United States Court of Appeals
For the Eighth Circuit
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No. 13-2015
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Antonio Shaw, also known as Lips, also known as A1
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: March 12, 2014
Filed: May 15, 2014
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury found Antonio Shaw guilty of conspiracy to possess with intent to
distribute crack cocaine and marijuana (“Count I”), in violation of 21 U.S.C.
§§ 841(b)(1)(C) and 846, and possession of a firearm in furtherance of a drug-
trafficking offense (“Count II”), in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Shaw
raises a sufficiency-of-the-evidence argument and challenges his sentence. We affirm
the conviction but vacate the sentence and remand for resentencing.
I. Background
Evidence at trial established that Shaw had distributed marijuana in the St.
Louis area since he was in high school. On July 22, 2004, members of the St. Louis
Metropolitan Police Department (“the police”) arrested Shaw and, during a search
incident to arrest, discovered 19.85 grams of marijuana and $162 in cash. On March
11, 2006, the police stopped Shaw’s vehicle for failure to obey a stop sign and found
Shaw in possession of 57.58 grams of marijuana packaged in four individual plastic
bags and $1,042 in cash. On November 16, 2007, the police arrested Shaw during the
execution of a search warrant and found him in possession of .89 grams of crack
cocaine, $1,776 in cash, and a fully-loaded 9-mm semiautomatic pistol. The police
never discovered user paraphernalia during these arrests. In addition to this evidence,
two drug distributors testified that they collectively purchased at least seventy-five
pounds of marijuana from Shaw between 2006 and 2008. They also testified that
during these drug exchanges, Shaw carried a firearm. A drug-distribution expert
opined that Shaw’s activities involving marijuana and crack cocaine from 2004 to
2009 were indicative of an intent to distribute. Specifically, the expert cited the lack
of user paraphernalia, the multiple single-dosage units packaged for distribution
discovered during the March 2006 arrest, the large amounts of cash, Shaw’s use of
two cellular phones and several vehicles to avoid detection, and Shaw’s carrying a
firearm for protection. Shaw moved for judgment of acquittal based on insufficiency
of the evidence. The district court denied the motion, and the jury found Shaw guilty
of both Counts I and II.
In determining Shaw’s statutory sentencing range, the district court found that
Shaw brandished a firearm in furtherance of his drug-trafficking offense—a finding
not made specifically by the jury—and determined that a seven-year mandatory-
minimum sentence applied under § 924(c)(1)(A)(ii). However, the district court
sentenced Shaw to 378 months’ imprisonment. This appeal followed.
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II. Discussion
Shaw argues that the district court erred by denying his motion for judgment of
acquittal based on insufficiency of the evidence. “We review de novo a district court’s
denial of a motion for judgment of acquittal, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences in its favor.” United
States v. Vore, 743 F.3d 1175, 1180 (8th Cir. 2014). “‘This standard is quite strict,’
and the court will not disturb the conviction unless ‘no reasonable jury could have
found the defendant guilty beyond a reasonable doubt.’” United States v. Wright, 739
F.3d 1160, 1167 (8th Cir. 2014) (internal citation omitted) (quoting United States v.
Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004)).
To convict Shaw on Count I, the Government had to prove beyond a reasonable
doubt (1) that there was a conspiracy (an agreement to possess with intent to distribute
the drugs); (2) that Shaw knew of the conspiracy; and (3) that Shaw intentionally
joined the conspiracy. See United States v. Banks, 706 F.3d 901, 906 (8th Cir. 2013).
To the extent Shaw argues the evidence was insufficient to prove the existence of a
conspiracy, we find this argument meritless. The Government introduced into
evidence a transcript of Shaw’s testimony from a 2009 trial, in which he admitted to
an agreement with others to purchase and distribute drugs. Moreover, he sold at least
seventy-five pounds of marijuana over three years to the distributors who testified at
trial. See United States v. Rodriguez-Ramos, 663 F.3d 356, 362 (8th Cir. 2011)
(holding that a defendant’s repeated supply of large amounts of drugs “is not a typical
buyer-seller relationship but instead is indicative of knowledge and intent to join a
conspiracy because of the quantity and regularity of the transactions”). Shaw’s
primary challenge is whether the evidence was sufficient to show that he possessed
distribution quantities of marijuana and crack cocaine such that there was an
agreement to possess with intent to distribute the drugs. He argues that the amount
of drugs discovered was minimal and therefore consistent with personal use.
