[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 18, 2007
No. 07-10619 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20265-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES FRANKLIN MCCOY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 18, 2007)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
James Franklin McCoy appeals his conviction and 264-month sentence for
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
and 18 U.S.C. § 924(e)(1). For the reasons set forth below, we affirm.
I. BACKGROUND
On April 24, 2006, approximately ten Miami police officers went to 415
NW 9th Street, Apartment 9 (“Apartment 9”) to execute a felony arrest warrant for
Andrea McWhorter, who was known to carry weapons and was a suspect in at least
3 murders. Miami Police Detective Wayne Tillman received an anonymous tip
that McWhorter had exited a compact beige car and entered Apartment 9. Before
the officers police knocked on the door, McCoy, who was known to the officers as
a felon, appeared in the doorway. As McCoy was moving out of the doorway,
Detective Suarez saw a chrome revolver lying on the floor in the apartment near
the couch and yelled “gun.” Around the time that McCoy opened the door to the
apartment, Tillman saw a beige car leaving at a high rate of speed, but he testified
that he did not try to stop the vehicle because Suarez had just yelled “gun.”
Police handcuffed McCoy and patted him down for weapons. During the
pat-down, police found keys to the apartment in McCoy’s pockets. The officers
testified that they entered the apartment to make sure that neither McWhorter nor
anyone else was inside. After the officers were inside, McCoy told an officer that
no one was inside the apartment. Once the officers cleared the apartment, they
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exited and obtained a search warrant. Pursuant to that search warrant, police
recovered the firearm along with crack cocaine, marijuana, and drug paraphernalia.
Before trial, McCoy moved to suppress the evidence that the officers
obtained from the pat-down and search. The magistrate judge recommended that
McCoy’s motion to suppress be denied. The magistrate found that, pursuant to
Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990), a
protective sweep was permissible because McCoy was lawfully arrested within
minutes of the search. The district court affirmed the report and denied McCoy’s
motion to suppress.
At trial, Tillman testified that McCoy was not a lessee of the apartment, and
the police did not find any of McCoy’s clothes in the apartment. Police did find,
however, a letter that was postmarked October 2005 and addressed to McCoy at
Apartment 9. Suarez also identified copies of Western Union wire transfer receipts
found in a kitchen drawer in which McCoy was listed as the transferor. The
Maintenance Manager for the building testified that McCoy lived at Apartment 9
for about a year and a half.
McCoy stipulated that he was a convicted felon and that the chrome revolver
found near the couch had traveled in interstate and foreign commerce. McCoy
testified that he lived with his mother and sister, but that McWhorter had allowed
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him to rest on the couch in Apartment 9 on the day of the arrest because he had
spent the previous night in the hospital. After resting for about forty-five minutes
to an hour, McCoy says he got up, opened the door, and found the police outside.
He claims, however, that he did not see a gun while he was in the apartment.
McCoy explained that the letter that was found inside Apartment 9 came from a
prisoner friend who used to live in the same building, and “he probably figured out
that . . . [McCoy] might get that letter from, from [McCoy’s friend].” According to
McCoy, police found the Western Union receipts in his truck where McCoy kept
them.
After the defense rested, McCoy failed to reassert his motion for a judgment
of acquittal and the jury found McCoy guilty of possession of a firearm by a
convicted felon.1 In the presentence investigation report (“PSI”), the probation
officer classified McCoy as an armed career criminal under 18 U.S.C. § 924(e).
Based on a total offense level of 34 and a criminal history category of VI, the
guideline imprisonment range was 262 to 327 months’ imprisonment. McCoy did
not object to the findings in the PSI.
1
In the five-count superceding indictment, McCoy was also charged with possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i) (Count II), and three
counts of possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1) (Counts
III, IV, V). The jury was unable to reach a verdict on Counts II-V, and the district court declared
a mistrial on those counts. After McCoy was sentenced for possession of a firearm by a convicted
felon, the government dismissed Counts II-V.
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At the sentencing hearing, McCoy objected to being classified as an armed
career criminal. He admitted, however, that he had been “convicted of [1] battery
on a law enforcement officer, resisting with violence, [2] fleeing and attempting to
elude during a high-speed chase[,] and [3] aggravated assault on a police officer.”
The district court determined that McCoy was an armed career criminal and
imposed a sentence of 264 months’ imprisonment.
On appeal, McCoy argues that: (1) the district court erred in denying his
motion to suppress; (2) the evidence was insufficient to support his conviction; and
(3) the district court erred in classifying him as an armed career criminal.
