[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 25, 2007
No. 06-13284 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00110-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CLINTON MCCORVEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 25, 2007)
Before BLACK, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
James Clinton McCorvey appeals his convictions and sentences for
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841, and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
After a thorough review of the record, we affirm.
I. Background
Prior to trial, the government gave notice of its intent to introduce evidence
of McCorvey’s 2002 conviction for a controlled substance offense and a 1994
conviction for possession of a firearm by a convicted felon prior convictions under
Fed. R. Evid. (“Rule”) 404(b).
Also prior to trial, McCorvey moved to suppress evidence and to identify the
confidential informant who supplied information that formed the basis of the
search warrant for his residence that led to the discovery of the drugs and firearm.
According to the affidavit for the search warrant, police used a confidential
informant to engage in a controlled buy of drugs from McCorvey at McCorvey’s
home. McCorvey submitted a sworn affidavit denying any involvement in the
controlled buy. At a hearing, the officer who filed the affidavit testified about the
controlled buy, and the court found that there was no false statement in the
affidavit. The court then denied the motions to suppress and to identify the
informant.
The evidence at trial established the following: as part of a drug
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investigation, Escambia County Sheriff’s Office narcotics investigator Reginald
Bruster executed a search warrant for McCorvey’s residence, which he was able to
identify based on bills for that address listed in McCorvey’s name. In the bedroom
of McCorvey’s house, police found McCorvey’s wallet, cash, and cans with false
bottoms. The cans contained little baggies like the ones used to store and package
drugs for distribution. Police also found cocaine and Mannitol, a cutting agent
used to dilute drugs, enabling sellers to increase profits. In the living room, police
found more baggies and electronic scales. In another room that appeared to be
used as storage, police found clothes, pill bottles with McCorvey’s name on them,
and a loaded firearm with two types of ammunition in a dresser drawer. The
amount of drugs found was 15.9 grams of cocaine.
Bruster testified that his investigation did not uncover any legitimate source
of income for McCorvey. Defense counsel objected to the testimony, which the
court overruled. Counsel later clarified the basis for his objection - that Bruster’s
testimony concerning McCorvey’s lack of income was based on hearsay. Counsel
moved for a mistrial, which the court overruled, noting that counsel could have
cross-examined Bruster to determine the basis of his knowledge.
The government reiterated that it intended to call a witness to testify to
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McCorvey’s prior convictions.1 Defense counsel objected to the testimony in
general, but specifically to the use of a witness to discuss the convictions. Counsel
also noted that the testimony would be irrelevant and prejudicial. The court
overruled the objection. ATF Agent Peter Bondjuk testified that McCorvey had
prior convictions for possession of cocaine in 2002 and possession of a firearm by
a convicted felon in 1994.
McCorvey called a single witness and did not testify on his own behalf.
Lawrence Coker testified that his son had been living in the house with McCorvey.
After Coker’s son died, Coker never removed his son’s belongings.
In preparing the jury instructions, defense counsel requested an instruction
on the lesser included offense of possession because the small amount of drugs was
consistent with personal use. The court denied the instruction, finding it
unnecessary because the jury could find McCorvey not guilty if it believed the
drugs were for personal use. In its instructions, the court informed the jury that the
prior convictions were admissible for the limited purposes of determining whether
McCorvey had the required intent and whether he acted without mistake or
accident. The jury convicted McCorvey of both counts.2
1
The parties stipulated that McCorvey had a prior felony conviction for purposes of the
instant § 922(g) charge. Expert testimony established that the firearm and ammunition found in the
house traveled in interstate or foreign commerce.
2
The court denied McCorvey’s motions for post-verdict judgment of acquittal.
4
Prior to sentencing, the government filed an information on enhanced
penalties under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), in
which it identified the following prior convictions: battery, battery on a law
enforcement officer, possession with intent to deliver, and sale of a controlled
substance.
The probation officer prepared a presentence investigation report (“PSI”),
grouping the two counts together and assigning a base offense level of 20 under
U.S.S.G. § 2K2.1(a)(4) based on the prior battery conviction. The probation
officer then included a 4-level increase under U.S.S.G. § 2K2.1(b)(5) because
McCorvey possessed the firearm in connection with another felony offense, i.e. the
controlled substance offense in count one, and a 2-level increase for obstruction of
justice, U.S.S.G. § 3C1.1, based on the false affidavit McCorvey submitted in his
earlier motion to suppress. Under the ACCA, McCorvey’s adjusted offense level
was 34.
The probation officer then detailed McCorvey’s lengthy criminal history,
which identified more than 20 prior convictions for assault and battery, controlled
substance offenses, and firearm offenses. Based on McCorvey’s status as a career
offender, his criminal history category was VI, which resulted in a guidelines range
of 262 to 327 months imprisonment. The probation officer recommended a
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sentence in the middle of the range, but did not recommend a fine because the
records indicated that McCorvey would be unable to pay a fine due to outstanding
debt and overdue child support.
The court overruled McCorvey’s various objections to the enhancements and
adopted the PSI. Upon consideration of the sentencing factors in 18 U.S.C.
