[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10891 March 26, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00054-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR HOOPER, III,
a.k.a. Peanut,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 26, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Edgar Hooper appeals his conviction for use of a firearm during an
attempted robbery. 18 U.S.C. §§ 924(c)(1)(A), 2113(a). Hooper argues that the
evidence was insufficient to prove he “used” a firearm during the crime. We
affirm.
A person violates federal law when “during and in relation to any crime of
violence” he “uses or carries a firearm[] or . . . , in furtherance of any such crime,
possesses a firearm . . . .” 18 U.S.C. § 924(c)(1)(A). To sustain a conviction for
the use or possession of a firearm, “the government must have sufficient evidence
on both the ‘uses and carries’ prong and the ‘during and in relation to’ prong.”
United States v. Timmons, 283 F.3d 1246, 1250 (11th Cir. 2002) (interpreting
section 924(c)(1)(A)). This test requires the government to prove “either that [the
defendant] used or carried the firearm during and in relation to the . . . crime, not
both.” Id.
At trial, there was a conflict in testimony about Hooper’s use of a firearm.
Lieutenant Richard Edwards testified that he watched Hooper adjust a face mask
and enter the Merchant & Southern Bank in Ocala, Florida, with a gun in his hand.
When Edwards yelled, “[f]reeze, police,” and drew his service revolver, Hooper
ran out of the bank. Two bank tellers, Amanda Carrier and Susan Berry, testified
that they also observed the masked robber with a gun in his hand. Edwards
pursued Hooper, watched Hooper discard his mask and gun, and observed
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Hooper’s face when he twice glanced back at Edwards. Hooper admitted at trial
that he entered the bank with a gun and the intent to rob the bank, but testified,
contrary to Edwards, that the gun remained in his pocket.
The trial resolved this conflict. The jury considered the conflicts in the
testimony and, by returning a verdict against Hooper, found Edwards more
credible. See United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006)
(“The jury gets to make any credibility choices, and we will assume that they made
them all in the way that supports the verdict.” (citing United States v. Kelly, 888
F.2d 732, 740 (11th Cir. 1989)). The jury was entitled to find, based on Edwards’s
testimony, that Hooper used a firearm in violation of Section 924(c)(1)(A).
Even if we were to credit Hooper’s testimony, we would still conclude that
the record supports Hooper’s conviction. To violate section 924(c)(1)(A) under
the “carry” element, an individual need only possess a gun. See Timmons, 283
F.3d at 1250 (applying the plain language interpretation used in Muscarello v.
U.S., 524 U.S. 125, 127, 118 S. Ct. 1911, 1914 (1998), to the word “carry”).
Hooper’s testimony established that he “carried” a firearm when he concealed it in
his pocket and possessed it with the intent to rob the bank.
Hooper’s conviction for using or carrying a firearm is AFFIRMED.
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