[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 6, 2006
No. 05-12379
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00204-CR-BBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEWAYNE B. SMITH,
a.k.a. Dewayne Smith,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 6, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Dwayne B. Smith appeals (1) his conviction following a jury trial for
possessing a firearm in furtherance of a drug-trafficking offense, in violation of 18
U.S.C. § 924(c), and (2) his total 111-month sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1); possessing with
intent to distribute a detectible amount of cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(c), and his § 924(c) offense. Smith argues on appeal that the
government’s evidence was not sufficient for a reasonable jury to conclude that he
possessed firearms in furtherance of a drug-trafficking offense, and that the district
court, therefore, erred in denying his motion for a judgment of acquittal, filed
pursuant to Fed.R.Crim.P. 29. Furthermore, Smith contends that the court erred in
adopting facts in Smith’s presentence investigation report (“PSI”) relating to his
offenses of conviction, in violation of the Supreme Court’s decision in Shepard v.
United States, 544 U.S. 13, ___, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005).
For the reasons set forth more fully below, we affirm.
After a federal grand jury returned an indictment, charging Smith with the
above-referenced offenses, he plead guilty to the §§ 922(g)(1) and 841(a)(1)
offenses. During Smith’s plea colloquy, he agreed that the government could
establish that (1) officers with the Doraville Police Department searched an
apartment that Smith had used, but at which he did not reside; (2) during this
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search, the officers recovered from throughout the apartment eight-and-a-half
ounces of cocaine, three ounces of marijuana, baggies, and a scale; (3) the officers
also recovered from underneath a seat cushion and next to the sofa a loaded .38
special .357 Magnum and a loaded .45 caliber revolver; (4) Smith previously had
been convicted of at least one controlled-substance offense; (5) he previously had
traded drugs to obtain the firearms at issue; (6) he had the firearms for protection;
(7) he intended to sell the cocaine; and (8) the firearms either were made or
assembled outside of Georgia.
Smith then proceeded to a jury trial on his remaining § 924(c) offense,
during which John Kanupke, an investigator with the Special Investigation Section
of the Doraville Police Department, testified that, pursuant to a search warrant
obtained through information supplied by a confidential informant (“CI”), officers
entered an apartment at 1449 Briarwood Road, Apartment 32, Atlanta, Georgia,
and they searched it for drugs and drug paraphernalia. On entering this apartment,
Investigator Kanupke observed that it was unfurnished, except for a couch, chair,
and a television set, and that it contained no personal items, other than some
clothing in a corner and an insurance letter addressed to Smith in a kitchen cabinet.
Investigator Kanupke further testified that, as part of this search, the officers
recovered (1) three baggies of cocaine from inside a cabinet, next to an open box of
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baking soda and sandwich bags; (2) an electronic digital scale, with white residue
on its surface, from the lower shelf of the same cabinet; (3) an additional baggie of
cocaine from inside a dustpan on the top of the refrigerator; (4) a box of 12
Remington .45 caliber bullets with dime-size baggies from drawers adjacent to the
refrigerator; and (5) three baggies of cocaine from inside a light fixture in the
bathroom. In the living-room area, the officer also recovered (1) a loaded .38
special .357 Magnum revolver from the floor, next to the couch; and (2) a loaded
Smith and Wesson .45 caliber revolver from underneath the middle cushion of the
couch. When Smith drove up to the apartment during this search, the officers
recovered from his person more than $1,000 in U.S. currency. The officers also
discovered that one of Smith’s keys fit the lock of the apartment. After being
taken to the police station, Smith conceded that: (1) although the apartment was not
his primary residence, he used it; (2) he owned the cocaine recovered from the
residence; (3) two years earlier, he had purchased the firearms with $100 worth of
cocaine; and (4) he had the firearms for protection, because he was scared.
At the close of the government’s evidence, Smith moved for a Rule 29
judgment of acquittal, arguing that the government had produced insufficient
evidence to prove that he possessed the firearms at issue in relation to, or in
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furtherance of, a drug-related offense. After the district court reserved its ruling on
this Rule 29 motion, the jury found Smith guilty of the § 924(c) offense.
Prior to sentencing, the probation officer prepared a PSI, which included a
description of the offense conduct. Smith objected to this description, arguing that,
because this information was obtained by reviewing the prosecutor’s case file and
the investigative police reports, it was hearsay. Smith also cited in support to
Shepard, 544 U.S. at ___, 125 S.Ct. at 1263, in which the Supreme Court decided
that a sentencing court may not rely on police reports in deciding whether a prior
conviction was a “generic burglary,” in the context of determining whether the
conviction is a “violent felony” under the Armed Career Criminal Act.1 The
probation officer responded that the inclusion of this offense conduct was proper
because (1) Smith admitted it during his plea colloquy as it related to his
§§ 922(g)(1) and 841(a)(1) offenses, and (2) the government established at trial his
§ 924(c) offense conduct.
