[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 10, 2007
No. 06-15992 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00038-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONDICK TROUPE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 10, 2007)
Before TJOFLAT, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Rondick Troupe pled guilty to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and was sentenced to 110
months’ imprisonment. On appeal, Troupe challenges only the application of a
four-level enhancement under section 2K2.1 of the advisory Sentencing Guidelines
for possession of a firearm in connection with another felony offense. For the
reasons set forth more fully below, we affirm.
Troupe agreed to a statement of facts, which described the events leading to
his arrest as follows: On May 12, 2006, members of the Tallahassee Police
Department (“TPD”) located a stolen Chevrolet Impala. After a few minutes, a
Honda Accord parked next to the Impala, and two men exited the Accord. When
TPD officers made their presence known, both men fled on foot. The driver,
Troupe, was captured, but the passenger was not. Officers recovered a gun from
Troupe’s jacket pocket as well as a cell phone and $181. They also recovered a
quarter “circle” of crack cocaine and several pieces of crack cocaine from the
passenger-side floorboard of the Accord and a partially smoked marijuana cigarette
from the center console.
In the presentence investigation report (“PSI”), the probation officer applied
a four-level enhancement for possession of a firearm in connection with another
felony offense, as Troupe was found in possession of a firearm in connection with
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aiding and abetting grand theft of a motor vehicle and possession of cocaine with
intent to sell. Troupe objected, arguing that he did not know that the vehicle was
stolen and did not possess the cocaine. The probation officer responded that the
enhancement was appropriate based upon the proximity of the firearm to the drugs
in Troupe’s vehicle.
At the sentencing hearing, Troupe testified that he received a phone call
from his brother because the car his brother was driving, the Impala, had run out of
gas. Troupe drove his brother to the gas station to purchase gas, and then they
returned to the Impala. Troupe denied knowing that the car was stolen until after
he was arrested. When they arrived, his brother, who was sitting in the front
passenger seat of the Accord, exited the vehicle first. Troupe popped the trunk to
get the gas and noticed a pistol in the front passenger seat. He intended to give the
gun back to his brother because he knew that he was not supposed to be around a
gun. When his brother exited the car, Troupe did not see the crack cocaine.
However, he admitted that he saw the crack cocaine in his brother’s lap when they
were returning from the gas station. Troupe initially stated that he had no idea
whether his brother was possessing it with intent to sell, and he denied any
involvement with the sale of crack cocaine. On cross-examination, Troupe
admitted that, in the 1990’s, he had four cocaine-related convictions, which
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generally involved his attempt to sell cocaine or crack cocaine. Troupe also
admitted that: (1) he sold cocaine after 2000; (2) he occasionally obtained cocaine
from his brother; (3) he knew that his brother was selling drugs; and (4) it was not
a “big surprise” to see the cocaine in his brother’s lap. Troupe further admitted
that he had heard that, in the past, his brother had rental cars that were not returned.
He also stated that he assumed that his brother would sell the drugs and that his
brother was not a user of crack cocaine.
The district court overruled Troupe’s objection to the four-level increase,
finding that the enhancement should be applied “in accordance with . . . the
treatment in the [PSI].” The court rejected Troupe’s testimony that he did not
know about the gun until after his brother exited the car. Instead, the court found
that, based on the greater weight of the evidence, it was more likely Troupe’s gun.
The court next found that the gun was not possessed in connection with the theft of
the vehicle, rejecting Troupe’s testimony that he was going to return the gun to his
brother. Stating that the connection to the drugs was a close issue, the court found
that it was more likely that Troupe’s brother possessed the drugs and brought them
into Troupe’s vehicle for the trip to the gas station. The court rejected Troupe’s
testimony that he had no reason to know that his brother was engaged in drug sales
until he saw the drugs in the vehicle, finding that Troupe had greater knowledge of
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his brother’s activities and probably knew, when leaving the house to get gas, that
drug activities were involved.
The district court recognized that, under U.S.S.G. § 2D1.1, an enhancement
for possessing a firearm is applied if the weapon was present at the scene of the
drug offense unless it was clearly improbable that the weapon was connected with
the offense. Noting that guidance from this Court would be helpful as to whether
or not the § 2D1.1 standard was the same as the standard for possession of a
firearm in connection with a felony offense under § 2K2.1, the court stated that this
Court appears to equate the two standards. However, the court explained that, even
if the clearly improbable standard did not apply, it would reach the same
conclusion.
