[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14766 OCT 17, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-20400-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR JUNIOR GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 17, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Arthur Junior Green appeals from his convictions and 220-month sentence
for possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1); possession with intent to distribute five grams or more of cocaine base
(“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); and possession
of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). On appeal, Green argues that: (1) sufficient evidence did not
support his convictions; (2) the district court erred in admitting expert testimony
regarding the gross weight of the drugs and packaging seized by the police; (3) the
district court erred in refusing to instruct the jury that the government needed to
prove that he willfully violated the law in regard to his conviction for possession
with intent to distribute cocaine base; (4) the district court plainly erred in
sentencing him as a career offender; and (5) the district court’s judgment contains a
clerical error regarding his sentence on count one, necessitating a limited remand
to correct the error. After thorough review, we affirm in part, vacate in part as to
the clerical error in Green’s sentence, and remand with instructions.
We review the sufficiency of the evidence de novo, viewing the evidence in
the light most favorable to the government and accepting all reasonable inferences
in favor of the verdict. United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir.
2005). If a reasonable trier of fact could find that evidence established guilt
beyond a reasonable doubt, the evidence is sufficient to support a conviction even
if evidence might also support a defendant’s theory of innocence. United States v.
Tinoco, 304 F.3d 1088, 1122 (11th Cir. 2002).
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“We review cases dealing with discovery violations under Fed. R. Crim. P.
16 using an abuse of discretion standard.” United States v. Hastamorir, 881 F.2d
1551, 1559 (11th Cir. 1989). A Rule 16 violation “is reversible error only when it
violates a defendant’s substantial rights.” United States v. Camargo-Vergara, 57
F.3d 993, 998 (11th Cir. 1995). “Substantial prejudice exists when a defendant is
unduly surprised and lacks an adequate opportunity to prepare a defense, or if the
mistake substantially influences the jury.” Id. at 998-99. We also review a district
court’s refusal to give a requested jury instruction for abuse of discretion. United
States v. Palma, 511 F.3d 1311, 1314-15 (11th Cir. 2008). “We will find
reversible error only if (1) the requested instruction correctly stated the law; (2) the
actual charge to the jury did not substantially cover the proposed instruction; and
(3) the failure to give the instruction substantially impaired the defendant’s ability
to present an effective defense.” Id. at 1315 (quotations omitted).
“A sentencing issue not raised in the district court is reviewed for plain
error.” United States v. Richardson, 166 F.3d 1360, 1361 (11th Cir. 1999). Under
the plain error standard, we will correct an error only if there is: (1) error; (2) that
is plain or obvious; (3) that affects the defendant’s substantial rights; and (4) that
seriously affects the fairness, integrity, or public reputation of a judicial
proceeding. United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006). An
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error is plain or obvious only if it is “clear under current law.” United States v.
Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (quoting United States v. Olano,
507 U.S. 725, 734 (1993)). An error is not clear under current law if no binding
decisions from this Court or the Supreme Court in materially similar cases resolve
the issue, and other circuits are split on the issue. Id.
First, we find no merit to Green’s contention that sufficient evidence did not
support his convictions. Possession with intent to distribute crack cocaine under
21 U.S.C. § 841(a)(1) is proven by evidence showing a defendant’s (1) knowing or
intentional (2) possession of a controlled substance (3) with intent to distribute that
substance. 21 U.S.C. § 841(a)(1). “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.” United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.
1989). Other relevant circumstances include the defendant’s possession of a
firearm, a large amount of cash, or an implement, like a razor blade, used to cut up
drugs. United States v. Marszalkowski, 669 F.2d 655, 662 (11th Cir. 1982);
United States v. Wilson, 183 F.3d 1291, 1299 (11th Cir. 1999). In addition, a
defendant’s denial of guilt in his trial testimony, “if disbelieved by the jury, may be
considered as substantive evidence of the defendant’s guilt.” United States v.
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Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis in original). In such a case,
where some corroborative evidence exists for the charged offense, the defendant’s
testimony may establish the elements of the offense. Id. at 314-15.
Here, sufficient evidence supported Green’s conviction for possession with
intent to distribute cocaine base. As an initial matter, Green does not challenge the
sufficiency of the evidence with regard to his knowing possession of crack cocaine.
