[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11727 ELEVENTH CIRCUIT
JAN 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-00204-CR-1-LSC-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDA FAYE FINCH,
JAMES WILLIE ASKEW, III,
a.k.a. Q,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(January 11, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Linda Finch appeals her convictions for conspiracy to possess with intent to
distribute 50 or more grams of crack cocaine, and possession with intent to
distribute 50 or more grams of crack cocaine. James Askew appeals his conviction
and 240-month sentence for conspiracy to possess with intent to distribute 50 or
more grams of crack cocaine. Finch and Askew both challenge the sufficiency of
the evidence to support their convictions. Askew raises two additional arguments:
(1) the district court erred in admitting keys recovered from his residence; and (2)
his sentence is procedurally and substantively unreasonable. After careful review,
we AFFIRM as to both Finch and Askew.
I. BACKGROUND
Finch and Askew were indicted for conspiring to possess with intent to
distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841 and
846. Finch was also charged with possession with intent to distribute at least 50
grams of crack cocaine, in violation of 21 U.S.C. § 841, and four counts of
firearms offenses. Prior to trial, Askew filed a motion in limine to exclude
evidence of keys recovered from his residence. Askew contended the keys were
irrelevant to the conspiracy because they were found after the conspiracy had
allegedly ended. The court denied the motion before trial began.
The evidence at trial established the following. In June 2007, Officer Chuck
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Battles of the Calhoun County Drug Task Force executed a search warrant at a
house located at 2707 McCoy Avenue in Anniston, Alabama (“the McCoy
house”). Officers apprehended Finch, the only person inside the house, as she ran
towards the back door. A search of the house yielded cocaine, marijuana, drug
paraphernalia, digital scales, two-way radios, security cameras, and numerous
firearms. The amount of crack cocaine recovered was 142.35 grams, worth more
than $50,000. Officer Battles also discovered several letters, bills, and other
documents belonging to Askew and Finch. These papers included a letter to Finch
from her brother discussing drug sales she was expected to handle and referencing
a man named “Q.” Officers further confiscated $10,724.69 in cash and a drug
ledger listing customers’ names.
Three weeks later, on 21 June 2007, the police searched Askew’s residence
at 317 Rockwood Drive in Anniston. Officer Battles testified that agents found a
set of keys, which opened the front and back door locks of the McCoy house.
Officer Battles further testified that “[t]here was also a set of older door locks that
had been removed from the initial search warrant on the 1st of June and had been
placed in a box on the floor, and a set of keys also opened those as well.” Doc. 93
at 148.
Constance Long, who grew up with Askew, testified that Askew went by the
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nicknames of “Junebug” and “Q.” Long lived directly across from the McCoy
house. Long’s uncle told her that Askew was moving into the McCoy house and
asked her in 2006 to put the utility bills for that house in her name. Long agreed to
do so, although she did not actually pay the bills. Long purchased crack, a crack
pipe, alcohol, pills, and other items from Askew at the McCoy house. Long
referred to the McCoy house as “the store” because whatever she wanted was
there. Id. at 90. Long also saw Finch at the McCoy house, and purchased crack
from her and Askew “[e]very other day. . . [u]ntil they got busted.” Id. at 88.
While at the McCoy house, Long observed stacks of cash piled on the kitchen
counter and Askew and Finch counting the money together. Long also saw Finch
and Askew together on other occasions “[j]ust talking” in the kitchen. Id. at 86.
According to Long, Askew controlled who entered the McCoy house to
purchase drugs. Those customers who were not allowed to enter would exchange
money for drugs through a slot at the bottom of the back door. Long witnessed
numerous people buying, selling, and using drugs at the McCoy house. Long
admitted that she also sold drugs at the McCoy house.
Both Finch and Askew moved for judgments of acquittal at the close of the
government’s case-in-chief. The court denied the motions, except as to Finch’s
motion relating to the four firearm counts. The jury convicted both defendants of
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conspiracy as charged, and it also found Finch guilty of possession with intent to
distribute 50 grams of crack cocaine. In April 2009, the court sentenced Finch and
Askew each to 240 months of imprisonment. This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Both Finch and Askew challenge the sufficiency of the evidence to support
their convictions, an issue we review de novo. See United States v. Garcia-
Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009). We draw all reasonable
inferences and credibility choices in favor of the jury’s verdict, and consider the
evidence in the light most favorable to the government. See id. We will affirm
“unless, under no reasonable construction of the evidence, could the jury have
found the [defendant] guilty beyond a reasonable doubt.” United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005) (per curiam).