At sentencing, Smith renewed his objection to the PSI’s inclusion of offense
conduct that the probation officer obtained solely by reviewing the prosecutor’s
case file and police reports. Smith also explained that, to the extent the
1
The Armed Career Criminal Act sets a mandatory minimum 15-year sentence for a
defendant who is convicted of possessing a firearm, pursuant to 18 U.S.C. § 922(g), when the
defendant has three prior convictions for serious drug offenses, “violent felonies,” or a
combination of both. See 18 U.S.C. § 924(e).
5
government produced evidence at trial, he did not believe that this evidence
established his § 924(c) conviction. Apparently interpreting this additional
explanation as a renewal of Smith’s Rule 29 motion, the court stated as follows:
I think it is a very close question, the [§] 924(c) conviction. Because
the facts of the case were that Mr. Smith was down in his automobile.
The gun was up in the apartment. There wasn’t any evidence that I
heard [] that there was a drug transaction being conducted at the time.
So it gives me just intellectually a problem making that leap . . . But
the precedent, as you know, in the Eleventh Circuit, you know, I think
the jury was properly instructed on what the rules are and they found
that he did have the gun in furtherance of a drug[-]trafficking offense.
I think they were instructed that it has to have some purpose or effect
with respect to the drug[-] trafficking crime, and had I been on the
jury I’m not sure I would have seen that from the evidence in this
case, but, of course, that’s not the standard on a motion for a directed
verdict. I think I’ve got to deny that. I don’t know what the Eleventh
Circuit will do with that and I hope you’ll present the question to
them.
In addition to responding that Shepard was inapplicable because Smith,
unlike the defendant in Shepard, was not an armed career offender, the government
offered testimony from the probation officer who prepared Smith’s PSI that the
officer had relied, at least in part, on charging documents and sentencing
documents in determining Smith’s criminal-history points. On cross-examination,
the probation officer conceded that she also relied on information she received
from the prosecutor’s file in preparing the offense-conduct section of the PSI.
Smith, however, clarified that he was not objecting to the PSI’s calculation of his
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offense level or his criminal-history points. Explaining that it only was relying on
offense conduct in the PSI that it had learned through the plea colloquy and at trial,
the court overruled this objection. The court then adopted the PSI’s factual
findings and calculations, and it sentenced Smith to 111 months’ imprisonment, 3
years’ supervised release, and a $1,500 fine.
Smith contends that his appeal presents an issue of first impression, that is,
does a defendant’s possession of firearms satisfy the “in furtherance of”
requirement in § 924(c) when there is no evidence that the defendant was involved
in a drug transaction at the time he possessed the firearms. Smith asserts that the
government presented no evidence showing that the firearms were accessible when
drug transactions occurred, or that he possessed the firearms to protect either the
drugs or their profits. Smith also contends that neither his status as a convicted
felon in possession of a firearm, nor his general concession that he obtained the
firearms for “protection because he was scared,” was sufficient to establish the “in
furtherance of” requirement. Moreover, Smith argues that the jury’s finding that
the government satisfied § 924(c)’s “in furtherance of” requirement was
inconsistent with the statute’s legislative history, our caselaw, and persuasive
authority from other circuits.
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We review de novo the sufficiency of evidence to support convictions.
United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004). We, however,
resolve all reasonable inferences in favor of the jury’s verdict. Id. “The evidence
is sufficient so long as a reasonable trier of fact, choosing among reasonable
interpretations of the evidence, could find guilt beyond a reasonable doubt.” Id.
(quotation omitted).
The statute at issue, § 924(c)(1)(A), is applicable when:
[A]ny person who, during and in relation to any crime of violence or
drug[-] trafficking crime . . . for which the person may be prosecuted
in a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm . . ..
18 U.S.C. § 924(c)(1)(A). Prior to Congress adding the “in furtherance of” prong
of this statute in November 1998, the government was required to prove that the
defendant used or carried the firearm. See United States v. Suarez, 313 F.3d 1287,
1291-92 (11th Cir. 2002) (discussing prior caselaw interpreting § 924(c)).
Moreover, in construing the “use” prong of this prior version of § 924(c), the
Supreme Court held in Bailey v. United States, 5165 U.S. 137, 143-44, 116 S.Ct.
501, 505-06, 133 L.Ed.2d 472 (1995), that mere possession of a firearm during
such a crime was not sufficient and that an active employment of the firearm by the
defendant, instead, was required.
8
Subsequent to the 1998 Amendment to § 924(c), we adopted the Fifth
Circuit’s reasoning in United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir.