§ 3553(a), including McCorvey’s prior convictions, the court sentenced McCorvey
to 294 months imprisonment. The court also imposed a fine of $800, which was
below the guidelines range, finding that McCorvey would not be able to pay a fine
within the range, but that the opportunities he had in prison as well as upon release
would enable him to pay a smaller fine. McCorvey objected to the fine imposed.
McCorvey now appeals, challenging the admission of his two prior
convictions, the testimony regarding his income, the failure to instruct the jury on
the lesser included offense, and the imposition of a fine.3
II. McCorvey’s Appeal
We review a district court’s decision to admit evidence for abuse of
3
McCorvey also challenges the conclusion that the firearm was “in connection with” drug
distribution and whether the court plainly erred in imposing a sentence that was sufficient and “a
greater sentence should not be necessary.” Upon review, we affirm without further discussion. See
United States v. Garcia-Delgado, 184 Fed. Appx. 851 (11th Cir. 2006) (unpublished) (holding that
the court’s statement that the sentence was “sufficient, and a greater sentence is not necessary” did
not contradict the requirements of § 3553(a)); United States v. Rhind, 289 F.3d 690, 695 (11th Cir.
2002) (holding that to apply the firearm enhancement, the firearm need only “reflect the context of
the defendant’s possession,” and the defendant’s ability to use the firearm to promote the controlled
substance offense).
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discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). A
district court’s refusal to give a particular jury charge also is reviewed for abuse of
discretion. United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). We review
a district court’s determination that the defendant is able to pay the fine for clear
error. United States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006); United
States v. Singh, 335 F.3d 1321, 1323 n.1 (11th Cir. 2003).
A. Admission of Prior Convictions
McCorvey argues that the court misapplied Rule 404(b) and admitted
prejudicial and irrelevant evidence, leaving the jury to picture him as a violent
repeat offender. He contends that his prior convictions were not relevant to the
issue of intent because intent was not an element of the 922(g) offense. He further
notes that he stipulated that he had a prior felony conviction, and, therefore, the
prior convictions were not admissible to prove this element of his § 922 offense.
Although he acknowledged that this court permits evidence of a prior conviction to
show knowing possession of a firearm, he asserts that it was not probative in the
instant case because there was no information about the prior conviction and it is
unknown whether the prior conviction was similar. McCorvey admits that intent is
an element of his controlled substance offense, but he asserts that his prior
conviction for possession of a controlled substance is not probative of his intent to
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commit possession with intent to distribute, as the two offenses have different
elements.
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” Fed. R. Evid. 404(b). The rule is one of “inclusion.”
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).
As this court has explained, evidence is admissible under Rule 404(b) if:
“(1) it is relevant to an issue other than the defendant’s character; (2) the prior act
is proved sufficiently to permit a jury determination the defendant committed the
act; and (3) the evidence’s probative value cannot be substantially outweighed by
its undue prejudice, and it must satisfy Federal Rule of Evidence 403.”4 United
States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006); Jernigan, 341 F.3d at 1280.
McCorvey does not challenge whether the prior convictions were proven
sufficiently; thus only the first and third prongs are at issue.
As to the first prong, we conclude that the prior convictions were relevant to
4
Rule 403 provides, “[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.”
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show intent and absence of mistake. McCorvey’s defense was that his prints were
not found on the evidence, that the evidence belonged to a previous resident of the
house, and that he did not knowingly possess the firearm. Based on this defense,
McCorvey placed his intent and lack of mistake at issue. Jernigan, 341 F.3d at
1281-82. Thus, the evidence was admissible to prove intent and absence of
mistake. Moreover, the fact that the prior conviction involved possession of a
controlled substance and that the instant offense involved possession with intent to
distribute does not render the prior conviction inadmissible. See United States v.
Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (explaining that a prior conviction
for possession was relevant to the instant charge for possession with intent to
distribute); United States v. Butler, 102 F.3d 1191 (11th Cir. 1997). Furthermore,
evidence of a prior possession of a firearm is admissible to show knowledge in a
prosecution for knowingly possessing a similar weapon. Jernigan, 341 F.3d at
1281.
With respect to the third prong, the probative value of the evidence
outweighed the prejudicial value. Despite McCorvey’s claim that the evidence
caused the jury to view him as a violent repeat offender, the jury only heard about
two prior convictions - one for controlled substances and one for firearm
possession. The jury did not learn any details of the convictions, or of McCorvey’s
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lengthy criminal history. Thus, the evidence was not prejudicial. Moreover, the
court instructed the jury that the evidence was admissible for the limited purpose of
showing intent and absence of mistake, and not to determine whether McCorvey
committed the instant offense. Jernigan, 341 F.3d at 1283. Therefore, the court
did not abuse its discretion by admitting the prior convictions.