In order to prove Finch and Askew guilty of conspiracy under 21 U.S.C.
§ 846, the government had to establish that a conspiracy (or agreement) existed
between the two to possess with the intent to distribute at least 50 grams of crack
cocaine, that each defendant knew about the conspiracy, and that each defendant
knowingly joined the conspiracy. See Garcia-Bercovich, 582 F.3d at 1237. A
conspiracy may be inferred from circumstantial evidence, including a person’s
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presence at the scene and facts demonstrating a “concert of action.” United States
v. Westry, 524 F.3d 1198, 1212 (11th Cir. 2008) (per curiam) (quotation marks and
citation omitted), cert. denied, ___ U.S. ___, 129 S. Ct. 251 (2008), and cert.
denied, ___ U.S. ___, 129 S. Ct. 902 (2009).
To prove that Finch violated 21 U.S.C. § 841(a)(1) by possessing with the
intent to distribute 50 grams of crack cocaine, the government had to show
knowledge, possession, and intent to distribute. See Garcia-Bercovich, 582 F.3d at
1237. Knowledge can be shown by the surrounding circumstances. See United
States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989) (per curiam). Possession
may be demonstrated by evidence that the defendant owned, or had dominion and
control over, the drugs or the premises housing the drugs. See id. An intent to
distribute may be proven through circumstantial evidence, including the quantity of
drugs and the existence of scales and other drug paraphernalia commonly used in
drug distribution. See id.
Here, the record contained sufficient evidence for a jury to find beyond a
reasonable doubt that Finch and Askew conspired to possess with the intent to
distribute at least 50 grams of crack cocaine. As Askew concedes, the evidence
established that the McCoy house was a crack house used for drug distribution.
This evidence included more than 140 grams of crack cocaine and approximately
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$10,000 in cash seized from the McCoy house, along with numerous items
commonly used in the drug distribution business, such as digital scales.
Furthermore, a jury could reasonably infer that the surveillance cameras and loaded
firearms were security measures to protect the illegal drugs.
Contrary to Askew’s contention, the evidence did not merely establish that
the McCoy house was a gathering place for various people to sell and use drugs.
There was also sufficient evidence that Askew and Finch had agreed to sell crack
cocaine. Long testified that she purchased crack cocaine numerous times from
both Finch and Askew at the McCoy house. The keys to the McCoy house were
found in Askew’s residence, indicating his dominion over the items inside.
Moreover, Askew exercised control over the McCoy house and the drugs by
deciding who could enter. Finch likewise exerted dominion over the drugs, as
evidenced by the fact that authorities found her alone in the McCoy house. The
jury could reasonably infer that Askew would not have left Finch alone with all of
the drugs and money unless they had conspired with each other to sell the crack
cocaine. Thus, the large quantity of drugs and cash controlled by Askew and Finch
supported a reasonable inference that they knowingly participated in a conspiracy
to sell those drugs. See United States v. Molina, 443 F.3d 824, 829 (11th Cir.
2006) (concluding that the large quantity of money found in the defendant’s closet,
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in addition to the drugs and a digital scale located in the defendant’s bedroom,
established that he knowingly participated in a conspiracy to possess cocaine with
the intent to distribute it).
Long’s observation of Finch and Askew talking and counting money
together at the McCoy house provided additional evidence that they were acting in
concert. Askew assails Long’s testimony as contradictory, and both Finch and
Askew emphasize that Long herself sold drugs. It was up to the jury to assess her
credibility, however, and to choose between different constructions of the
evidence. See id. at 828; United States v. Thompson, 473 F.3d 1137, 1142 (11th
Cir. 2006) (“The jury gets to make any credibility choices, and we will assume that
they made them all in the way that supports the verdict.”). Having heard Long’s
testimony and evaluated her truthfulness, the jury determined that she was
believable, a determination that Finch and Askew have not shown to be
unreasonable. See Molina, 443 F.3d at 828 (instructing that we must accept the
jury’s reasonable credibility determinations).
