[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14142 JUNE 30, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00182-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLINTON LEMONT PETTAWAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 30, 2009)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Clinton Lemont Pettaway appeals his sentence resulting from an
enhancement, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), for brandishing a firearm
that he used or carried during and in relation to, or possessed in furtherance of, a
drug trafficking crime, here, possessing with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1). On appeal, Pettaway argues that he brandished
the firearm while attempting to buy cocaine base, not while selling cocaine, and,
accordingly, did not brandish the firearm “in relation to” the underlying drug
trafficking offense. After careful review, we affirm.
The interpretation of a criminal statute is a question of law that we review de
novo. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
Section 924 provides:
[A]ny person who, during and in relation to any . . . drug trafficking
crime . . . , uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime . . .
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years;
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) defines a single criminal offense
for using or carrying a firearm during a crime of violence, while the “brandished”
and “discharged” subsections are sentencing factors. See United States v. Gray,
260 F.3d 1267, 1281-82 (11th Cir. 2001).
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To satisfy the possession-in-furtherance-of prong of the offense, the
government must show that there was a nexus between the possession and the
underlying offense, such that the defendant’s possession of the firearm “helped,
furthered, promoted, or advanced the drug trafficking.” United States v. Timmons,
283 F.3d 1246, 1252 (11th Cir. 2002). The nexus:
can be established by the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon, whether the
weapon is stolen, the status of the possession (legitimate or illegal),
whether the gun is loaded, proximity to the drugs or drug profits, and
the time and circumstances under which the gun is found.
Id. at 1253 (quotation omitted). The Supreme Court, in holding that the
“discharge” sentencing-factor enhancement requires no separate proof of intent,
recently rejected the construction of § 924(c)(1)(A) as applying the “in relation to”
and “in furtherance” phrases to the sentencing-factor subsections. See Dean v.
United States, 129 S. Ct. 1849, 1854, 1856 (2009). Finally, a firearm is
“brandished” if the defendant displays all or part of the firearm, or otherwise
makes its presence known to another person, in order to intimidate that person. 18
U.S.C. § 924(c)(4).
As applied here, the Supreme Court’s recent construction of § 924(c)(1)(A)
indicates that the government did not need to prove that Pettaway brandished the
firearm “in relation to” or “in furtherance of” the drug trafficking crime. See Dean,
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129 S. Ct. at 1854. Rather, the government needed to establish only that Pettaway:
(1) used or carried the firearm in relation to, or possessed the firearm in furtherance
of, the drug trafficking offense, i.e., that he committed the elements of an offense
under § 924(c)(1)(A); and (2) brandished the firearm at that time.
The first part was established by Pettaway’s conviction on Count Two,
which he does not challenge. Indeed, the trial testimony and PSI readily supported
the inferences that the firearm, which Pettaway possessed illegally as a convicted
felon, was on his person (as was the crack cocaine), was loaded, had an obliterated
serial number, and was used to beat another man during a fight arising out of some
type of drug deal. Accordingly, the nexus between the gun and his possession with
intent to distribute crack cocaine was established by the accessibility of the gun, its
proximity to the drugs, the likelihood that the weapon was stolen, the fact that he
possessed it illegally, and the time and circumstances under which it was found.
See Timmons, 283 F.3d at 1253.
The government clearly satisfied the brandishing prong as well, by
demonstrating that Pettaway displayed the firearm or made its presence known in
order to intimidate another, as the evidence at trial plainly demonstrated that
Pettaway pistol-whipped the other man during a fight. See 18 U.S.C. § 924(c)(4).
In addition, the sentencing enhancement was proper because the brandishing was
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done in the course of the underlying offense -- possessing the firearm in
furtherance of possessing with intent to distribute crack cocaine. Cf. Dean, 129 S.
Ct. at 1854, 1856. In short, the district court did not err in applying the
enhancement.
AFFIRMED.
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