remand his sentence.

White's arguments lack merit. We have consistently rejected the

claim that any disparate impact occasioned by the distinction between the

penalties for cocaine base and powder cocaine violates the Equal Protection

Clause. See United States v. Jackson, 67 F.3d 1359, 1367 (8th Cir. 1995),

petition for cert. filed, (U.S. Jan. 9, 1996) (No. 95-7436); United States

v. Delaney, 52 F.3d 182, 189 (8th Cir.), cert. denied, 116 S. Ct. 209

(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 is

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), in

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.