Even if the court erred, any error was harmless in light of the overwhelming
evidence against McCorvey. United States v. Gunn, 369 F.3d 1229, 1236 (11th
Cir. 2004); United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (stating
that error is harmless “where there is overwhelming evidence of guilt” or “the error
had no substantial influence on the outcome and [other] sufficient evidence . . .
supports the verdict”). Police found drugs and drug paraphernalia in McCorvey’s
bedroom, in a house listed in McCorvey’s name, and on the bed with McCorvey’s
wallet. In light of this evidence, permitting the jury to hear about two prior
convictions was harmless.
B. McCorvey’s Income
McCorvey next argues that the court improperly admitted testimony that
investigators found no legitimate source of income because there was no
foundation for the testimony as required by Rule 602 and 701.
Under Rule 602, “[a] witness may not testify to a matter unless evidence is
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introduced sufficient to introduce a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but need
not, consist of the witness’ own testimony.” Fed. R. Evid. 602. A witness’s lay
opinion is admissible if, inter alia, it is “rationally based on the perception of the
witness.” Fed. R. Evid. 701.
Here, the court did not abuse its discretion. Bruster testified that he was
involved in the investigation and that he was unable to find any legitimate source
of income. Thus, Bruster had personal knowledge, based on his investigation, and
his testimony satisfied Rule 602.
Moreover, even if there was error, that error was harmless because, as
discussed above, the evidence against McCorvey was overwhelming. Harriston,
329 F.3d at 789.
C. Jury Instructions
In his next argument, McCorvey asserts that the court erred by refusing to
instruct the jury on the lesser included offense of possession because the evidence
was consistent with the offenses of simple possession and a rational juror could
have found him guilty of the lesser offense.
A defendant is entitled to an instruction on a lesser included offense if “there
was a reasonable basis on which the jury could find the defendant guilty of [the
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lesser offense] beyond a reasonable doubt yet entertain a reasonable doubt [as to
the greater offense].” United States v. Catchings, 922 F.2d 777, 780 (11th Cir.
1991). As this court has explained, in the context of possession and distribution of
drugs, where the factual issues are the same for both the lesser offense of
possession and the greater offense of distribution, the instruction on possession is
not required. Id. at 780-81; United States v. Pirolli, 742 F.2d 1382, 1387 (11th Cir.
1984).
Here, the facts involved in the two offenses were the same, and therefore, the
instruction was not required. See Lee, 68 F.3d at 1273. Moreover, McCorvey’s
reliance on United States v. Gibbs, 904 F.2d 52 (D.C. Cir. 1990), is misplaced. In
Gibbs, police found only about 15 grams of drugs, but did not find any drug
paraphernalia. In contrast, in this case, there was evidence that police found
baggies, scales, and cutting agents, which were consistent with drug distribution.
Moreover, there was no evidence in the instant case of personal use. Lee, 68 F.3d
at 1273. Accordingly, the court did not abuse its discretion by denying the
instruction.
D. Imposition of a Fine
Finally, McCorvey argues that the court erroneously determined that he
would be able to pay a fine below the guidelines range because the record reflected
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his debt and the PSI recognized his inability to pay.
Under U.S.S.G. § 5E1.2, “[t]he court shall impose a fine in all cases, except
where the defendant establishes that he is unable to pay and is not likely to become
able to pay any fine” “even with the use of a reasonable installment schedule.”
U.S.S.G. § 5E1.2(a) & (e)(1). McCorvey has the burden of proving inability to
pay. McGuinness, 451 F.3d at 1307; United States v. Hernandez, 160 F.3d 661,
665 (11th Cir. 1998).
Here, the district court found that McCorvey would not be able to pay a fine
under the guidelines range, but that he was able to pay a smaller fine, which
contradicted the PSI’s findings. The court made no other factual findings except to
adopt the PSI.
This court has held that the sentencing court is not required to make specific
findings of fact with respect to the Sentencing Guideline factors as long as “‘the
record reflect[s] the district court’s consideration of the pertinent factors prior to
imposing the fine.’” United States v. Lombardo, 35 F.3d 526, 530 (11th Cir.1994).
These factors include: the defendant’s income; earning capacity; financial
resources; the burden on the defendant and his dependents; pecuniary loss inflicted
on others as a result of the offense; whether restitution is ordered; the need to
deprive the defendant of illegal gains; and the need to promote respect for the law,
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provide just punishment, and adequate deterrence. U.S.S.G. § 5E1.2(d). If it is
unclear from the record as to the court’s reasons for imposing a fine, this court
should remand the case so that the court can make the necessary factual findings.
United States v. Rowland, 906 F.2d 621, 624 (11th Cir. 1990).
Here, the court reviewed and adopted the PSI, but then found that
employment opportunities in prison and after release would enable McCorvey to
pay a fine in the amount of $800. McCorvey has offered nothing to show his
inability to pay this small amount. As the court noted, McCorvey is only 48 years
old, has a college education, and has no medical conditions that would prevent him
from being able to work while incarcerated and after release. Thus, it appears that
the court sufficiently considered the necessary factors before imposing a fine.
McCorvey has offered nothing other than the PSI’s findings of his outstanding debt
as evidence of his inability to pay.
III. Conclusion
For the foregoing reasons, we AFFIRM McCorvey’s convictions and
sentences.
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