United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 22-1080
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                              Sylvester Cunningham,

                      lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                          Submitted: September 22, 2022
                              Filed: June 13, 2023
                                 ____________

Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
                       ____________

COLLOTON, Circuit Judge.

       Sylvester Cunningham appeals convictions for unlawful possession of a
firearm as a convicted felon, possession with intent to distribute cocaine, and
possession of a firearm in furtherance of a drug trafficking offense. See 

(g)(1); 

(a)(1); 

(c)(1)(A). He argues that
evidence should have been excluded from trial due to an unlawful search and seizure,
that he had a constitutional right under the Second Amendment to possess a firearm
as a convicted felon, and that there was insufficient evidence to support the
convictions. We conclude that none of the contentions has merit, and therefore affirm
the judgment of the district court.1

                                          I.

       Cunningham, a twice-convicted felon serving a federal term of supervised
release, was arrested for possessing a firearm and cocaine at a Walmart store in Cedar
Rapids in August 2020. At the time of the incident, Cunningham had been convicted
of two prior felonies: driving under the influence of alcohol in 2005 in Illinois, and
possession of a firearm as a convicted felon in federal court in 2012.

      Cunningham arrived at the Walmart in a vehicle, traveled from the vehicle to
the entrance in his own wheelchair, and then transferred to a motorized cart owned
by Walmart for use while shopping. When Cunningham first transferred from his
wheelchair to a motorized cart, the cart did not work. A Walmart employee helped
Cunningham move to a second motorized cart, which also did not work, and then to
a third motorized cart, which functioned properly. Cunningham’s personal
wheelchair remained near the front of the store, pushed against a wall.

       Cunningham moved into the store on the motorized cart, but soon returned to
the entrance looking for his cellular phone. He seemed to have misplaced the phone
when switching motorized carts. When he could not find the phone in or around the
carts, Cunningham received permission from the Walmart employee to drive the
motorized cart to the parking lot so that he could check for the phone in his vehicle.



      1
       The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

                                         -2-
       While Cunningham returned to his vehicle, the Walmart employee suspected
that the phone could have slid under the seat cushion in Cunningham’s personal
wheelchair. She lifted the seat cushion and did not find a phone, but observed a
firearm. She notified a Walmart manager, who approached the wheelchair and also
saw the gun.

       The first Walmart employee notified police officer Matthes who was outside
the store and about to begin a shift working in uniform to provide security. The
Walmart employee told Matthes that she needed immediate assistance because
someone in the store had left a gun in a wheelchair. The employee explained that she
found the gun under the seat cushion while helping a customer look for a lost cell
phone. The Walmart manager stayed near the wheelchair, presumably to ensure that
no patron in the vestibule would encounter the firearm. When Matthes entered the
store, the manager pointed down at the wheelchair.

       By then, Cunningham had returned to the store and was seated in a motorized
shopping cart near the entrance. When Matthes questioned him about a gun,
Cunningham admitted the wheelchair was his, but denied having a weapon or placing
a weapon in the wheelchair. He also admitted that he did not have a permit to carry
a firearm, and that he was on federal “probation” (i.e., supervised release) for a prior
firearms offense. Cunningham claimed that when he entered the store, there was no
gun in or on the wheelchair. Matthes then lifted the seat cushion in the wheelchair
and seized a revolver from the seat area.

      Cunningham was allowed to transfer from the motorized cart back to his
personal wheelchair, and he then moved to a security office in the store. Officers
placed Cunningham under arrest and searched his person incident to arrest. In
Cunningham’s undergarment, officers found a blue latex glove containing thirteen
individually-wrapped bags of cocaine, six containing cocaine base and seven
containing powder cocaine.

                                          -3-
       Cunningham moved to suppress the firearm seized from the wheelchair. He
also sought to exclude the drugs seized from his person, and any statements that he
made after the discovery of the firearm, on the ground that the additional evidence
was the fruit of an earlier unlawful search.

       The district court ruled that Officer Matthes did not violate Cunningham’s
rights under the Fourth Amendment by searching the wheelchair and seizing the
firearm. The court thus denied the motion to suppress the firearm and rejected
Cunningham’s claim that later evidence-gathering was the fruit of an unlawful search
and seizure.

       Cunningham also moved to dismiss the charge in the indictment that he
unlawfully possessed a firearm as a convicted felon. He argued that the statutory
prohibition of 

(g)(1) infringed on his right to keep and bear arms
under the Second Amendment. The district court rejected Cunningham’s argument
because his circumstances did not distinguish him from those of persons who were
historically barred from possessing firearms.

      The case proceeded to trial, and a jury convicted Cunningham on all counts.
The district court denied Cunningham’s motion for judgment of acquittal, and
sentenced him to a total term of eighty-seven months’ imprisonment, followed by five
years of supervised release.

                                           II.

      Cunningham first argues that the district court erred in denying his motion to
suppress evidence. He contends Officer Matthes’s lifting of the seat cushion on his
wheelchair, one of his “effects,” constituted “a physical intrusion on a constitutionally
protected area.” See United States v. Jones, 

, 406 n.3 (2012).



