[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 26, 2008
No. 07-10709 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 06-14030-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
AUGUSTIN OLIVIER,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 26, 2008)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Augustin Olivier appeals his convictions and 151-month sentences for
(1) conspiracy to possess, with the intent to distribute, 50 grams or more of a
mixture or substance containing a detectable amount of cocaine base, and a
mixture or substance containing a detectable amount of cocaine hydrochloride, in
violation of 21 U.S.C. § 846; and (2) possession, with intent to distribute, 50 grams
or more of a mixture or substance containing a detectable amount of cocaine base,
in violation of 21 U.S.C. § 841(a)(1).
On appeal, Olivier makes three arguments. First, he argues that the district
court erred by not sua sponte severing his and a codefendant’s trials, pursuant to
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),
when the government impeached the codefendant with her post-arrest statements,
which also implicated him in the crime. Second, Olivier maintains that the
evidence was insufficient to support his conviction. Finally, Oliver asserts that the
district court clearly erred in applying a two-level enhancement, pursuant to
U.S.S.G. § 2D1.1(b)(1), because he did not possess the firearm discovered by law
enforcement officers in connection with the crime.
I. Severance
Ordinarily, we review a district court’s Bruton rulings for an abuse of
discretion, and subject “improperly admitted Bruton evidence to review for
harmlessness beyond a reasonable doubt.” United States v. Turner, 474 F.3d 1265,
2
1275 (11th Cir. 2007), pet. for cert. filed, (U.S. June 5, 2007) (No. 07-5686).
However, if a defendant fails to raise a contemporaneous Bruton objection, the
review is for plain error. See id. For us to correct an error under plain error
review, there must be “(1) error, (2) that is plain and (3) that affects substantial
rights. If all three conditions are met, [we] may then exercise . . . discretion to
notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1276.
In Bruton, the Supreme Court held that a defendant’s Sixth Amendment
right of confrontation was violated by the admission of a codefendant’s
“powerfully incriminating extrajudicial statement,” and a district court’s
instruction that the jury only consider the confession against the codefendant does
not cure the violation. Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. However,
in Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the
Supreme Court held that, as long as the codefendant is subject to cross-
examination, there is no Confrontation Clause issue. Nelson, 402 U.S. at 627, 629-
30, 91 S.Ct. at 1726-27; see also United States v. Arias-Izquierdo, 449 F.3d 1168,
1184-85 (11th Cir. 2006), cert. denied, 127 S.Ct. 521 (2006); United States v.
Clemons, 32 F.3d 1504, 1510-11 (11th Cir. 1994).
In Arias-Izquierdo, the district court denied a defendant’s motion for
3
severance following a law enforcement officer’s testimony that a codefendant, in
post-arrest statements, informed officers that he had planned the crime and
recruited “the other five.” Arias-Izquierdo, 449 F.3d at 1184. We held that the
district court did not err in denying the motion because the codefendant testified at
trial and was available for cross-examination. Id. at 1185. Likewise, in this case
the codefendant was available for cross-examination, and thus, the district court
did not plainly err by not severing Olivier’s and a codefendant’s trials.
II. Sufficiency of the Evidence
“We review the sufficiency of the evidence de novo, viewing the evidence in
the light most favorable to the government.” United States v. Garcia, 405 F.3d
1260, 1269 (11th Cir. 2005). A defendant’s conviction must be affirmed unless a
jury could not, under a reasonable construction of the evidence, have found him
guilty beyond a reasonable doubt. Id. “All reasonable inferences and credibility
choices must be made in favor of the government and the jury’s verdict.” Id.
“When a defendant does not move the district court for a judgment of acquittal at
the close of the evidence, we may reverse the conviction only to prevent a manifest
miscarriage of justice.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002). “This standard requires the appellate court to find that the evidence on a
key element of the offense is so tenuous that a conviction would be shocking.” Id.