Similarly, the jury was free to reject Askew and Finch’s argument that they
were merely present at the crack house and never actually agreed to sell crack
cocaine. While mere presence cannot by itself establish a person’s knowing
participation in a conspiracy, it is “material, highly probative, and not to be
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discounted.” Westry, 524 F.3d at 1213 (quotation marks and citation omitted).
Moreover, “the circumstances surrounding a person’s presence at the scene of
conspiratorial activity” may be “so obvious that knowledge of its character can
fairly be attributed to him.” Molina, 443 F.3d at 829. Such is the case here where
Askew and Finch routinely sold crack cocaine at a house filled with drugs, money,
drug paraphernalia, loaded firearms, and surveillance cameras. Their presence at
the house was thus highly probative of their knowing participation in a criminal
scheme.
Additionally, the evidence went beyond Askew and Finch’s mere presence
at the crime scene. Long testified that she purchased crack cocaine from both
individuals on multiple occasions and saw them counting money together at the
McCoy house. A letter from Finch’s brother also mentioned a drug deal involving
“Q”, one of Askew’s nicknames, that Finch was supposed to execute. Viewed in
tandem, the evidence demonstrated that Finch and Askew actively and knowingly
participated in the charged conspiracy. See Westry, 524 F.3d at 1213-14 (rejecting
an innocent bystander defense where the defendant participated in an undercover
drug purchase and associated with a co-conspirator at a residence where drug
transactions occurred).
The evidence was also sufficient to establish Finch’s guilt on the possession
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count. A person who exercises dominion and control over a residence containing
concealed contraband is deemed to have constructive possession of the contraband.
See Poole, 878 F.2d at 1392. In Poole, the police found cocaine under the couch
on which the defendant was lying, along with money and a scale containing some
cocaine in plain view. See id. Although Poole did not have exclusive control over
the premises, her ownership and control over the house was sufficient to establish
constructive possession of the cocaine. See id. Similarly, Finch did not have
exclusive control over the McCoy house, but she was left in charge of the premises
and apprehended by authorities in close proximity to crack cocaine and other
indicia of drug trafficking in plain view. Because Finch exerted dominion and
control over the premises and the illegal drugs, a jury could reasonably find that, at
a minimum, Finch constructively possessed the crack cocaine. See id. With
respect to the knowledge element, a jury could reasonably infer that she was
attempting to escape through the back door because she knew the house contained
contraband. There was also ample evidence that she knowingly intended to
distribute the drugs, including the evidence that she regularly sold crack cocaine to
Long. When viewed in the light most favorable to the government, the evidence
was sufficient for the jury to find beyond a reasonable doubt that Finch possessed
with intent to distribute at least 50 grams of crack cocaine.
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B. Admission of Evidence Related to Keys
Next, Askew argues that the district court erroneously admitted evidence
related to keys that were seized from his personal residence. According to Officer
Battles, keys found in Askew’s home matched the new locks on the door of the
McCoy house on 21 June 2007 as well as some old locks removed after the initial
search of the house on 1 June 2007. Askew filed a motion in limine to exclude the
evidence concerning these keys on grounds that the keys were irrelevant to the
charged conspiracy because they were discovered after the conspiracy had ended
on 1 June 2007. The court denied the motion before trial, but Askew did not
specifically object to the evidence of the keys and locks when they were introduced
at trial.
Ordinarily, we review a district court’s evidentiary ruling for abuse of
discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). The
government contends that our review is limited to plain error, however, because
Askew failed to object to the testimony or admission of the keys during trial. We
agree. “The overruling of a motion in limine is not reversible error, only a proper
objection at trial can preserve error for appellate review.” United States v. Gari,
572 F.3d 1352, 1356 n.2 (11th Cir. 2009) (quotation marks and citation omitted).
Thus, in order to obtain relief, Askew must show (1) error, (2) that was plain, (3)
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that affected his substantial rights, and (4) that seriously affected the fairness,
integrity, or reputation of the judicial proceedings. See Baker, 432 F.3d at 1203.