Direct and circumstantial evidence proved the remaining element of the offense --
intent to distribute -- by showing that Green spontaneously admitted to a federal
agent that he was a drug dealer, he made multiple statements regarding the quantity
of the crack cocaine seized, police seized from his pocket numerous baggies filled
with individual crack cocaine rocks, a gun was found in his vehicle, and the jury
was entitled to reject his testimony that he was not a drug dealer.
We likewise conclude that sufficient evidence supported his remaining
convictions. A 18 U.S.C. § 922(g)(1) conviction requires evidence to show that:
(1) the defendant knowingly possessed a firearm; (2) the defendant was previously
convicted of an offense punishable by a term of imprisonment exceeding one year;
and (3) the firearm was in or affecting interstate commerce. Palma, 511 F.3d at
1315. A 18 U.S.C. § 924(c) conviction requires evidence to show that the
defendant: “(1) knowingly (2) possessed a firearm (3) in furtherance of any drug
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trafficking crime for which he could be prosecuted in a court of the United States.”
United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008).
The first element under both §§ 922(g)(1) and 924(c) -- knowing possession
of a firearm -- may be proved by evidence of either actual or constructive
possession. See United States v. Pedro, 999 F.2d 497, 500 (11th Cir. 1993). A
defendant has construction possession if he has “ownership, dominion, or control”
over the firearm itself, or the vehicle in which the firearm is located. United States
v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quotation omitted). In Wright,
we found sufficient evidence to support knowing possession where: (1) police
found the firearm in the defendant’s vehicle; (2) the firearm was located under the
seat in which the defendant was sitting; (3) the defendant resisted arrest; and (4)
the defendant made a vague threat to the police during his arrest. Id. at 1273-74.
For purposes of §§ 922(g)(1) and 924(c), a firearm includes “any weapon . .
. which will or is designed to or may readily be converted to expel a projectile by
the action of an explosive.” 18 U.S.C. § 921(a)(3)(A). We have held that a
firearm met the statutory definition where the evidence included: (1) the actual
firearm; and (2) a witness testified that the firearm was a “Winchester blue 12
gauge shotgun.” United States v. Adams, 137 F.3d 1298, 1300 n.2 (11th Cir.
1998). The government need not to prove that the firearm is operable. Id. at 1300.
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The “in furtherance” element of a § 924(c) offense requires proof of a nexus
between the firearm and the drug trafficking offense. United States v. Molina, 443
F.3d 824, 829 (11th Cir. 2006). Factors relevant to the nexus between the firearm
and a drug crime include: (1) the accessibility of the firearm to the defendant;
(2) the proximity of the firearm to the drugs or drug profits; (3) the status of the
possession (legal or illegal); and (4) the circumstances under which the gun was
found. United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). A jury
may infer that the purpose of a firearm located near drugs was to provide defense
or deterrence in furtherance of a defendant’s drug trafficking activity. United
States v. Miranda, 425 F.3d 953, 962 (11th Cir. 2005).
The evidence here demonstrated each of the elements Green now contests.
As for his knowing possession of the gun found in his vehicle under both §§ 922
and 924, there was evidence that Green purchased the vehicle in which the gun was
found over a week before his arrest, he was driving the vehicle before the gun was
found, and the gun was found under the driver’s seat, which was readily accessible
to him. At a minimum, this evidence showed that Green constructively possessed
the firearm because he had dominion and control over the vehicle in which it was
found. Moreover, Green testified that he was unaware of the gun and that the
police placed it in his vehicle, and the jury was entitled to believe the opposite.
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The evidence further demonstrated that the gun met the statutory definition
of a firearm found in 18 U.S.C. § 921(a)(3). The gun was admitted into evidence,
an expert testified that it was a Smith & Wesson pistol designed to expel a
projectile by the action of an explosive, and it did not appear to be counterfeit. The
jury was free to credit this testimony and find that the gun was a firearm under the
statute, despite Green’s theory that the gun may have been counterfeit.
The evidence also established that, under § 924(c), Green possessed the
firearm “in furtherance” of a drug trafficking crime: (1) the gun was found in his
vehicle, under the driver’s seat; (2) he was driving the vehicle; (3) he was carrying
a bag of individually packaged crack cocaine rocks on him; and (4) he admitted to
dealing drugs and said it was a dangerous profession. And, as discussed above,
evidence proved that Green committed a drug trafficking crime for the purposes of
his § 924(c) conviction. Because he does not challenge any remaining elements of
the firearm offenses, sufficient evidence supported these convictions.
