[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 31, 2005
No. 04-16068 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00026- CR-5- MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL LAVANE HUNTER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(August 31, 2005)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Paul Lavane Hunter appeals his convictions for distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), unlawful possession of a firearm,
in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) and (c)(1)(C)(i). The sole issue on appeal is whether the
evidence presented at trial was sufficient to support Hunter’s convictions. We
conclude the evidence was sufficient and affirm the district court.
I. DISCUSSION
Hunter failed to move for a judgment of acquittal after all the evidence was
presented, thus we will “reverse the conviction only to prevent a manifest
miscarriage of justice.” See United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002). Under this standard, the evidence on a key element of the offense must
be “so tenuous that a conviction would be shocking.” Id. We may not review
determinations made by the jury as to the credibility of witness testimony unless
such testimony is “incredible as a matter of law.” United States v. Chastain, 198
F.3d 1338, 1351 (11th Cir. 1999). Testimony is incredible as a matter of law only
when it is “unbelievable on its face” and relates to “facts that the witness
physically could not have possibly observed or events that could not have
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occurred under the laws of nature.” United States v. Calderon, 127 F.3d 1314,
1325 (11th Cir. 1997) (internal quotations and brackets omitted).
A. Distribution of Cocaine
In order to convict a defendant of distribution of cocaine, the government
must prove the defendant knowingly or intentionally distributed or dispensed a
controlled substance. 21 U.S.C. § 841(a)(1). Sergeant Walton and Investigator
Beaty testified they set up a controlled buy between William Pennywell and
Hunter. Both officers testified they personally did not have Pennywell in sight
during the entire buy, but they each followed Pennywell from their locations and
communicated with the other officers about his whereabouts at all times.
Investigator Beaty further testified he conducted searches of Pennywell at all
integral parts of the controlled buy and Pennywell did not have any cocaine in his
possession until after he left Hunter’s house for the last time. Moreover,
Pennywell testified he participated in the controlled buy and he received the
cocaine from Hunter. Because the jury found the testimony of Sergeant Walton,
Investigator Beaty, and Pennywell credible, and their testimony was not
“unbelievable on its face,” their credibility may not be reviewed by this Court. See
Calderon, 127 F.3d at 1325. Therefore, the Government’s evidence was sufficient
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to establish each element of the distribution charge, specifically that Hunter
knowingly or intentionally distributed a controlled substance.
B. Firearms Offenses
In order to convict a defendant of possession of a firearm by a felon, the
government must prove: (1) the defendant has been convicted, in any court, of a
crime punishable by imprisonment for a term exceeding one year, and (2) the
defendant shipped or transported in interstate or foreign commerce, or possessed
in or affecting commerce, (3) any firearm or ammunition. 18 U.S.C. § 922(g)(1).
In United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir.), cert. denied, 125 S. Ct.
324 (2004), we determined that, in order to convict a defendant of possession of a
firearm by a felon, the government must prove the defendant had actual or
constructive possession of the firearm. We stated: “[a] defendant has constructive
possession if he exercises ownership, dominion, or control over the firearm” or if
he “has the power and intention to exercise dominion or control.” Id. Analyzing
the sufficiency of the evidence required to support a conviction for possession of a
firearm in furtherance of a drug-related crime, we determined: “there must be a
showing of some nexus between the firearm and the drug selling operation.”
United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002) (internal
quotations and citations omitted). We further stated the nexus:
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can be established by the type of drug activity that is being
conducted, accessibility of the firearm, the type of the weapon,
whether the weapon is stolen, the status of the possession (legitimate
or illegal), whether the gun is loaded, proximity to the drugs or drug
profits, and the time and circumstances under which the gun is found.
Id. (internal quotations and citation omitted).
Sergeant Walton testified that, during a search of Hunter’s home, he
discovered marijuana in a room believed to be Hunter’s. Sergeant Walton also
testified the marijuana and a firearm found in the closet both were easily
accessible from where Hunter was standing. Officer Luther corroborated Sergeant
Walton’s assertion the room was Hunter’s, stating he found numerous pictures of
Hunter and documents bearing Hunter’s name located in the same room as where
the marijuana and firearm were found. Further, Officer Pennington testified she
found a loaded firearm in a suitcase bearing Hunter’s name located in that same
room. Witness Omeca Langston also confirmed she had purchased marijuana
from Hunter minutes before the police arrived.
In light of this evidence, the Government sufficiently established Hunter
had constructive possession of the firearm found in the closet. From Hunter’s
location in the room and the evidence the room belonged to him, the Government
established Hunter had “ownership, dominion, or control over the firearm,” or he
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had “the power and intention to exercise dominion or control.” See Gunn, 369
F.3d at 1235. Furthermore, under the factors set out in Timmons, the Government
sufficiently established a nexus between Hunter’s possession of the firearm and
his possession of marijuana by showing the firearm and marijuana were both
within Hunter’s reach, the firearm was loaded, and Hunter was actively involved
in selling marijuana, as evidenced by Langston’s testimony. See Timmons, 283
F.3d at 1253. Thus, the Government established Hunter, having been previously
convicted of a crime punishable by more than one year imprisonment, knowingly
possessed a firearm in furtherance of a drug trafficking crime.
II. CONCLUSION
Hunter has not demonstrated the evidence relating to a key element of any
of the charged offenses was so tenuous his conviction would be considered
shocking. Accordingly, we affirm his convictions.
AFFIRMED.
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