On appeal, Troupe argues that the district court erroneously applied the
application notes from § 2D1.1 instead of those in § 2K2.1, contending that this
enhancement cannot be applied simply because a gun was present with drugs. As
to the district court’s specific findings, Troupe challenges the district court’s
failure to credit his testimony in its entirety as inconsistent with logic and the
evidence presented. He also contends that, under either approach used by the
district court, the enhancement was not warranted.
We review de novo the district court’s application and interpretation of the
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Sentencing Guidelines and its findings of fact for clear error. United States v.
Rhind, 289 F.3d 690, 693 (11th Cir. 2002). “For a factual finding to be ‘clearly
erroneous,’ this court, ‘after reviewing all of the evidence, must be left with a
definite and firm conviction that a mistake has been committed.’” United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (citation omitted).
In calculating the guideline range for a firearm possession offense under
§ 922(g), a four-level increase to the base offense level is required “[i]f the
defendant . . . possessed any firearm . . . in connection with another felony offense
. . . .” U.S.S.G. § 2K2.1(b)(6) (2006) (previously codified at § 2K2.1(b)(5)). The
phrase “in connection with” is not defined in the 2005 Guidelines Manual. See
generally U.S.S.G. § 2K2.1, comment. (2005). Although the text of this provision
has not changed, effective November 1, 2006, the guideline was amended to add
the following commentary:
14. “In Connection With”.--
(A) In General.--Subsection[] (b)(6) . . . appl[ies] if the firearm or
ammunition facilitated, or had the potential of facilitating, another
felony offense . . . .
(B) Application When Other Offense is Burglary or Drug Offense.--
Subsection[] (b)(6) . . .appl[ies] . . . in the case of a drug trafficking
offense in which a firearm is found in close proximity to drugs,
drug-manufacturing materials, or drug paraphernalia. In [this] case[],
application of subsection[] (b)(1) . . . is warranted because the
presence of the firearm has the potential of facilitating another felony
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offense . . . .
U.S.S.G. § 2K2.1, comment. (n.14) (2006); U.S.S.G. App. C, Amend. 691.1
Interpreting the “in connection with” requirement under former
§ 2K2.1(b)(5), we “held that the term ‘in connection with’ in U.S.S.G.
§ 2K2.1(b)(5) should be given its ordinary and natural meaning, and we have
expressly rejected a more restrictive interpretation.” United States v. Smith, 480
F.3d 1277, 1280 (11th Cir. 2007). According to the phrase’s ordinary and natural
meaning, the firearm does not have to facilitate the underlying offense. Rhind, 289
F.3d at 695. Furthermore, “possession of a firearm with intent to use it to facilitate
the commission of a felony offense, or with intent to use it should it become
necessary to facilitate that crime, is possession ‘in connection with’ that offense.”
United States v. Jackson, 276 F.3d 1231, 1234-35 (11th Cir. 2001). “Moreover, in
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Although the PSI’s calculations were based on the 2005 Guidelines Manual, Troupe’s
sentencing hearing was held on November 3, 2006, two days after the November 1, 2006
amendments became effective. Therefore, the district court should have considered whether to
apply this commentary. See U.S.S.G. § 1B1.11(a), (b)(1) (requiring use of the Guidelines
Manual in effect on the date of sentencing unless such an application would constitute an ex post
facto violation); Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d
598 (1993) (“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.”); see also United States v. Saunders, 318 F.3d
1257, 1262 n.4 (11th Cir. 2003) (“Because ‘[t]he court shall use the Guidelines Manual in effect
on the date that the defendant is sentenced,’ § 1B1.11, we reference the Manual effective on 1
November 2001 throughout this opinion.”) (alteration in original). The record suggests that the
district court was not aware of this amendment, but instead applied the 2005 Manual. However,
Troupe has not raised this argument on appeal and, therefore, has abandoned the issue. See
United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (holding that the defendant
abandoned an issue on appeal by failing to offer any argument).
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interpreting Guideline provisions that contain an ‘in connection with’ requirement
identical to U.S.S.G. § 2K2.1(b)(5), we have held that, ‘in certain circumstances,
mere possession of a firearm can be enough to apply a sentencing enhancement.’”
Smith, 480 F.3d at 1280 (quoting Jackson, 276 F.3d at 1234).
