[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11844 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 3, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00014-SPM-AK-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
NOEL TIRRELL OWENS,
lll llllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 3, 2011)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Noel Tirrell Owens appeals his convictions and sentence of 420 months of
imprisonment for conspiring to possess and possessing with intent to distribute
marijuana within 1000 feet of a school, 21 U.S.C. §§ 841(a)(1), 846, 860,
possessing a firearm as a convicted felon, 18 U.S.C. § 922(g)(1), and possessing a
firearm in furtherance of a drug trafficking offense, id. § 924(c)(1). Owens argues
that the evidence is insufficient to support his convictions and his sentence is
unreasonable. We affirm.
Owens argues that his convictions are unsustainable because they are based
primarily on evidence provided by witness Paul Manning, whose testimony was
allegedly too incredible to be believed by a rational juror, but we disagree. To be
“incredible as a matter of law,” testimony “‘must be unbelievable on its face’ and
must relate to ‘facts that [the witness] physically could not have possibly observed
or events that could not have occurred under the laws of nature.’” United States v.
Steele, 178 F.3d 1230, 1236 (11th Cir. 1999) (quoting United States v. Calderon,
127 F.3d 1314, 1325 (11th Cir. 1997)). Manning’s testimony about aiding Owens
in distributing marijuana and possessing guns to protect the drugs and drug
proceeds is not implausible. Manning testified that he packaged and sold
marijuana provided by Owens; Owens determined the price and procedure used to
sell the marijuana through the back door of his residence; Owens monitored the
drug sales; and Owens kept guns to protect the drugs and drug proceeds.
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Manning’s testimony is consistent with the parties’ stipulations, Owens’s records,
and the testimonies of investigating officers and one of Owens’s relatives that
Owens rented the house and distributed marijuana from its kitchen. Owens argues
that Manning’s admissions about suffering from multiple mental illnesses and
abusing alcohol and illegal drugs established that Manning was incapable of
“perceiv[ing] reality as to whether Owens was a knowing participant,” but Owens
presented this theory to the jury, and the jury rejected it. See Steele, 178 F.3d at
1236. The district court did not err by denying Owens’s motion for a judgment of
acquittal.
Owens also argues that the district court “unjustifiably relied on” his
“criminal history” to “impose[] a substantively unreasonable sentence,” but again
we disagree. The district court considered the sentencing factors, 18 U.S.C. §
3553, and “tailored the sentence to take into account the facts and circumstances
surrounding this particular case.” Based on Owens’s offenses and his lengthy
criminal history, which included six prior convictions for possessing and
distributing illegal drugs, the district court reasonably concluded that a sentence of
420 months of imprisonment at the low end of the guideline range was “necessary
to punish [Owens] for [his] criminal conduct and [to] serve[] as an adequate
deterrent to others.” Owens’s sentence is reasonable.
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We AFFIRM Owens’s convictions and sentence.
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