Second, we are unpersuaded by Green’s claim that the district court erred in
admitting expert testimony regarding the gross weight of the drugs and packaging
seized by the police. Rule 16 provides that the government must disclose to the
defendant, upon request, a written summary of any expected expert testimony.
Fed. R. Crim. P. 16(a)(1)(G). But even assuming, arguendo, that the government’s
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mid-trial disclosure of the expert report violated Rule 16, the record does not
indicate that Green was substantially prejudiced.
According to the record, Green’s only problem with the expert testimony
was that it countered one of his lines of cross examination and supported a federal
agent’s testimony. At trial the jury heard testimony regarding three different
estimates of the weight of the drugs seized from Green: (1) 21 grams, which was
Green’s own estimate of the weight, according to Agent Rathel, or “it’s not going
to be 28,” according to Detective Bello; (2) 9.7 grams, which was the net weight of
a sample of the drugs, according to the expert; and (3) 27.8, which was the gross
weight of the drugs and baggies, according to the expert. The expert testimony
simply dispelled any confusion between the 9.7 grams and 21 grams -- which were
based on different measurements -- by explaining how the expert arrived at the 9.7
gram figure, without any regard to her testimony regarding the gross weight of the
drugs and baggies, the 27.8 gram figure. Because defense counsel was on notice
that an expert would testify regarding the 9.7 gram figure and how she came up
with that figure, the additional testimony regarding the corrected 27.8 gram figure
did not prejudice Green by impairing his counsel’s ability to formulate a defense
strategy. The district court therefore did not abuse its discretion in admitting the
disputed expert testimony.
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Third, we reject Green’s contention that the district court erred in refusing to
instruct the jury that the government needed to prove that he “willfully” violated
the law to establish possession with intent to distribute cocaine base. As we note
above, the elements of a § 841(a)(1) offense are (1) knowing or intentional (2)
possession of a controlled substance (3) with intent to distribute that substance. 21
U.S.C. § 841(a)(1). Based on this statutory language, we have long required the
government to prove “beyond a reasonable doubt that [a defendant] knowingly
possessed [a controlled substance], either actually or constructively, and that he
intended to distribute it,” United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th
Cir. 1985) (en banc) (citing United States v. Littrell, 574 F.2d 828, 835 (5th Cir.
1978)) -- without imposing any “willfulness” element into the statute. This makes
sense, because the statutory language makes no reference to willfulness, nor to an
intent to violate the law, as a mens rea requirement. See 21 U.S.C. § 841(a)(1) (“it
shall be unlawful for any person knowingly or intentionally . . . to . . . possess with
intent to . . . distribute . . . a controlled substance.”).
Accordingly, under the plain language of § 841(a)(1), a defendant must
knowingly or intentionally possess with intent to distribute a controlled substance.
Green does not identify any binding case law holding that willfulness -- defined as
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a specific intent to disobey the law -- is an element of a § 841(a)(1) crime.1
Consistent with the statutory language and case law, the district court rejected
Green’s proposed instruction and instead instructed the jury that a conviction on
count two required proof that Green “knowingly and intentionally” possessed with
intent to distribute cocaine base. It then correctly defined a knowing and
intentional act as one that was committed voluntarily and purposefully, and not by
mistake or accident. The district court therefore did not abuse its discretion in
instructing the jury.
Fourth, we conclude that the district court did not plainly err in sentencing
Green as a career offender. A defendant qualifies as a career offender, under
U.S.S.G. § 4B1.1, if: (1) he was at least eighteen years old at the time he
committed the instant offense; (2) the instant offense is a felony that is either a
crime or violence or a drug offense; and (3) he has at least two prior felony
1
Indeed, our prior precedent has long held that a § 841(a)(1) conviction requires
evidence that a defendant “knowingly” or “intentionally” possess a controlled substance with
intent to distribute, merely tracking the language of the statute. In Cruz-Valdez, our en banc
court held that the government must prove that a defendant “knowingly possessed” a controlled
substance. 773 F.2d at 1544; accord United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir.
1988). Similarly, in Cauchon v. United States, 824 F.2d 908, 912 (11th Cir. 1987), we held that
“there must have been sufficient evidence for a reasonable juror to find that appellant (1)
knowingly or intentionally (2) manufactured MDA.” (emphasis in original). To the extent that
United States v. Anderson, 289 F.3d 1321 (11th Cir. 2002), is read to say that willfulness is a
required element of § 841(a)(1) -- and it is not at all clear to us that Anderson holds that
willfulness is a required element -- we are bound by earlier case precedent. See United States v.