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First, with respect to the marijuana, Shaw argues that the testimony of the two
distributors concerning the sale of seventy-five pounds of marijuana was vague and
therefore not credible. “However, we do not consider attacks on witnesses’ credibility
when we are evaluating an appeal based upon the sufficiency of the evidence.” United
States v. Funchess, 422 F.3d 698, 701 (8th Cir. 2005). Viewing the evidence, as we
must, in the light most favorable to the verdict, we presume that the jury found Shaw
sold seventy-five pounds of marijuana to the distributors as they testified. See Vore,
743 F.3d at 1180. This substantial amount of distributed marijuana, in addition to the
other marijuana discovered on Shaw’s person during the arrests, was more than
sufficient to infer an intent to distribute. See Wright, 739 F.3d at 1169 (“A large
quantity of narcotics alone provides sufficient circumstantial evidence for a jury to
infer an intent to distribute it.”). And this was not the only evidence presented to the
jury on the issue of Shaw’s intent to distribute the marijuana. The distributors
testified that Shaw carried a firearm when he sold the seventy-five pounds of
marijuana to them. See United States v. Boyd, 180 F.3d 967, 980 (8th Cir. 1999)
(holding that the presence of a firearm while possessing narcotics is circumstantial
evidence of an intent to distribute the narcotics). Shaw also possessed significant
amounts of cash during the arrests involving marijuana; in addition, during the March
2006 arrest, the marijuana was packaged in individual plastic bags. See Wright, 739
F.3d at 1169-70 (explaining that cash and packaging material also indicate an intent
to distribute narcotics). Finally, Shaw was never discovered to be in possession of
user paraphernalia, but he did use two cellular phones and several vehicles to avoid
detection—all circumstances that the expert testified indicated wholesale distribution
rather than personal use. Therefore, the district court did not err in concluding that
sufficient evidence supported a finding of an agreement to possess with intent to
distribute the marijuana.
Second, with respect to the crack cocaine, Shaw contends that .89 grams was
not a sufficiently substantial quantity to infer an intent to distribute. We begin by
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observing that the expert testified that .89 grams—approximately 9 dosage units—is
a distributable amount. Even though distributable, however, “[p]ossession of such a
small amount of drugs, standing alone, is an insufficient basis from which to infer
intent to distribute.” United States v. McClellon, 578 F.3d 846, 855 (8th Cir. 2009)
(alteration in original) (quoting United States v. Delpit, 94 F.3d 1134, 1153 (8th Cir.
1996)) (discussing 6.45 grams of cocaine base). But “[o]f course, we don’t look at the
amount of drugs alone; even a small amount, if bolstered by other evidence, can show
intent to distribute.” Id. (quoting Delpit, 94 F.3d at 1153). For example, in United
States v. Gordon, 923 F.2d 123 (8th Cir. 1991), the defendant possessed only one
ounce of cocaine. Id. at 124-25. The court observed that if the one ounce of cocaine
“were to stand isolated from the evidence showing a pattern of drug dealing,” then “a
finding that the evidence was insufficient to support anything more than simple
possession” may have been appropriate. Id. at 125. However, because other evidence
“provided the trial court with indicia of narcotics distribution,” we concluded that the
evidence as a whole supported an inference of an intent to distribute the one ounce of
cocaine. Id. at 125-26. Similarly, in United States v. White, 969 F.2d 681 (8th Cir.
1992), we held that because 7.54 grams of cocaine was “insufficient standing alone
to support a conviction for possession with intent to distribute,” “the question
becomes whether there was enough additional evidence, including circumstantial
evidence, to sustain the jury’s verdict.” Id. at 684. We ultimately found that White’s
carrying of a firearm was a significant indicator of narcotics distribution supporting
an inference of an intent to distribute. Id. Here, when discovered with the crack
cocaine, Shaw also simultaneously possessed $1,776 in cash and a loaded pistol.