With regard to Troupe’s contention that the district court applied an
incorrect legal standard, under § 2D1.1, a drug offense guideline, a two-level
increase is required if a firearm “was possessed.” U.S.S.G. § 2D1.1(b)(1). The
commentary provides that this “adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense.” Id., comment. (n.3). Under this provision, the government need only
prove that the firearm was present during the drug trafficking offense. United
States v. Audain, 254 F.3d 1286, 1289-90 (11th Cir. 2001). Once the government
does so, the burden shifts to the defendant to establish that a connection between
the weapon and the offense was clearly improbable. Id. at 1289.
We need not decide whether the district court erred in applying the “clearly
improbable” standard of § 2D1.1 comment. (n.3) to § 2K2.1.2 Cf. United States v.
2
While we question whether Troupe adequately preserved this issue before the district
court, the government does not argue that our review is limited to plain error, and we need not
decide the appropriate standard of review based on our conclusion that the error, if any, was
harmless. See United States v. Lynn, 608 F.2d 132, 135 (5th Cir. 1979) (holding that it was
unnecessary to decide whether evidentiary objections were preserved adequately based on its
disposition of the issues); see also United States v. Dobbs, 11 F.3d 152, 154 n.4 (11th Cir. 1994)
(addressing an issue “as if it had been properly preserved” where there was a close question as to
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Drury, 396 F.3d 1303, 1314 (11th Cir.), cert. denied, 126 S.Ct. 336 (2005)
(declining to decide whether a jury instruction was erroneous because the error was
harmless). Because the district court also found that it would reach the same result
even if it did not apply the § 2D1.1 standard, any error in its application of that
standard would be harmless. See United States v. Williams, 456 F.3d 1353, 1360
(11th Cir. 2006), pet. for cert. filed, (Oct. 19, 2006) (No. 06-7352) (holding that a
guidelines miscalculation is harmless, and therefore does not warrant reversal, if
the district court would have imposed the same sentence without the error); see
also United States v. Scott, 441 F.3d 1322, 1330 (11th Cir. 2006) (commenting that
we would have held that an error was harmless if the district court had stated that
“it would reach the same sentence regardless of how the disputed § 2A6.1(b)(1)
issue was decided.”).
Turning to the district court’s findings of fact, we have held that “[t]he
credibility of a witness is in the province of the factfinder and this court will not
ordinarily review the factfinder’s determination of credibility.” United States v.
Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Moreover, we have held that a jury
can disbelieve a witness and infer that the opposite of his testimony is true, United
States v. Hasner, 340 F.3d 1261, 1272 (11th Cir. 2003), and need not fully accept
preservation of the issue for appeal).
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or fully reject a witnesses’s testimony, see United States v. McDonald, 620 F.2d
559, 565 (5th Cir. 1980) (approving a jury instruction which stated, “If you believe
that any witness has been so impeached, then it is your exclusive province to give
the testimony of that witness such credibility or weight, if any, as you may think it
deserves.”). Therefore, we cannot conclude that the district court clearly erred in
only partially crediting Troupe’s testimony.
In order to show that the district court clearly erred in its ultimate finding,
Troupe relies upon his version of the facts, contending that neither the drugs nor
the firearm belonged to him, he only unlawfully possessed the firearm for a few
moments, and he did not possess the drugs or commit the offense of drug
possession. However, the district court rejected Troupe’s testimony that the gun
did not belong to him and that he only possessed the firearm for a few moments.
Although the court agreed that Troupe’s brother brought the drugs into Troupe’s
car, it found that Troupe had knowledge of his brother’s activities before he saw
the drugs. Thus, Troupe left the house to get gas, probably knowing that drug
activities were involved, but in possession of a gun. The district court did not find
that Troupe possessed the drugs, but found Troupe accountable based on aiding
and abetting his brother’s possession and the proximity of the gun to the drugs.
Troupe does not, however, explain how, under the district court’s facts, the district
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court clearly erred in finding that he possessed the gun in connection with the drug
offense. Because Troupe has not established that these preliminary factual findings
were clearly erroneous and he offers no argument as to how, based on these facts,
the district court clearly erred in concluding that he possessed a firearm in
connection with a drug offense, we hold that Troupe has failed to establish clear
error. See Cunningham, 161 F.3d at 1344 (holding that the defendant abandoned
an issue on appeal by failing to offer any argument).
In light of the foregoing, Troupe’s sentence is
AFFIRMED.
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