II. DISCUSSION
A. Suppression of the Firearm
McCoy first argues that the district court erred by denying his motion to
suppress the firearm because exigent circumstances did not exist to justify the
officers’ protective sweep of Apartment 9. In reviewing a district court’s denial of
a motion to suppress, we review findings of fact for clear error and the application
of law to those facts de novo. United States v. Acosta, 363 F.3d 1141, 1144 (11th
Cir. 2004). We construe the facts in the light most favorable to the party prevailing
in the district court, United States v. Hromada, 49 F.3d 685, 688 (11th Cir. 1995),
and we may affirm a district court decision on any ground supported by the record,
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Bircoll v. Miami-Dade County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007). While
“[t]he warrantless search of a home is presumptively unreasonable,” United States
v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (internal quotation marks omitted),
“[t]he exigent circumstances exception to the warrant requirement recognizes a
warrantless entry by criminal law enforcement officials may be legal when there is
compelling need for official action and no time to secure a warrant.” Bashir v.
Rockdale County, 445 F.3d 1323, 1328 (11th Cir. 2006) (internal quotation marks
omitted). Probable cause must exist, however, even where exigent circumstances
are present, id., and the government bears the burden of proving exigent
circumstances, United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002).
The exigent circumstances exception only applies if the police reasonably
believed that an emergency situation justified warrantless action. Id. at 1338.
Examples of exigent circumstances include: “danger of flight or escape, loss or
destruction of evidence, risk of harm to the public or the police, mobility of a
vehicle, and hot pursuit.” Bashir, 445 F.3d at 1328 (internal quotation marks
omitted).
We hold that exigent circumstances justified the warrantless search of
Apartment 9 because the risk of harm that the officers reasonably perceived
presented a compelling need for immediate action. The officers believed that
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McWhorter was inside the apartment when Suarez noticed the chrome revolver.
The officers knew, moreover, that McWhorter was known to carry weapons, was a
suspect in at least three murders, and was believed to be inside the apartment.
Although Tillman acknowledged that he saw a beige vehicle leaving the scene at a
high-rate of speed around the same time that Suarez yelled “gun,” Tillman testified
that his attention was focused on the potentially dangerous situation at the
apartment. The district court did not err, therefore, in denying McCoy’s motion to
suppress the firearm.
We reject McCoy’s argument based on United States v. Colbert, 76 F.3d 773
(6th Cir. 1996), because the circumstances in Colbert are not analogous to those
that the officers faced here. Colbert was arrested while leaving his girlfriend’s
apartment. Even though a shotgun was resting in plain view inside the apartment
when the officers arrested Colbert, the Sixth Circuit determined that the protective
sweep of the apartment was unreasonable because nothing suggested that anyone
might have been in the apartment. Id. Here, however, the officers’ belief
concerning the possible presence of a dangerous person in Apartment 9 was
reasonable.
B. Suppression of the Keys
McCoy next argues that the keys to Apartment 9 must be suppressed
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because the officers discovered them during a pat-down incident to an unlawful
arrest. “[A] law enforcement officer’s reasonable suspicion that a person may be
involved in criminal activity permits the officer to stop the person for a brief time
and take additional steps to investigate further.” Hiibel v. Sixth Judicial Dist.
Court of Nev., Humboldt County, 542 U.S. 177, 185, 188, 124 S. Ct. 2451, 2458,
159 L. Ed. 2d 292 (2004). “Once an officer has legitimately stopped an individual,
the officer can frisk the individual so long as ‘a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
in danger.’” United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002)
(quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889
(1968)).
Whether an officer has reasonable suspicion is a question of law that we
review de novo. Evans v. Stephens, 407 F.3d 1272, 1280 (11th Cir. 2005) (en
banc). We consider the question in light of the totality of the circumstances from
the perspective of a reasonable officer. Hicks v. Moore, 422 F.3d 1246, 1252 (11th
Cir. 2005). “While ‘reasonable suspicion’ is a less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective
justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.
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Ct. 673, 675-76, 145 L. Ed. 2d 570 (2000). The officer must “be able to point to
specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at
1880. Reasonable suspicion does not, however, “require officers to catch the
suspect in a crime.” Acosta, 363 F.3d at 1145.
Because the officers knew that McCoy was a convicted felon, specific and
articulable facts supported their reasonable belief upon seeing the firearm in the
apartment that McCoy had committed or was committing the crime of possession
of a firearm by a convicted felon. Accordingly, the officers had the requisite
suspicion of criminal activity when they detained McCoy and conducted the pat-
down. The district court did not err, therefore, by denying McCoy’s motion to
suppress the keys.
