United States of America v.  Tyrice Stanard Hauser

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4629 
TYRICE STANARD HAUSER,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-309)
Submitted: May 13, 2002
Decided: June 12, 2002
Before WIDENER, LUTTIG, TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
M. Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Angela H. Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Tyrice Stanard Hauser was convicted by a jury of one count of pos-
session of a firearm after having been convicted of a crime punishable
by more than one year in prison, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(a)(2) (West 2000). Hauser was sentenced to one
hundred twenty months in prison, three years of supervised release,
and a $100 special assessment. Hauser appeals his conviction and
sentence. Finding no error, we affirm.
Hauser first contends that the district court erred in denying his
motion for judgment of acquittal because the evidence was insuffi-
cient to prove he possessed the handgun. A jury’s verdict must be
upheld on appeal if there is substantial evidence in the record to sup-
port it. See Glasser v. United States, 315 U.S. 60, 80 (1942). In deter-
mining whether the evidence in the record is substantial, we view the
evidence in the light most favorable to the government and inquire
whether there is evidence that a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc). We do not review the credibility
of the witnesses and assume that the jury resolved all contradictions
in the testimony in favor of the government. See United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998).
The elements of a violation of § 922(g)(1) are that: "(1) the defen-
dant previously had been convicted of a crime punishable by a term
of imprisonment exceeding one year; (2) the defendant knowingly
possessed . . . the firearm; and (3) the possession was in or affecting
commerce, because the firearm had traveled in interstate or foreign
commerce." United States v. Langley, 62 F.3d 602, 606 (4th Cir.
1995) (en banc). Hauser stipulated to a disqualifying prior conviction
and the interstate or foreign commerce element. He argues the evi-
dence did not show he exercised dominion or control over the firearm
at any time. Our review of the record convinces us that the evidence
was sufficient to establish Hauser’s possession of the handgun.
Hauser next asserts that improper comments by the prosecutor dur-
ing closing argument prejudiced the jury against him and denied him
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a fair trial. A prosecutor’s improper closing argument may "so
infect[ ] the trial with unfairness as to make the resulting conviction
a denial of due process." United States v. Wilson, 135 F.3d 291, 297
(4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181
(1986)) (internal quotation marks omitted). In determining whether a
defendant’s due process rights were violated by a prosecutor’s closing
argument, we evaluate whether the remarks were, in fact, improper,
and, if so, whether the improper remarks "so prejudiced the defen-
dant’s substantial rights that the defendant was denied a fair trial." Id.
We have reviewed the challenged remarks by the prosecutor in the
context of the entire trial and closing argument by defense counsel.
We conclude that the prosecutor’s comments were not improper, but
were merely an explanation for the lack of fingerprint evidence that
was highlighted by defense counsel’s argument. See Howard v.
Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc). Moreover, even
if we were to conclude that the remarks were improper, our analysis
of those remarks under the six factors articulated in Wilson convinces
us they were not so prejudicial as to deny Hauser a fair trial. See Wil-
son, 135 F.3d at 299.
Hauser’s final argument is that the district court erred in enhancing
his offense level for possession of the handgun in connection with
another felony. A sentencing court should apply the enhancement
under § 2K2.1(b)(5) "[i]f the defendant used or possessed any firearm
or ammunition in connection with another felony offense." U.S. Sen-
tencing Guidelines Manual § 2K2.1(b)(5) (2000). The application
notes to this section define felony offense as "any offense (federal,
state, or local) punishable by imprisonment for a term exceeding one
year, whether or not a criminal charge was brought, or conviction
obtained." USSG § 2K2.1, comment. (n.7). The presentence report
recommended this enhancement because Hauser possessed a firearm
in connection with the offenses of possession with intent to sell or
deliver marijuana and possession with intent to sell or deliver cocaine.
Hauser stipulated that the contents of a plastic bag found mere
inches from the firearm included 54.5 grams of marijuana and 1.4
grams of cocaine. In addition to the firearm and drugs, $1327 in cash
was found in Hauser’s pants pockets during a search incident to his
arrest. Our review of the record convinces us that Hauser’s possession
of the handgun that was the subject of his conviction under § 922 was
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"in connection with" his possession of distribution quantities of
cocaine and marijuana. The district court therefore properly enhanced
Hauser’s sentence. See United States v. Garnett, 243 F.3d 824, 828-
28 (4th Cir. 2001); United States v. Ward, 171 F.3d 188, 195 (4th Cir.
1999).
Accordingly, we affirm Hauser’s conviction and sentence. We dis-
pense 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
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