[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 2, 2006
No. 06-10109 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00321-CR-T-26EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMITT KIRBY, JR.,
a.k.a. Chickenman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 2, 2006)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Emmitt Kirby, Jr., appeals his conviction for possession of a
firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c), and his
sentences for conspiracy to possess to distribute and to distribute marijuana, 21
U.S.C. §§ 846 and 841(b)(1)(D), and possession with intent to distribute
marijuana, 21 U.S.C. § 841(a)(1) and (b)(1)(D). First, Kirby contends that the
evidence was insufficient to sustain the firearm conviction. Second, Kirby argues
that the firearm statute of conviction is facially unconstitutional. Finally, Kirby
claims that the district court erred in denying him a minor-role reduction under
U.S.S.G. § 3B1.2.
I.
First, Kirby argues that the district court erred in finding him guilty of the
firearm offense. Kirby submits that because the evidence of innocence was of
approximately the same weight as the evidence of guilt, the court could not have
found him guilty beyond a reasonable doubt. Kirby concedes that he possessed a
firearm during the commission of a drug trafficking crime, but, focusing on the in-
furtherance-of-a-drug-trafficking-crime element, asserts that the government failed
to establish a sufficient nexus between his possession of the firearm and any drug-
trafficking crime. Kirby contends that his limited interest in the transaction–he
claims that he merely served as a “go-between” in obtaining the marijuana–would
not permit an inference that he was protecting the marijuana. Kirby further argues
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that the district court inappropriately shifted the burden of proof to himself by
relying on mere possession and stating that it disbelieved Kirby’s defense.1
In reviewing the sufficiency of the evidence in a criminal case following a
non-jury trial, “we must determine whether the evidence, construed in the light
most favorable to the government, would permit the trier of fact to find the
defendant guilty beyond a reasonable doubt.” United States v. Burstyn, 878 F.2d
1322, 1324 (11th Cir. 1989). We will sustain the conviction if there is substantial
evidence to support it. Id.
The U.S. Code criminalizes the possession of a firearm in furtherance of a
drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). The plain meaning of the statute
“dictates that the presence of a gun within the defendant’s dominion and control
during a drug trafficking offense is not sufficient by itself to sustain a § 924(c)
conviction.” United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002).
Instead, the government must establish that the firearm helped, furthered,
promoted, or advanced the drug trafficking. Id. at 1252. In other words, the
government must show some nexus between the firearm and the drug trafficking
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Kirby also points out that much of the government’s testimony related to pattern or profile
evidence and asserts that his lack of a recent criminal history and his stable work and home life
meant that he could not reasonably be assumed to have followed typical patterns. Leaving aside the
fact that Kirby improperly raised this argument for the first time in his reply brief, the record shows
that no evidence of Kirby’s criminal history or work and home life was presented at trial, although
such was described in the PSI. Accordingly, not having such evidence before it, the district court
did not err in ignoring it.
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operation. Id. at 1253. We have supplied a non-exhaustive list of factors that can
help distinguish between possession in furtherance of a crime and innocent
possession, including (1) the type of drug activity being conducted; (2) the
accessibility of the firearm; (3) the type of weapon involved; (4) whether the
weapon was stolen; (5) the status of the possession (legitimate or illegal); (6)
whether the gun was loaded; (7) proximity to the drugs or drug profits; and (8) the
time and circumstances under which the gun was found. Id.
The record demonstrates here that the district court never shifted the burden
of proof to Kirby. It merely stated that it found his defense unbelievable.
Some of the factors we have set forth, such as whether the weapon was
stolen or the status of the possession, have no applicability because there was no
evidence presented relating to these factors. The other factors, however, weigh
against Kirby. This appeared to be a fairly large-scale drug transaction, from a
dealer to another dealer rather than from a dealer to a user. The weapon was easily
accessible in Kirby’s boot. The firearm was a semi-automatic pistol which was
easily fired, especially as it was fully loaded and a round was chambered. Kirby
possessed the gun in the barn where the drugs were located and at the time when
the actual transfer of drugs and money was to have occurred. The evidence, then,
was more than sufficient to sustain the conviction.
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II.
Kirby also argues that his conviction on the firearm count must be vacated
because the statute of conviction, 18 U.S.C. § 924(c), is facially unconstitutional
under the Commerce Clause.
We have repeatedly upheld the constitutionality of § 924(c) against
Commerce Clause challenges. United States v. Ferreira, 275 F.3d 1020, 1028
(11th Cir. 2001); United States v. DePace, 120 F.3d 233, 235 n. 2 (11th Cir. 1997).
Neither the U.S. Supreme Court nor this Court, sitting en banc, has overruled this
holding. Accordingly, it is binding in this case. United States v. Hunt, 459 F.3d
1180, 1181 n. 1 (11th Cir. 2006) (describing the prior panel rule).
We thus conclude that section 924(c) is constitutional, and does not provide
a basis for vacating the firearm conviction.
III.
Finally, Kirby argues that the district court erred in failing to grant him a
minor-role reduction under U.S.S.G. § 3B1.2. Kirby submits that he was hired to
perform the limited, discrete task of acting as a go-between in obtaining the
marijuana for Joiner from the supplier and received as payment only a fraction of
the value of the transaction. Kirby claims that he was substantially less culpable
than Joiner or the CI or anyone else involved in the transaction and had no
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leadership or planning responsibility.
The sentencing guidelines provide for a two-level reduction if a defendant
plays a minor role in the criminal activity. U.S.S.G. § 3B1.2(b). A district court’s
determination of a defendant’s role in the offense is a finding of fact to be
reviewed only for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th
Cir. 1999) (en banc). The proponent of the downward adjustment always bears the
burden of proving a mitigating role in the offense by a preponderance of the
evidence. Id. at 939.
A minor participant is one “less culpable than most other participants, but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment (n. 5).
However, such an adjustment only makes sense
analytically if the defendant can establish that [his] role
was minor as compared to the relevant conduct attributed
to [him]. Otherwise, a defendant could argue that [his ]
relevant conduct was narrow for the purpose of
calculating base offense level, but was broad for
determining [his] role in the offense. A defendant cannot
have it both ways. ... Similarly, where the relevant
conduct attributed to a defendant is identical to [his]
actual conduct, []he cannot prove that []he is entitled to a
minor role adjustment simply by pointing to some
broader criminal scheme in which []he was a minor
participant but for which []he was not held accountable.
De Varon, 175 F.3d at 941 (emphasis in original).
For the drug trafficking counts, Kirby’s guideline range was calculated
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based entirely on the quantity of drugs involved in the single transaction to which
Kirby was a party. Kirby’s actual conduct was the same as the relevant conduct
attributed to him. Kirby, therefore, has failed to demonstrate that the district court
clearly erred in failing to grant him a minor role reduction.
IV.
For the above-stated reasons, we affirm Kirby’s conviction and his
sentences.
AFFIRMED.
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