                                          -4-
       We conclude, however, that the officer’s action was permissible under the
Fourth Amendment on at least two bases: as an investigative search based on
reasonable suspicion of crime and danger, see Terry v. Ohio, 

(1968), and as a search for evidence based on probable cause under exigent
circumstances, see United States v. Antwine, 

 (8th Cir. 1989).
Matthes received reliable information from Walmart employees that a firearm was
located in the seat of the wheelchair belonging to Cunningham. Although
Cunningham denied that he placed a gun in the wheelchair, Matthes had substantial
reason under the circumstances to disbelieve the denial and to conclude that
Cunningham was responsible for effects within the wheelchair that he brought into
the store. Cunningham’s statements established probable cause that he was not
permitted to possess a firearm. Matthes also confronted an exigency with a reported
firearm in a public location that was readily accessible to customers moving through
the Walmart store. The district court properly denied Cunningham’s motion to
suppress.

       Cunningham next challenges the district court’s denial of his motion to dismiss
the charge that he unlawfully possessed a firearm as a convicted felon, in violation
of 

(g)(1). Cunningham asserts that the Second Amendment
guaranteed his right to possess a firearm, despite his status as a twice-convicted felon,
because neither of his prior offenses qualified as a “violent” offense based on the
elements of the crime. This contention is foreclosed by United States v. Jackson, No.
22-2870, 

, at *4 (8th Cir. June 2, 2023), where we concluded that
there is no need for felony-by-felony determinations regarding the constitutionality
of § 922(g)(1) as applied to a particular defendant. The longstanding prohibition on
possession of firearms by felons is constitutional, and the district court properly
denied the motion to dismiss. See District of Columbia v. Heller, 

(2008); McDonald v. City of Chicago, 

 (2010) (plurality opinion);
N.Y. State Rifle & Pistol Ass’n v. Bruen, 

 (2022); 

 at 2157



                                          -5-
(Alito, J., concurring); 

 (Kavanaugh, J., concurring, joined by Roberts,
C.J.); 

 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.).

      Cunningham also contends that there was insufficient evidence to support his
convictions. We consider the evidence in the light most favorable to the verdict, and
uphold a conviction if any rational jury could have found the elements beyond a
reasonable doubt. United States v. Two Hearts, 

 (8th Cir. 2022).

       On the conviction for unlawful possession of a firearm, Cunningham argues
that the evidence was insufficient to prove that he knew about the gun in the
wheelchair or that he knowingly possessed it. He posits that another person could
have placed the firearm under the seat cushion of his wheelchair while it was left
unattended near the entrance of the Walmart store.

        We agree with the district court that a rational jury could have found that
Cunningham acted with the requisite knowledge. Cunningham admitted that the
wheelchair belonged to him, and that he was the only person to use it. Cunningham
parked the wheelchair near the entrance of the store, and a Walmart employee
testified that she did not see anyone else near the wheelchair. Only a short amount
of time passed between Cunningham’s transfer out of the wheelchair and discovery
of the firearm in the wheelchair. There was no evidence suggesting why a patron of
the store would wish to place a firearm in Cunningham’s wheelchair. Cunningham,
by contrast, was found in possession of a quantity of drugs suitable for distribution,
and had a motive to possess a gun to protect his supply of cocaine. There was ample
evidence to support the jury’s finding that Cunningham knowingly possessed the
firearm.

      On the conviction for possession with intent to distribute cocaine, Cunningham
argues that he was merely a drug user, and that there was insufficient evidence to
show that he intended to distribute. The combination of circumstantial evidence and

                                         -6-
expert testimony, however, was sufficient to support a finding of intent to distribute.
Cunningham was found with thirteen separate packages of drugs, totaling 3.44 grams
of cocaine base and 4.46 grams of powder cocaine. The government’s expert testified
that the packaging and quantity were consistent with intent to distribute, because drug
users rarely can afford more than one or two bags of drugs at a time, and will seldom
possess more than a gram of cocaine or cocaine base. She also explained that drug
users typically possess only their drug of choice, so the fact that Cunningham
possessed two different types of cocaine indicated an intent to distribute.
Cunningham’s possession of a firearm, a tool of the drug trade, also suggested that
he was a distributor. Despite Cunningham’s contention that he was a drug user,
police found no drug paraphernalia to facilitate drug use on his person or in his
wheelchair. Although the government did not present even more evidence of drug
trafficking, such as a large quantity of cash or communications with drug customers,
a rational jury could have found that the evidence of record established that
Cunningham intended to distribute the drugs found in his undergarment.

       Finally, Cunningham briefly argues that there was insufficient evidence that
he possessed the firearm in furtherance of a drug trafficking offense, because the
firearm was under a seat cushion and “not particularly accessible” to him. To the
contrary, a rational jury could have found that the firearm was placed strategically in
a location where it was hidden from view but readily accessible to one who was
seated in the wheelchair and carrying drugs in his undergarment.

      The judgment of the district court is affirmed.

STRAS, Circuit Judge, dissenting.

     I dissent. More to come. See United States v. Jackson, — F.4th — , 

 (8th Cir. 2023).
                      ______________________________

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