Levy, 379 F.3d 1241, 1245 (11th Cir. 2004) (“where there is conflicting prior panel precedent,
we follow the first in time”).
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convictions of either a crime of violence or a drug offense. U.S.S.G. § 4B1.1(a).
A “crime of violence” means any federal or state offense punishable by
imprisonment in excess of one year, that:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). To determine whether a crime is a “crime of violence,” we
use a categorical approach, “consider[ing] the offense as defined by the law, rather
than considering the facts of the specific violation.” United States v. Archer, 531
F.3d 1347, 1350 (11th Cir. 2008).
Because we have observed that the definition of “crime of violence” from §
4B1.2 is nearly the same as the ACCA’s definition of “violent felony,” id. at 1350
n.1, the Supreme Court’s decision in Begay v. United States, 128 S.Ct. 1581
(2008), interpreting the “violent felony” provision, is instructive in the career
offender context. In Begay, the Court determined that violent felonies included
crimes that “present[ed] a serious potential risk of physical injury,” only to the
extent that such crimes were “roughly similar, in kind as well as in degree of risk
posed,” to the enumerated crimes -- burglary, arson, extortion, and use of
explosives. Id. at 1585. The Court noted that “[t]he listed crimes all typically
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involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 1586. The Court
then applied that standard to felony driving under the influence (“DUI”) and held
that that crime did not qualify as a violent felony. Id. at 1587. It observed that
statutes forbidding driving under the influence “typically do not insist on
purposeful, violent, and aggressive conduct,” and rather, are comparable to strict
liability crimes. Id. at 1586. The Court recognized that although a person might
drink on purpose, the crime of felony DUI did not require purposeful or deliberate
conduct, and instead, could involve mere negligence or recklessness. Id. at 1587.
Green was convicted of throwing a deadly missile, in violation of a Florida
law creating a felony if a person “wantonly or maliciously . . . throws any missile
or hurls or projects a stone or other hard substance which would produce death or
great bodily harm,” at a building, vehicle, train, boat, or aircraft, occupied or
unoccupied. Fla. Stat. § 790.19. The intent element is defined as follows:
‘Wantonly’ means consciously and intentionally, with reckless
indifference to consequences and with the knowledge that damage is
likely to be done to some person.
‘Maliciously’ means wrongfully, intentionally, without legal
justification or excuse, and with the knowledge that injury or damage
will or may be caused to another person or the property of another
person.
State v. Kettell, 980 So.2d 1061, 1067 (Fla. 2008).
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Based on these definitions, the Florida crime of throwing a deadly missile
plainly passes the threshold test of the second definition of a crime of violence,
under § 4B1.2(a)(2), because it requires that the offender’s conduct present a
serious potential risk of physical injury to another. Moreover, the crime arguably
qualifies as a crime of violence because it is roughly similar to the crimes listed in
§ 4B1.2(a)(2) in that it involves purposeful and deliberate conduct aimed at
property where persons might be located and thereby injured. Although Florida
law references reckless indifference as part of its definition of “wantonness,” it
also appears to require an intentional act done with knowledge of the risk of harm
it could cause to another as part of its definitions of wantonness and maliciousness.
This contrasts with the crime of felony DUI, which typically requires a only
reckless action, and Begay therefore does not resolve the question.
Green does not identify any binding case law from this Court, or a settled
line of cases from other circuits, addressing whether the crime of throwing a deadly
missile is a crime of violence. We therefore conclude that because the issue is
unresolved, the district court’s finding that Green’s prior crime was a crime of
violence was not, and could not have been, plain error.
Last but not least, we do agree with the parties that the district court’s
judgment contains a clerical error regarding Green’s sentence on count one.
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“[W]hen the orally-imposed sentence differs from the written order of judgment,
the oral sentence controls.” United States v. Jones, 289 F.3d 1260, 1264 n.5 (11th
Cir. 2002). If the district court’s judgment contains a clerical error, we will vacate
and remand with instructions that the district court correct the error. United States
v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).
The parties agree and the record demonstrates that the district court’s
judgment improperly said that Green’s sentence for count one was 160 months’
imprisonment, whereas the district court orally imposed a 120-month sentence, on
count one. Accordingly, we affirm Green’s convictions and sentence, but vacate
and remand for the limited purpose of correcting the clerical error in the judgment
regarding the length of his sentence on count one.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
WITH INSTRUCTIONS.
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