2000), that is, that the plain meaning of “furtherance” was consistent with the
legislative intent of this amendment and not in violation of the canons of statutory
construction. United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002)
(citing Ceballos-Torres, 218 F.3d at 415). We discussed that the legislative history
indicated that the amended version of the statute added the phrase criminalizing
possession “in furtherance of” a drug- trafficking crime to “revers[e] the restrictive
effect of the Bailey decision.” Timmons, 293 F.3d at 1252 (quoting H.R. Rep.
105-455 at 6 (1997)). Thus, we concluded that, although “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,” a conviction is supported
by “a showing of some nexus between the firearm and the drug[-]selling
operation.” Timmons, 283 F.3d at 1253.
Additionally, we adopted in Timmons the following non-exclusive list of
factors for determining whether this nexus exists: (1) the type of drug activity that
was being conducted, (2) the accessibility of the firearm, (3) the type of firearm,
(4) whether the firearm was stolen, (5) whether the possession of the firearm was
legal, (6) whether the firearm was loaded, (7) the firearm’s proximity to the drugs
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or drug profits, and (8) the time and circumstances under which the firearm was
found. Id. Applying these factors in Timmons, we concluded that, although the
defendant was standing outside of his apartment when the police arrive, he had
possessed a firearm “in furtherance of” a drug trafficking offense when he had on
his person a cellular phone and a pager, and the police recovered (1) a two-way
radio from the ground a few feet away from the defendant, (2) documents from
inside the apartment indicating that the defendant lived there, (3) two fully loaded
firearms from the top of the stove-top oven, (4) an empty ammunition box of 9mm
cartridges from inside the oven, (5) a bullet-proof vest from the closet next to the
living room, (6) cocaine base and $350 from inside a drawer under the stove, (7) a
plastic baggie with individual hits of cocaine base from under the cushions of the
couch, and (8) six individually packaged rocks of cocaine base from a shoe
matching the defendant’s size in the bedroom of the apartment. Id. at 1249, 1253.
Similarly, in United States v. Suarez, 313 F.3d 1287 (11th Cir. 2002), one of
the defendants argued that his § 924(c) conviction was not supported by sufficient
evidence because the evidence showed that his possession of a firearm was
“merely coincidental with the criminal conduct.” Id. at 1291. Applying the
Timmons factors, we discussed that (1) the defendant’s residence, where the
firearms were recovered, was the initial delivery point of the drugs from Mexico;
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(2) the firearms recovered from the residence consisted of the civilian version of an
AK-47, two semi-automatic rifles, a sawed-off shotgun, two semi-automatic
pistols, and a Tech .9 millimeter Intertech pistol; (3) the firearms were distributed
in several different places and were easily accessible; (4) two of the firearms were
illegally shortened; and (5) none of the firearms was of a type typically used for a
legal purpose, such as hunting. Id. at 1292-93. We concluded that the jury
reasonably could have inferred that the firearms recovered from the residence were
to be used to protect the conspirators’ investment in their shipment, and that the
evidence in the case was sufficient to support a conviction for possession of a
firearm in furtherance of a drug-trafficking crime. Id. at 1293.
Applying the Timmons factors to the facts in the instant appeal, Investigator
Kanupke testified that the officers recovered from the apartment in question
(1) three baggies of cocaine from inside an upper cabinet, next to an open box of
baking soda and sandwich bags; (2) an electronic digital scale, with white residue
on its surface, from the lower shelf of the same cabinet; (3) an additional baggie of
cocaine from inside a dustpan on the top of the refrigerator; (4) a box of 12
Remington .45 caliber bullets with several dime-size baggies from drawers
adjacent to the refrigerator; and (5) three baggies of cocaine from inside a light
fixture in the bathroom. Moreover, the firearms, which Investigator Kanupke
11
testified were recovered from the floor, next to the couch in the living room, and
underneath the middle cushion of the couch, were readily accessible. Indeed, to
the extent Smith is contesting accessibility because he was stopped and arrested
outside of the apartment, the officers discovered that one of Smith’s keys fit the
lock of the apartment, and an insurance paper recovered from the apartment had
Smith’s name on reflected that he at least used the apartment. See United States v.
Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (explaining that, for purposes of
§ 924(c), “[p]ossession may be actual or constructive, joint or sole”) (quotation
omitted).