We find no error, plain or otherwise. Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. Relevant evidence is generally
admissible. See Fed. R. Evid. 402. Here, the keys to the McCoy house were
relevant and admissible to show that Askew had unfettered access to the crack
cocaine and cash inside the McCoy house. The evidence demonstrated that Askew
exerted some control over the premises containing the crack cocaine, thus making
it more probable that he conspired to possess those drugs with the intent to sell
them. That Officer Battles discovered the keys a few weeks after the charged
conspiracy had ended does not preclude their admissibility. A reasonable jury
could conclude that Askew possessed the keys to the old locks during the time
frame of the alleged conspiracy.
Askew also raises on appeal Officer Battle’s testimony during cross-
examination that he failed to photograph or inventory the keys before matching
them to the locks. Askew suggests that Officer Battles’ unprofessional handling of
the keys supports a finding that admission of the evidence was prejudicial error.
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However, Askew cites no legal authority for this argument. To the extent he is
attempting to raise a new basis for the exclusion of the evidence, it is well-
established that we will not consider new legal theories and arguments advanced
for the first time on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004). We find no reason to depart from this rule here.
See id. at 1332 (noting the limited circumstances under which we will entertain a
new argument, including that the issue involves a pure question of law and a
refusal to consider it will result in a miscarriage of justice).
Accordingly, we conclude that the district court correctly admitted the
evidence related to the keys found in Askew’s residence.
C. Askew’s Sentence
In addition to his conviction, Askew appeals his 240-month sentence as
being procedurally and substantively unreasonable. We review the reasonableness
of a sentence under a deferential abuse-of-discretion standard. See United States v.
Livesay, 525 F.3d 1081, 1090-91 (11th Cir. 2008).
1. Procedural Reasonableness
A sentence is procedurally reasonable if it is free of significant procedural
error. See id. at 1091. Examples of procedural errors include miscalculating the
guideline range, treating the guidelines as mandatory, failing to consider all of the
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factors in 18 U.S.C. § 3553(a), inadequately explaining a deviation from the
guideline range, or basing the sentence on clearly erroneous facts. Id.
None of these procedural errors are present in this case. Askew does not
dispute the district court’s calculation of his guideline range or assert that the court
treated the guidelines as mandatory. Nor does Askew explicitly argue that the
court failed to consider all of the § 3553(a) factors. However, he does question
whether the sentencing judge, who did not preside at Askew’s trial, read the trial
transcript or his sentencing memorandum, which requested a 10-year sentence
based on Askew’s personal history and other § 3553(a) factors. The government
acknowledges that the trial transcript was filed after Askew’s sentencing hearing.
As the government points out, though, the court considered and adopted the factual
statements in the pre-sentence report, which recited the evidence introduced at
trial.
In regard to Askew’s sentencing memorandum, which was filed a week
before the sentencing hearing, Askew’s attorney specifically asked the court to
consider this memorandum along with the guidelines and Askew’s age. The court
responded, “All right.” Doc. 91 at 3. Before sentencing Askew, the court noted its
duty to consider each § 3553(a) factor, including (1) the nature and circumstances
of the offense, (2) the history and characteristics of the defendant, and (3) the need
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for the sentence to reflect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence, and protect society from
future crimes. Though the district court did not specifically mention Askew’s
personal characteristics as detailed in his sentencing memorandum, “we cannot say
that the court’s failure to discuss this ‘mitigating’ evidence means that the court
erroneously ‘ignored’ or failed to consider this evidence” in determining Askew’s
sentence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Based on
the record, we conclude that the court considered the § 3553(a) factors as required.
Askew also challenges the sentencing court’s explanation for its variance
from the guideline range. The district court stated as follows:
It is clear to me that you had quite a drug operation going on.
And I don’t want to say[,] I don’t want to waste my breath, but I think
you are fully aware that you were exchanging the lives of other people
for your own profit, and that’s regrettable. I don’t think the guidelines
sufficiently reach the level that you should be punished for this
offense or accomplish the sentencing goals set forth in the federal
statutes.
It is my intention to sentence you to 240 months in this case. I
think that is appropriate when I consider the factors in the sentencing
guidelines and the factors in the federal sentencing statutes.
Doc. 91 at 6. After Askew objected to the sentence as being excessive, the court
added the following statement:
And, again, I note for the record that I just sentenced his co-
defendant to 240 months as well, and I just want to make sure that’s in
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the record. And it is apparent to me that she is pitiful, and that this
fellow right here had all – he is obviously smart, obviously got a lot
on the ball, and I think that the guideline range just isn’t sufficient,
didn’t sufficiently indicate the appropriate punishment that he should
receive.