Under these cases, this additional evidence of cash and a loaded firearm was sufficient
to infer an intent to distribute even a small amount of crack cocaine. See also Wright,
739 F.3d at 1169-70; Boyd, 180 F.3d at 980. Accordingly, the district court did not
err in concluding that sufficient evidence supported a finding of an agreement to
possess with intent to distribute the crack cocaine.
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Shaw next argues that the evidence was insufficient to show that he possessed
a firearm in furtherance of a drug-trafficking offense to support his conviction on
Count II. To establish a violation of § 924(c), the Government had to prove beyond
a reasonable doubt that Shaw (1) committed a drug-trafficking crime and (2)
possessed a firearm in furtherance of that crime. United States v. Robinson, 617 F.3d
984, 988 (8th Cir. 2010). The “in furtherance of” element is satisfied if the
Government provides “evidence from which a reasonable [trier of fact] could find a
nexus between the defendant’s possession of the charged firearm and the drug crime.”
Id. at 989 (alteration in original) (internal quotation marks omitted) (quoting United
States v. Sanchez-Garcia, 461 F.3d 939, 946 (8th Cir. 2006)). The jury may infer the
required nexus when the firearm “is kept in close proximity to the drugs, it is quickly
accessible, and there is expert testimony regarding the use of firearms in connection
with drug trafficking.” United States v. Fetters, 698 F.3d 653, 658 (8th Cir. 2012)
(quoting United States v. Close, 518 F.3d 617, 619 (8th Cir. 2008)). Count I, a drug-
trafficking crime, satisfies the first element. As for the second element, the
Government introduced Shaw’s testimony in a prior trial, in which he admitted to
carrying a gun in connection with his drug business because there was “a lot of hatred
out there . . . . because I sold weed.” In addition, Shaw was arrested on November 16,
2007, in possession of crack cocaine, cash, and a fully-loaded firearm. Moreover, the
drug distributors testified that Shaw possessed a firearm when he sold them seventy-
five pounds of marijuana. Finally, the drug-distribution expert testified that drug
traffickers routinely use firearms for intimidation and protection—consistent with
Shaw’s own admission. Accordingly, a reasonable trier of fact could find a nexus
between Shaw’s possession of the charged firearm and the drug crime. The district
court therefore did not err in denying Shaw’s motion for judgment of acquittal.
With regard to his sentencing, Shaw asserts that the district court violated his
Sixth Amendment right to a jury trial by imposing a seven-year mandatory-minimum
sentence under 18 U.S.C. § 924(c). “This court reviews de novo constitutional
challenges to a sentence.” United States v. Hyles, 521 F.3d 946, 958 (8th Cir. 2008).
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The district court concluded that the mandatory minimum applied because it found
that Shaw had brandished a firearm during and in relation to a drug-trafficking crime.
See § 924(c)(1)(A)(ii). Shaw contends, however, that the mandatory minimum should
have been five years because the jury did not find that Shaw brandished a firearm in
relation to his drug-trafficking offense. The Government concedes that the district
court’s determination of a seven-year mandatory minimum in the absence of a jury
finding violated the Supreme Court’s decision in Alleyne v. United States, --- U.S. ---,
133 S.Ct. 2151 (2013), and our case law compels us to agree. See United States v.
Lara-Ruiz, 721 F.3d 554, 558-59 (8th Cir. 2013) (remanding for resentencing even
though the sentence imposed exceeded the mandatory minimum challenged).
Therefore, we vacate the sentence and remand for resentencing.1
III. Conclusion
For the foregoing reasons, we affirm the district court’s denial of Shaw’s
motion for judgment of acquittal. However, due to the Alleyne violation in
determining the mandatory-minimum sentence, we vacate the sentence and remand
for resentencing.
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1
Shaw also raises arguments concerning the procedural and substantive
reasonableness of his sentence. As in Lara-Ruiz, however, we decline to address
those arguments. 721 F.3d at 559.
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