Furthermore, similar to the firearms in Suarez, neither the .38 special .357
Magnum, nor the .45 caliber revolver, was of a type typically used for a legal
purpose, such as hunting. See Suarez, 313 F.3d at 1292-93. These firearms were
loaded, as well as being illegally possessed by a convicted felon and obtained in
exchange for drugs. Similar to the facts in Timmons, a box of 12 Remington .45
caliber bullets were recovered in close proximity in the kitchen to evidence
indicating drug distribution, including baggies of cocaine, an open box of baking
soda, sandwich bags, and an electronic digital scale with white residue on its
surface. See also Timmons, 283 F.3d at 1249, 1253. Moreover, despite Smith’s
contention that his general statement that he had the firearms for protection did not
12
establish the requisite nexus, the jury, in reviewing this admission as well as the
evidence recovered from the apartment, reasonably could have inferred that the
firearms recovered from the residence were to be used to protect the intended drug
trafficking activity. See Suarez, 313 F.3d at 1293.
Thus, “a reasonable trier of fact, choosing among reasonable interpretations
of the evidence,” could have found Smith guilty beyond a reasonable doubt of
possessing a firearm in furtherance of a drug-trafficking offense, and the district
court did not err in denying Smith’s Rule 29 motion. See Pineiro, 389 F.3d at
1367. We, therefore, affirm Smith’s § 924(c) conviction.
Smith also is arguing on appeal that the district court erred in adopting the
PSI’s factual findings as they related to his possession with intent to distribute
cocaine base when the probation officer testified at sentencing that she relied upon
the government’s case file and police reports. In raising this argument, Smith
again relies on the Supreme Court’s holding in Shepard.
Post-Booker,2 we continue to review a district court’s factual determinations
for clear error. See United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.
2
The Supreme Court in Booker held that the mandatory nature of the federal guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.
See United States v. Booker, 543 U.S. 220, ___, 125 S.Ct. 738, 749-51, 160 L.Ed.2d 621
(2005). Furthermore, the Booker Court reaffirmed that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” See id. at ___, 125 S.Ct. at 756.
13
2005) (explaining that Booker did not alter this Court’s standards of review). We
cannot find clear error unless we are “left with a definite and firm conviction that a
mistake has been committed.” Id. at 1177 (quotation omitted). On the other hand,
we review de novo the application by the district court of law to facts. United
States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).
As discussed above, the Supreme Court decided in Shepard that a sentencing
court may not rely on police reports in deciding whether a prior conviction was a
“generic burglary,” in the context of determining whether the conviction is a
“violent felony” under the Armed Career Criminal Act. Shepard, 543 U.S. at ___,
125 S.Ct. at 1263. Instead, when it is impossible to determine from the judgment
or statute whether the prior conviction satisfies the enhancement statute, the court’s
review “is limited to the terms of the charging document, the terms of the plea
agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
judicial record of this information.” Id.
In the instant appeal, however, Smith was not sentenced as an armed career
criminal. At sentencing, Smith also conceded that he was not challenging the
court’s determination of his criminal history. Moreover, Smith has failed to cite to
caselaw in which either the Supreme Court or this Court has extended the Supreme
14
Court’s decision in Shepard to facts in a PSI relating to the defendant’s offense
conduct. Thus, we conclude that Shepard is inapplicable.3
Regardless, even if the Supreme Court’s decision in Shepard was applicable,
Smith’s argument is without merit. In addressing Smith’s Shepard objection
during sentencing, the district court explicitly stated that, although the PSI
arguably contained hearsay evidence, the court was relying solely on offense
conduct described in the PSI that either Smith had admitted during his plea
colloquy, or the government had established at trial. Thus, no error occurred.
Accordingly, we conclude that the evidence was sufficient for a reasonable
jury to conclude that Smith possessed firearms in furtherance of a drug-trafficking
offense. The district court, therefore, did not err in denying Smith’s Rule 29
motion for a judgment of acquittal. We also conclude that, even if the Supreme
Court’s decision in Shepard was applicable, the district court did not err in relying
3
We note that, although a plurality of the Supreme Court in Shepard explained that,
while a dispute over whether a burglary was a “violent felony” for purposes of § 924(e)
enhancement could be “described as a fact about a prior conviction, it [was] too far removed
from the conclusive significance of a prior judicial record, and too much like the findings subject
to Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi
[v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)], to say that Almendarez-
Torres [v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)] clearly
authorizes a judge to resolve the dispute,” see Shepard, 543 U.S. at ___, 125 S.Ct. at 1262, we
repeatedly have explained post-Shepard that Almendarez-Torres must be followed because the
Supreme Court has not explicitly overruled Almendarez-Torres,” see United States v. Greer,
No. 05-11295, manuscript op. at 12-18 (11th Cir. Jan. 10, 2006) (summarizing caselaw in which
we have rejected the argument that Almendarez-Torres was undermined by Apprendi and its
progeny).
15
on offense conduct described in the PSI which had also been admitted or proven at
trial. We, therefore, affirm Smith’s § 924(c) conviction and sentences.
AFFIRMED.
16