Id. at 8. Askew takes issue with the court’s statement that Askew had “quite a drug
operation going on,” asserting that there was no evidence at trial that he was a
leader or principal in a drug conspiracy. The court’s statement was not clearly
erroneous, however, because it accurately reflected the fact that Askew participated
in a drug conspiracy involving a significant quantity of crack cocaine. Similarly,
we disagree with Askew’s suggestion that the court’s statement that Askew was
“exchanging the lives of other people for [his] own profit” somehow implied that
someone had died or suffered violence. Rather, the court’s statement reflected the
well-documented negative impact of crack cocaine on a person’s life. We
therefore conclude that the district court adequately explained its deviation from
the sentencing guidelines.
As no procedural error has been shown, Askew’s sentence was procedurally
reasonable.
2. Substantive Reasonableness
Askew further contends that his sentence is substantively unreasonable
because (1) Finch received the same sentence despite her additional conviction on
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the possession count and a prior drug conviction; (2) the sentence did not
adequately reflect Askew’s personal history and characteristics, such as his
military service, his 30-year marriage, his financing of a college education for his
two children, and his inability to work due to a disability; (3) Askew was at most a
peripheral user of drugs, and there were no guns or violence connecting him to the
McCoy house; and (4) his above-guidelines sentence was unnecessary to afford
adequate deterrence and protect the public from further crimes.
In analyzing the substantive reasonableness of a sentence, we must assess
the totality of the circumstances to determine if the sentence constitutes an abuse of
discretion. See Livesay, 525 F.3d at 1091. The mere fact that a sentence is outside
of the guidelines range does not render the sentence presumptively unreasonable.
Id. In order to vacate a sentence because of a variance, we must have a “definite
and firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks and citation omitted).
Moreover, the fact that we “might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
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After considering all the circumstances in this case, we find no clear error of
judgment in the district court’s weighing of the § 3553(a) factors. The evidence at
trial established that Askew maintained control over a crack house at which
numerous individuals bought, sold, and used crack cocaine. Askew himself sold
crack cocaine and is an admitted drug user. He also has a prior conviction for
possession with intent to distribute cocaine, and for using or carrying a firearm
during and in relation to a drug trafficking offense. These factors weigh in favor of
a significant sentence to reflect the seriousness of the crime, afford adequate
deterrence, and protect the public from future crimes. See Amedeo, 487 F.3d at
828, 833 (concluding that a 120-month sentence was reasonable where the
guidelines range of 37-46 months did not adequately reflect the seriousness of the
crime). The fact that Askew is a military veteran with a stable marriage and two
college-educated children does not warrant a lower sentence. To the contrary, it
shows that Askew had the capability and personal support to lead a legitimate
lifestyle.
We also find no merit in Askew’s argument that his sentence is unreasonable
because his co-defendant received an identical sentence. Askew ignores the fact
that, like Finch, he has a prior drug conviction. As the government points out, had
Askew committed the instant offenses after his prior drug conviction had become
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final, he would have been subject to a 20-year mandatory minimum sentence, as
was Finch. See 21 U.S.C. § 841(b)(1)(A). Furthermore, although Finch was
convicted of an additional count for possession, both were found guilty in the same
case of conspiring to possess with the intent to distribute at least 50 grams of crack
cocaine. Pursuant to 18 U.S.C. § 3553(a)(6), a sentence must “avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Given their similar conduct
and criminal history, the district court was justified in sentencing both defendants
to the same term of imprisonment.
We therefore conclude that Askew’s sentence was reasonable in light of the
§ 3553(a) factors and circumstances of his case. No abuse of discretion has been
shown.
III. CONCLUSION
In sum, there was sufficient evidence to support Finch and Askew’s
convictions for the charged conspiracy. The evidence was likewise sufficient to
sustain Finch’s conviction on the possession count. We also conclude that the
district court correctly admitted the evidence related to the keys found in Askew’s
residence, and that the court imposed a reasonable sentence in Askew’s case.
Accordingly, we AFFIRM Finch and Askew’s convictions and sentences.
AFFIRMED.
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