4
“To sustain a conviction for conspiracy to possess cocaine with intent to
distribute, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,
1333 (11th Cir. 2005), cert. denied, 547 U.S. 1047, 126 S.Ct. 1635 (2006). The
agreement forming the basis of the conspiracy can be proved “by circumstantial
evidence, through ‘inferences from the conduct of the alleged participants or from
circumstantial evidence of a scheme.’” United States v. Obregon, 893 F.2d 1307,
1311 (11th Cir. 1990) (citation omitted). A jury may infer a defendant’s
participation in a conspiracy from the circumstance. Hernandez, 433 F.3d at 1333.
However, mere presence is insufficient to support a conviction for conspiracy, but
the jury is permitted to consider presence as a probative factor in determining
whether the defendant knowingly and intentionally participated in a criminal
scheme. Id.
“To sustain a conviction for possession of a controlled substance with intent
to distribute, the government must show that a defendant knowingly possessed the
controlled substance with the intent to distribute it,” and possession may be proved
through either actual or constructive possession. Id. “Constructive possession
exists when a defendant has ownership, dominion, or control over an object itself
5
or dominion or control over the premises or the vehicle in which the object is
concealed. Intent to distribute may be inferred from the amount of [the drug]
involved.” Id. (internal citation omitted) (alteration in original).
Based on this record, we find sufficient evidence to support Olivier’s
convictions. Although Olivier denied any involvement, the jury was entitled to
disbelieve him and sufficient evidence supported the conclusion that he was a
knowing and voluntary participant in supplying an undercover informant a total of
111.1 grams of crack cocaine.
III. U.S.S.G. § 2D1.1(b)(1)
We review a district court’s factual findings for clear error, and the
application of the guidelines to those facts de novo. United States v. Pham, 463
F.3d 1239, 1245 (11th Cir. 2006). A factual finding is clearly erroneous when we
are “left with a definite and firm conviction that a mistake has been committed”
after we review all of the evidence. United States v. Rodriguez-Lopez, 363 F.3d
1134, 1137 (11th Cir. 2004).
The guidelines call for a two-level enchantment “[i]f a dangerous weapon
(including a firearm) was possessed” during a drug offense. U.S.S.G.
§ 2D1.1(b)(1). Application Note 3 of the provision provides that “[t]he adjustment
should be applied if the weapon was present, unless it is clearly improbable that the
6
weapon was connected with the offense. For example, the enhancement would not
be applied if the defendant, arrested at his residence, had an unloaded hunting rifle
in the closet.” Id. § 2D1.1, cmt. (n.3). The government has the burden under
§ 2D1.1(b)(1) to demonstrate the proximity of the firearm to the site of the charged
offense by a preponderance of the evidence. United States v. Hall, 46 F.3d 62, 63
(11th Cir. 1995). If the government is successful, “the evidentiary burden shifts to
the defendant to show that a connection between the firearm and the offense is
clearly improbable.” Id.
In Hall, the defendant pled guilty to conspiracy to commit a drug offense,
and the district court increased his level by two, pursuant to § 2D1.1(b)(1), based
on the fact that law enforcement officers found “a set of scales, a ziplock back with
cocaine residue, a purse containing $12,000, and a .357 Smith & Wesson handgun
placed in a dresser drawer next to an undetermined amount of cash” in his home.
Id. at 62-63. Additionally, there was no evidence, other than the discovery of the
handgun, suggesting that it actually had been used in the commission of the
offense. Id. at 63. We affirmed, holding that the district court’s finding that the
§ 2D1.1(b)(1) enhancement was applicable was not clearly erroneous because the
weapon was found in the home, where part of the conspiracy occurred, was in
close proximity to the drug-related, and the defendant presented no evidence to
7
show it was clearly improbable that the firearm was not connected to the crime.
See id. at 64.
Here, the district court did not clearly err in applying a two-level
enhancement for possession of a dangerous weapon because the firearm was found
at the residence of the charged offense, a codefendant identified the weapon as
Olivier’s and Olivier did not establish that the connection between the weapon and
offense was “clearly improbable.”
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error.
AFFIRMED.
8