C. Sufficiency of the Evidence
McCoy next argues that the evidence was not sufficient to prove that he
knowingly possessed the firearm. We review de novo whether there is sufficient
evidence to support a conviction. United States v. Charles, 313 F.3d 1278, 1284
(11th Cir. 2002) (per curiam). In considering the sufficiency of the evidence, we
view all of the evidence “in the light most favorable to the government, with all
inferences and credibility choices drawn in the government’s favor.” United States
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v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006), cert. denied, 127 S. Ct. 2096
(2007). We “cannot reverse a conviction for insufficiency of the evidence unless
. . . we conclude that no reasonable jury could find proof beyond a reasonable
doubt.” United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990). When,
however, a defendant fails to renew his motion for judgment of acquittal after all of
the evidence has been presented, reversal of the conviction is appropriate only to
prevent “a manifest miscarriage of justice.” United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002).
“To establish a violation of Title 18, United States Code Section 922(g)(1),
the government must prove three elements: (i) that the defendant has been
convicted of a crime punishable by imprisonment for a term exceeding one year,
(ii) that the defendant knowingly possessed a firearm or ammunition, and (iii) such
firearm or ammunition was in or affected interstate commerce.” United States v.
Funches, 135 F.3d 1405, 1406-07 (11th Cir. 1998). Because McCoy stipulated to
the first and third elements, the only issue is whether McCoy knowingly possessed
the firearm.
Possession, in the context of § 922(g)(1), “may be proven either by showing
that the defendant actually possessed the firearm, or by showing that he
constructively possessed the firearm.” United States v. Gonzalez, 71 F.3d 819, 834
10
(11th Cir. 1996). The government may prove constructive possession by showing
that the defendant had unrestricted access over the premises where the contraband
was located. See United States v. Harris, 20 F.3d 445, 454 (11th Cir. 1994),
modified on other grounds, United States v. Toler, 144 F.3d 1423 (11th Cir. 1998).
Furthermore, at least where some corroborative evidence of guilt exists for the
charged offense, “a statement by a defendant, if disbelieved by the jury, may be
considered as substantive evidence of the defendant’s guilt.” United States v.
Brown, 53 F.3d 312, 314 (11th Cir. 1995). In other words, “when a defendant
chooses to testify, he runs the risk that if disbelieved the jury might conclude the
opposite of his testimony is true.” Id. (internal quotation marks omitted).
Viewing the evidence in the light most favorable to the government, the
evidence was sufficient to support the jury’s conclusion that McCoy constructively
possessed the firearm. McCoy admitted that he was alone in the apartment, and the
firearm was within his ready access near the couch on which he was resting.
Although McCoy testified that he did not know about the gun, the jury was free to
disbelieve him and consider his testimony as substantive evidence of his guilt. The
jury could have reasonably inferred that McCoy was more than merely present in
the apartment based on (1) the apartment keys found in his pocket; (2) the
apartment manager’s testimony that McCoy lived in the apartment; and (3) the
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letter addressed to McCoy found in the kitchen. Furthermore, the jury could have
reasonably inferred from the keys and his unaccompanied presence in the
apartment that McCoy had unrestricted access to the apartment. Accordingly,
because a reasonable jury could have found beyond a reasonable doubt that McCoy
violated § 922(g), no miscarriage of justice occurred.
D. Armed Career Criminal Determination
McCoy lastly argues that the district court violated his Fifth and Sixth
Amendment rights when it found that he was an armed career criminal and
imposed a sentence beyond the 10-year statutory maximum based on the court’s
determinations concerning his prior convictions.2 McCoy acknowledges that we
rejected an argument similar to his in United States v. Greer, 440 F.3d 1267 (11th
Cir. 2006). He raises the argument, however, to preserve the issue in the event the
Supreme Court overrules Almendarez-Torres v. United States, 523 U.S. 224, 118
S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
We held in Greer that district judges may determine whether prior
2
In support of his argument, McCoy cites the Supreme Court’s recent decision
in Cunningham v. California, — U.S. —, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007).
In Cunningham, however, the Supreme Court reiterated the principle that “the Federal
Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge
to impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.” Id. at —, 127 S. Ct. at
860 (emphasis added). Accordingly, Cunningham does not affect the outcome here
because it preserved the Supreme Court’s exception for prior convictions.
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convictions qualify as violent felonies under the Armed Career Criminal Act.
Greer, 440 F.3d at 1275. In Almendarez-Torres, moreover, the Supreme Court
held that a prior conviction is not a fact that must be admitted by a defendant or
found by a jury beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 258,
118 S. Ct. at 1238. Furthermore, McCoy actually admitted at the sentencing
hearing to the convictions that qualified him as an armed career criminal.
Accordingly, the district court did not err by classifying McCoy as an armed career
criminal.
III. CONCLUSION
For the reasons set forth above, we conclude that the evidence was sufficient
to support McCoy’s conviction for possession of a firearm by a convicted felon,
and that the district court did not err by denying McCoy’s motion to suppress and
classifying McCoy as an armed career criminal. Accordingly, we affirm.
AFFIRMED.
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