IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60186

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

ELIJAH HOGGATT,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Mississippi (5:99-CR-7-ALL-BrN)

February 21, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Elijah Hoggatt appeals his conviction and sentence for

distribution of crack cocaine and possession of crack cocaine with

intent to distribute. Hoggatt raises four challenges. First, he

argues that the evidence was insufficient to support his possession

with intent to distribute conviction. Second, he argues that the

evidence was insufficient to support his distribution conviction.

Third, he argues that the evidence was insufficient for him to be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. sentenced for possession of crack cocaine rather than powder

cocaine. Fourth, he argues that his sentence violated Apprendi v.

New Jersey.1 Finding no error, we reject these arguments and

affirm.

I

On the evening of June 2, 1998, Chris Minor, a paid informant

for the Adams County, Mississippi, Narcotics units, went to a

trailer rented by Jacklyn Mitchell to purchase drugs. He was

wearing a wire and law enforcement officers observed him from a

distance. At the trailer, he allegedly purchased about a gram of

crack cocaine from Hoggatt. The law enforcement officers then

obtained a warrant to search the trailer based on this sale. In

the trailer they found a suitcase with about 842 grams of crack

cocaine.

Hoggatt was convicted for distribution of the gram of crack

and for possession with intent to distribute the entire amount

found in the trailer. He appealed.

II

Hoggatt first argues that the evidence was insufficient to

establish that he had constructive possession of the drugs found in

the suitcase in the closet of Mitchell’s trailer. In evaluating

the sufficiency of the evidence, this court asks whether a

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(2000).

2 reasonable trier of fact could have found that the evidence

established the essential elements of the crime beyond a reasonable

doubt.2 We consider the evidence in the light most favorable to

the verdict, drawing all reasonable inferences and credibility

choices in support of the verdict.3

Hoggatt was not in actual possession of the drugs, so the

government had to show he was in constructive possession.

Constructive possession may be proved by circumstantial evidence

demonstrating dominion or control over the drugs or the residence

where the drugs are found.4 Both Minor and the manager of

Mitchell’s trailer park testified that Hoggatt lived with Mitchell

in the trailer where the drugs were found. Minor testified he had

purchased drugs from Hoggatt at the trailer on more than one

occasion. The law enforcement officers found notes from Hoggatt to

Mitchell saying he would be back soon, which permits an inference

that Hoggatt lived in the trailer. This evidence is sufficient to

prove that Hoggatt had dominion or control over the trailer.

Although Hoggatt points to contrary evidence, the jury was free to

credit some testimony over other testimony.

III

2 See United States v. Ortega Reyna,

(5th Cir. 1998). 3 See

4 See United States v. Onick,

(5th Cir. 1990).

3 Hoggatt’s distribution conviction was based on the testimony

of Minor. Hoggatt argues that Minor’s testimony was so incredible

that the jury was not entitled to give it credit. It is true that

Minor was a paid informant, but the trial court observed all of the

safeguards necessary to ensure that the jury treated the testimony

of a paid informant with proper caution. Hoggatt was given ample

opportunity to cross-examine Minor, Hoggatt was allowed to bring

Minor’s potential bias to the jury’s attention, and the trial court

specifically instructed the jury to view Minor’s testimony with

caution.5 A government witness corroborated Minor’s testimony that

it was common to buy crack for much less than its total resale

value. Unless a witness’s testimony is contrary to the laws of

nature or the witness claims to have witnessed something beyond the

witness’s ability to have perceived it, the jury’s choice to credit

a witness’s testimony will not be disturbed.6

IV

Hoggatt argues that the government did not prove that the

cocaine seized from the trailer was crack cocaine. There was both

expert and lay testimony at trial that the cocaine seized was crack

cocaine. This argument has no merit.

V

5 See United States v. Bermea,

(5th Cir. 1994). 6 See

4 Hoggatt also challenges his sentence, claiming an Apprendi

violation because the jury was not required to find that the

substance he possessed was crack. This argument is frivolous. The

jury verdict specifically defined the offenses as “possession of a

controlled substance (crack cocaine) with intent to distribute” and

“knowing or intentional distribution of a controlled substance

(crack cocaine).” The trial judge specifically instructed the jury

for each count that they must find beyond a reasonable doubt that

the substance in question was cocaine base.

VI

For the foregoing reasons, the judgment of conviction and

sentence are AFFIRMED.

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