[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 10, 2008
THOMAS K. KAHN
No. 07-12572
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00240-CR-J-32-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAREY LOUIS CHISHOLM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 10, 2008)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Carey Louis Chisholm appeals his convictions for possession of cocaine and
marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
and (b)(1)(D); and possession of a firearm in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1). After review, we affirm.
I. DISCUSSION
Ryan Vantassell, a narcotics detective with the Nassau County Sheriff’s
Office who was working on a multi-county drug trafficking task force, spotted
Chisholm driving a car with an inoperable tag light and initiated a traffic stop. As
Detective Vantassell approached Chisholm’s car, he saw Chisholm closing the
door of the glove box.
During a later search of the glove box, law enforcement officers found a
loaded revolver, a cigarette box filled with ammunition, a pill bottle containing
crack cocaine and a plastic shopping bag containing 47 one-and-a-half-inch blue
plastic baggies of powder cocaine and marijuana. Officers also searched Chisholm
and found in his pocket a sum of cash, a sandwich-sized plastic baggy containing
marijuana and one small blue plastic baggie.
After being given a Miranda warning, Chisholm told Officer J.S. Padilla of
the Jacksonville Sheriff’s Office that he knew the gun and drugs were in the glove
box, that he had possessed the gun for protection and that the drugs were for his
personal use.
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A grand jury charged Chisholm with: (1) possession of ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count I); (2)
possession of cocaine with intent to distribute, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(C) (Count II); (3) possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (Count III); and (4)
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count IV).
Prior to trial, Chisholm stipulated that the amounts of drugs found during the
searches included 6.6 grams of cocaine powder, .1 grams of cocaine base and 14.9
grams of marijuana. Chisholm also stipulated that he was a convicted felon.
During trial, Detective Vantassell testified without objection that, based on
his experience working narcotics cases, the drugs found in Chisolm’s glove box
were packaged for sale. Officer Padilla testified without objection that, given the
quantity of drugs found in Chisolm’s car, the drugs were not packaged in a manner
consistent with personal use.
At the close of the government’s case, Chisholm moved for a judgment of
acquittal, but the district court denied the motion. The district court also denied
Chisholm’s renewed motion for judgment of acquittal at the close of all the
evidence.
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The jury found Chisholm guilty on all counts. The jury specifically found
that Chisholm possessed a firearm in furtherance of the drug possession charges in
Counts II and III. The district court sentenced Chisholm to concurrent 33-month
sentences on Counts I through III and a consecutive 60-month sentence on Count
IV, the firearm conviction. Chisholm filed this appeal.
II. DISCUSSION
Chisholm argues that the district court erred by denying his motion for
judgment of acquittal on Counts II, III and IV.1 According to Chisholm, the
evidence did not show that he intended to distribute the cocaine and marijuana that
he possessed and that, in light of the lack of evidence to support his possession
charges, his firearm conviction cannot stand.2
We review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12
(11th Cir. 2006) (en banc). 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
1
On appeal, Chisholm does not challenge his conviction for possession of ammunition by
a convicted felon (Count I).
2
Chisholm does not dispute that he (1) knowingly possessed the cocaine and marijuana,
or (2) used or carried the firearm. The only issues on appeal are whether the government
presented sufficient evidence that Chisholm intended to distribute the cocaine and marijuana and
that Chisholm used or carried the firearm “in relation to” a drug trafficking crime.
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v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006), cert. denied, 127 S. Ct. 2096
(2007). “The evidence need not be inconsistent with every reasonable hypothesis
except guilt, and the jury is free to choose between or among the reasonable
conclusions to be drawn from the evidence presented at trial.” United States v.
Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). 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).
In order to sustain a conviction for possession of a controlled substance with
intent to distribute, “the government had to prove three elements: (1) knowledge;
(2) possession; and (3) intent to distribute.” Poole, 878 F.2d at 1391. “Intent to
distribute can be proven circumstantially from, among other things, the quantity of
cocaine and the existence of implements such as scales commonly used in
connection with the distribution of cocaine.” Id. at 1392.
To convict a defendant under § 924(c)(1), the government must demonstrate
that the defendant used or carried a firearm, during and in relation to a drug
trafficking crime. See 18 U.S.C. § 924(c)(1)(A).3 “The phrase ‘in relation to’
3
Possession with intent to distribute a controlled substance qualifies as a drug trafficking
crime for purposes of § 924(c)(1)(A). See 18 U.S.C. § 924(c)(2); United States v. Rivera, 889
F.2d 1029, 1030-31 (11th Cir. 1989).
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. . ., at a minimum, clarifies that the firearm must have some purpose or effect with
respect to the drug trafficking crime; its presence or involvement cannot be the
result of accident or coincidence.” Smith v. United States, 508 U.S. 223, 238, 113
S. Ct. 2050, 2058-59 (1993). “[T]he gun at least must facilitate, or have the
potential of facilitating, the drug trafficking offense.” Id. at 238, 113 S. Ct. at 2059
(internal punctuation omitted). A “conviction under section 924(c) does not
require either that the defendant be convicted of or charged with the predicate
offense.” United States v. Frye, 402 F.3d 1123, 1127 (11th Cir. 2005).
After reviewing the trial record, we conclude that the district court did not
err when it denied Chisholm’s motion for judgment of acquittal on the drug
possession charges contained in Counts II and III. The government presented
evidence that Chisholm kept the cocaine powder and some of the marijuana in 47
one-and-a half inch blue plastic baggies. Detective Vantassell and Officer Padilla
testified that the way Chisholm packaged the drugs indicated that they were for
sale and not for Chisholm’s personal use. Chisholm did not object to this
testimony and had the opportunity to cross-examine both witnesses. In addition to
the drugs found in the glove compartment, Chisholm also had a firearm on top of
the drugs and had in his pocket a sum of cash, an additional sandwich-sized baggie
of marijuana and a smaller blue baggie. Viewing the evidence in the light most
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favorable to the government, a reasonable trier of fact could find beyond a
reasonable doubt that Chisholm intended to distribute the cocaine and marijuana he
possessed.
The district court also did not err in denying Chisholm’s motion for a
judgment of acquittal as to the firearm charge in Count IV. Although § 924(c)
does not require that Chisholm be convicted of or charged with the drug trafficking
offense, we have already concluded that there was sufficient evidence to support
Chisholm’s convictions for possession with intent to distribute. Furthermore,
Detective Vantassell testified that the loaded firearm was found inside the glove
box on top of the small baggies of cocaine and marijuana. Chisholm admitted to
Officer Padilla that he kept the gun for protection. A reasonable trier of fact could
have inferred a nexus between the gun and the drug distribution based on the
loaded gun’s proximity to the drugs and to Chisholm. See United States v.
Thompson, 473 F.3d 1137, 1143-44 (11th Cir. 2006), cert. denied, 127 S. Ct. 2155
(2007) (concluding there was sufficient evidence of nexus based on gun’s
accessibility and proximity to drugs); United States v. Molina, 443 F.3d 824, 830
(11th Cir. 2006) (same). Viewing the evidence in the light most favorable to the
government, the evidence was sufficient for the jury to conclude that the firearm
had the potential to facilitate Chisholm’s distribution of the cocaine and marijuana
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and, thus, was used during and in relation to a drug trafficking offense.
AFFIRMED.
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