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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14405
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00019-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DYRELL LESHAUN DAVIS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(October 27, 2017)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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A jury found Dyrell Davis guilty of possession of marijuana and possession
of a firearm by a convicted felon. Mr. Davis appeals that verdict, challenging the
propriety of certain closing remarks at trial made by the government’s attorney, the
sufficiency of the evidence connecting him to the firearm, and the use of two prior
Georgia convictions for aggravated assault to enhance his sentence. After
considering the record and the parties’ arguments, we affirm.
I
The government indicted Mr. Davis for possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);
possession of marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D); and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The evidence at trial, viewed in the light most
favorable to the government and with all inferences drawn in favor of the jury’s
guilty verdict, see United States v. Holt, 777 F.3d 1234, 1259 (11th Cir. 2015),
established the following.
Police executed a search warrant at an apartment in Columbus, Georgia, in
April of 2014. Officers approaching the apartment observed two men outside.
Upon seeing the police, one of the men, Mr. Davis, fled inside the apartment. The
officers followed Mr. Davis through the rear of the apartment, and apprehended
him somewhere near the living room. On their way to the living room, officers
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walked through the kitchen, where they discovered digital scales and a 9mm pistol
in the trashcan. During their search of the apartment, the officers found a bag of
marijuana weighing 48.2 grams. They also found various items in one of the
apartment bedrooms bearing Mr. Davis’ name, and they found a photograph of him
kissing a wad of cash.
Mr. Davis was arrested and taken to the police department. He gave a
statement admitting that he owned the marijuana and handgun. He even specified
that he owned “a nine.”
At trial, however, Mr. Davis denied possessing the handgun. He argued that
he could not have had a gun on him on the day of the arrest because of his attire.
The other man outside the apartment, Isiah Gordon, testified that he had not seen a
gun on Mr. Davis. Mr. Davis’ sister testified that the gun was hers. Taking the
stand, Mr. Davis admitted running into the apartment to hide the marijuana, but he
denied having anything to do with the gun.
The jury acquitted Mr. Davis of possession of a firearm in furtherance of a
drug trafficking crime, and of possession of marijuana with intent to distribute. It
found him guilty of the lesser included offense of possession of marijuana, and of
possession of a firearm by a convicted felon.
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II
During the trial, the government sought to introduce the photograph of
Mr. Davis kissing the wad of cash. When defense counsel objected that the
photograph was unduly prejudicial, the government responded that it only intended
to use the photograph to link Mr. Davis to the bedroom in which the marijuana was
found, and not as substantive evidence of distribution. The district court gave a
limiting instruction to that effect.
During closing remarks, the government asked the jury to consider the scales
and amount of marijuana for purposes of the trafficking and distribution charges.
In response, defense counsel stressed the lack of any evidence that Mr. Davis
possessed large amounts of cash typically found on drug dealers. The government,
on rebuttal, pointed to the picture of Mr. Davis kissing a wad of cash as such
evidence. Mr. Davis now challenges those closing remarks on appeal, arguing that
those statements constituted improper use of that photograph. Because he failed to
object to the prosecutor’s statements during trial, we review for plain error. See
United States v. Webb, 463 F.2d 1324, 1328 (5th Cir. 1972).
We conclude that there was no plain error. The entire dispute surrounding
the photograph is that it improperly linked Mr. Davis, in the jury’s mind, to the
trafficking and distribution charges. Yet Mr. Davis was acquitted of both of these
charges. And there was more than enough evidence to convict him on the lesser
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charge of possession. Mr. Davis twice admitted—upon arrest and again on the
stand—that the marijuana was his. On plain-error review, we cannot say that the
prosecutor’s comments, even if improper, substantially prejudiced him on the
possession charge.
III
Mr. Davis argues that there was insufficient evidence to convict him of
possession of a firearm. His argument is twofold. First, he says that, although he
admitted to possessing the handgun found in the apartment, he cannot be convicted
on the basis of his post-arrest admission alone. Second, he says that his sister
admitted to owning the handgun.
We acknowledge that Mr. Davis’ confession that he owned the handgun,
standing alone, is insufficient to convict him. See United States v. Green, 842 F.3d
1299, 1306 (11th Cir. 2016) (explaining that a confession must be corroborated).
But in this case there was enough circumstantial evidence establishing his
possession of the firearm retrieved from the kitchen trashcan.
The evidence introduced by the government established that Mr. Davis fled
inside the apartment when he saw the police. Officers pursued him inside, past the
kitchen, and into the living room, where they arrested him. They found the
handgun in a trashcan that was located in the kitchen and on the way to the living
room. From this evidence, a reasonable jury could have found that Mr. Davis
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possessed the firearm moments before the police stormed into the apartment and
that, to avoid detection, he dropped the handgun into the trashcan. To the extent
Mr. Davis’ sister provided conflicting testimony, the jury was free to disbelieve
her. See United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004) (noting that
a jury is free to disregard family member’s testimony that handgun did not belong
to the defendant).
Accordingly, we conclude that there was sufficient extrinsic evidence to
substantiate Mr. Davis’ admission, and we affirm his conviction for possession of a
firearm by a convicted felon.
IV
Finally, Mr. Davis argues, for the first time on appeal, that the district court
improperly increased his base offense level at sentencing when it considered two
prior Georgia aggravated assault convictions that he maintains do not constitute
crimes of violence under the Sentencing Guidelines. We find that the district court
did not commit plain error because, at the time of sentencing, there was no binding
precedent from this Circuit on whether a Georgia conviction for aggravated assault
qualified as a crime of violence under the Guidelines. The sole binding case cited
by Mr. Davis, United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010),
does not resolve this question because it addressed an Arizona statute. Mr. Davis,
therefore, cannot show plain error and his sentence stands.
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V
For these reasons, we affirm Mr. Davis’ convictions and sentence.
AFFIRMED.
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